                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                       In the                                   March 27, 2007
United States Court of Appeals                               Charles R. Fulbruge III
            for the Fifth Circuit                                    Clerk



                  _______________

                    m 05-11231
                  _______________

          UNITED STATES OF AMERICA

                                       Plaintiff-Appellee,

                       VERSUS

              MACULLON FREEMAN,
        ALSO KNOWN AS TED LEWIS BROWN,

                                       Defendant-Appellant.

 * * * * * * * * * * * * ** * * * * * * * * * * * * * *

                  _______________

                    m 05-11254
                  _______________

          UNITED STATES OF AMERICA,

                                       Plaintiff-Appellant.

                       VERSUS

           KENNETH ANTHONY CHAN,

                                       Defendant-Appellant.
                                     _________________________

                             Appeals from the United States District Court
                                  for the Northern District of Texas
                                   __________________________



Before HIGGINBOTHAM, SMITH, and                           own. He consented to a search of the bag,
  DEMOSS, Circuit Judges.                                 which turned up nothing of significance. The
                                                          officer asked Freeman whether he had any oth-
JERRY E. SMITH, Circuit Judge:                            er baggage; Freeman responded that he did
                                                          not.
   Macullon Freeman and Kenneth Chan were
convicted of possession with intent to distrib-               Officer Morton then spoke with Chan,
ute cocaine. They appeal the denial of a mo-              whom he had seen talking to Freeman. Mor-
tion to suppress evidence found in a backpack             ton asked for Chan’s train ticket; Chan said it
during a search of their shared sleeping car.             was in the sleeping car and he would not mind
Because the consent was voluntary and a rea-              getting it. Morton followed Chan into the
sonable officer would have believed that Chan             train, waiting outside the room while Chan re-
had authority to consent and that his consent             trieved the ticket. Morton asked Chan wheth-
covered the backpack, we affirm.                          er the bags in the room were his; Chan said
                                                          they were. Morton asked Chan whether he
                       I.                                 would consent to a search; Chan consented
   Four law enforcement agents approached                 and confirmed that he had no bags other than
the defendants on a train platform in Fort                the ones inside the room.
Worth because of defendants’ suspicious itin-
erary.1 Officer Gregg identified himself as an                Morton entered the room to search; he later
officer and asked Freeman whether he had a                testified that the only things immediately visi-
bag in the storage area on the lower end of the           ble were a small leather binder and a shaving
train. Freeman identified himself as “Ted                 kit. Behind a chair in the room, in a large
Brown” and claimed an untagged bag as his                 pocket, Morton found a black backpack.
                                                          Inside he found two large blocks of cocaine,
                                                          along with airline tickets and motel receipts in
   1
                                                          the name of Ted Brown. At no point did Mor-
     The two defendants had made a last-minute,           ton ask Chan whether the backpack was his or
one-way reservation of a sleeping car from San
                                                          for consent to look in the backpack.
Antonio to Washington, D.C., on Chan’s credit
card. Because reasonable suspicion is not neces-
sary for officers to approach individuals in public          At the suppression hearing the district court
areas, we express no opinion on whether the offi-         found that Chan had given verbal consent to
cers had reasonable suspicion to instigate a Terry        search the room and that the officer would
stop. See, e.g., Terry v. Ohio, 392 U.S. 1, 19 n.16       have reasonably believed that this included
(1968); Florida v. Royer, 460 U.S. 491, 497-98            consent to search bags in the room. The
(1983) (plurality).

                                                      2
court initially granted the suppression motion,            consent, the next issue is whether it was vol-
however, concluding that “I’ve been provided               untary.4 Voluntariness is to be determined
no authority by the government that consent to             based on the totality of the circumstances, with
search the room carried with it consent to                 the burden of proof on the government.5
search the backpack.” The next day, the court
reversed its ruling, concluding that the proper               If the government demonstrates voluntary
legal test was one of “objective reasonable-               consent, two issues remain: whether the search
ness” and finding that it was objectively rea-             was within the scope of the consent;6 and
sonable for Morton to believe Chan’s consent               whether the consenting individual had author-
included consent to search the backpack, be-               ity to consent.7 Unlike the first two issues,
cause it was in plain sight.                               scope and authority are not determined based
                                                           on a totality-of-the-circumstances standard,
                       II.                                 but by a reasonable-officer standard.8 The
   When courts review a search justified by
consent, there are four distinct issues. United
States v. Dilley, 2007 WL 624207, at *1 (5th                  4
                                                                See Schneckloth v. Bustamonte, 412 U.S. 218,
Cir. Mar. 2, 2007). First, as a threshold mat-             222 (analyzing voluntariness under a totality-of-
ter, the government must demonstrate that the              the-circumstances test).
defendant did consent.2 If he consents, proba-
                                                              5
ble cause analysis is inapplicable, and the                       Id.
search is measured against the general Fourth
                                                              6
Amendment requirement of reasonableness.3                        See United States v. Ibarra, 965 F.2d 1354,
Existence of consent is determined based on                1356 n.2 (5th Cir. 1992) (en banc) (per curiam)
the totality of the circumstances. See, e.g.,              (affirming by equally-divided court) (“Government
                                                           has the burden of proving the search was conduct-
Price, 54 F.3d at 345.
                                                           ed within the scope of the consent received.”).
   Once the government has demonstrated                       7
                                                                See United States v. Matlock, 415 U.S. 164,
                                                           169-71 (1974) (considering whether police can rely
                                                           on consent of third party); Rodriguez, 497 U.S. at
   2
     See United States v. Price, 54 F.3d 342, 346          183-89 (same).
(7th Cir. 1995) (examining whether a defendant
                                                              8
who responded “Sure” meant “Sure you can                         See Florida v. Jimeno, 500 U.S. 248, 251
search” or “Sure, I mind if you search”); United           (1991) (“The standard for measuring the scope of
States v. Barrington, 210 F. Supp. 2d 773, 778             a suspect’s consent under the Fourth Amendment
(E.D. Va. 2002) (same).                                    is that of “objective” reasonablenessSSwhat would
                                                           the typical reasonable person have understood by
   3
     See Illinois v. Rodriguez, 497 U.S. 177, 183          the exchange between the officer and the sus-
(1990) (“What [the defendant] is assured by the            pect?”); Rodriguez, 497 U.S. at 186-88 (“Whether
Fourth Amendment itself, however, is not that no           the basis for such authority [to consent] exists is
government search of his house will occur unless           the sort of recurring factual question to which law
he consents; but that no such search will occur that       enforcement officials must be expected to apply
is ‘unreasonable.’”). Even where police have ob-           their judgment, and all the Fourth Amendment re-
tained a search warrant, if the suspect consents           quires is that they answer it reasonably. . . .
they need not execute the warrant. United States           Would the facts available to the officer at the mo-
v. Lee, 356 F.3d 831 (8th Cir. 2003).                                                            (continued...)

                                                       3
burden of proof remains on the government.                 United States v. Kelley, 981 F.2d 1464, 1470
                                                           (5th Cir. 1993) (citations omitted).
   Because all four issues are factual, we re-
view the district court’s determinations for                  The district court made a finding of volun-
clear error.9 We review its ultimate Fourth                tariness after an oral hearing, so our review
Amendment conclusions de novo. United                      under the clearly erroneous standard is partic-
States v. Gonzalez, 328 F.3d 755, 758 (5th                 ularly deferential. Id. Freeman and Chan have
Cir. 2003).                                                not made the necessary showing.

                      III.                                     At the time of Chan’s consent, he was not
   The defendants do not dispute that Chan                 in custody. Although the officer had identified
consented to a search of the sleeping car.                 himself as a policeman, there was no indication
They do allege that his consent was not volun-             that the defendants were not free to leave; this
tary because Chan was not informed that he                 suggests the interaction was an encounter.10
could refuse consent, and the agents were                  The defendants proffer no substantial evidence
armed.                                                     of coercion.

  This circuit uses a six-factor test to deter-               Chan was cooperative, which suggests vol-
mine voluntariness:                                        untariness, and although he was not informed
                                                           that he could deny consent, this fact is “not to
   (1) the voluntariness of the defendant’s                be given controlling significance.” United
   custodial status; (2) the presence of coer-             States v. Watson, 423 U.S. 411, 425 (1976).
   cive police procedures; (3) the extent and
   level of the defendant’s cooperation with                  The defendants presented no evidence that
   the police; (4) the defendant’s awareness of            Chan was unaware of his right to deny con-
   his right to refuse to consent; (5) the defen-          sent, nor any evidence that he was mentally
   dant’s education and intelligence; and                  deficient or unable to exercise his free will in
   (6) the defendant’s belief that no incrimin-            consenting. Finally, although incriminating ev-
   ating evidence will be found. All six factors           idence was found, Chan argued at trial that he
   are relevant, but no single one is dispositive          was unaware of the cocaine, an argument that
   or controlling.
                                                              10
                                                                 See Royer, 460 U.S. at 497-98 (“[L]aw en-
   8                                                       forcement officers do not violate the Fourth
    (...continued)
ment warrant a man of reasonable caution in the            Amendment by merely approaching an individual
belief that the consenting party had authority over        on the street or in another public place, by asking
the premises?”).                                           him if he is willing to answer some questions, by
                                                           putting questions to him if the person is willing to
   9
     Price, 54 F.3d at 345. See also United States         listen, or by offering in evidence in a criminal pro-
v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)             secution his voluntary answers to such questions.
(“Where the judge bases a finding of consent on the        Nor would the fact that the officer identifies him-
oral testimony at a suppression hearing, the clearly       self as a police officer, without more, convert the
erroneous standard is particularly strong since the        encounter into a seizure requiring some level of ob-
judge had the opportunity to observe the demeanor          jective justification.”) (plurality) (citations
of the witnesses.”).                                       omitted).

                                                       4
suggests the voluntariness of consent.                   consent.”11

                      IV.                                   It is undisputed that Chan had watched the
   Defendants argue that the district court              police examine the contents of Freeman’s bag
committed clear error in holding, after revers-          and that the officer asked Chan whether the
ing its oral pronouncement, that the backpack            bags in the room were his. A reasonable offi-
was within the scope of Chan’s consent. They             cer could certainly assume that consent to
aver that Chan’s consent to search the room              search the room included consent to search
did not authorize the search of a closed back-           any unlocked bags in the room. A reasonable
pack inside the room.                                    officer could also assume that Chan, having
                                                         traveled in the railroad car from San Antonio
    This argument is foreclosed by Florida v.            to Fort Worth, would be aware of the contents
Jimeno, 500 U.S. 248 (1991). There, a police             of the car. Because Chan did not attempt to
officer initiated a valid vehicle stop, then asked       limit his consent, the officer was not constitu-
the driver for permission to search the car. Af-         tionally unreasonable by construing Chan’s
ter receiving consent, during the search the of-         consent to include the backpack.
ficer found a closed bag on the floor and
opened it to reveal a kilogram of cocaine.                                     V.
                                                             The defendants argue that Chan lacked au-
   In analyzing whether consent to search the            thority to consent to a search of Freeman’s
car extended to closed containers in the car,            backpack. They point to United States v. Jar-
the Court recognized that “the touchstone of             as, 86 F.3d 383 (5th Cir. 1996), as establishing
the Fourteenth Amendment is reasonableness.”             that the government must demonstrate that the
Id. at 250. Noting that the officer had in-              officers “reasonably (though erroneously) be-
formed the defendant that he suspected drugs             lieved that the person who has consented to
were in the car and that the defendant had put           their search had authority to do so.” Id. at 389
no “explicit limitation” on the scope of the             (citing Rodriguez, 497 U.S. at 186 (internal
search, the Court concluded that “if his con-            quotations omitted)). Although the defendants
sent would reasonably be understood to ex-               cite the correct standard for apparent author-
tend to a particular container, the Fourth               ity, the government made the necessary show-
Amendment provides no grounds for requiring              ing in this case.
a more explicit authorization.” Id. at 252.
                                                             In Rodriguez, police searched an apartment
   The Court specifically rejected the notion            after obtaining consent from the defendant’s
that an officer should be required to request            girlfriend, who had no property interest in the
permission before searching each individual              apartment. The Court stated that the test was
container. Id. Interpreting Jimeno, we have              whether “the facts available to the officer at
noted that “the defendant, as the individual             the moment [would] warrant a man of reason-
knowing the contents of the [searched area],             able caution in the belief that the consenting
has the responsibility to limit the scope of the

                                                            11
                                                              United States v. McSween, 53 F.3d 684, 688
                                                         (5th Cir. 1995) (citing United States v. Rich, 992
                                                         F.2d 502, 507 (5th Cir. 1993)).

                                                     5
party had authority over the premises?” Id. at         when it concluded as much.12
188 (ellipses and citations omitted). The
Court remanded so that the lower court could              AFFIRMED.
determine whether the officers reasonably be-
lieved that the girlfriend had authority to
consent.

   In Jaras, a defendant moved to suppress
evidence found in two suitcases in the trunk of
the car he was riding in. Although the driver
gave consent to search the car, he specifically
informed the police that the suitcases belonged
to the defendant, a passenger. Nevertheless,
the police opened the suitcases without obtain-
ing consent from the defendant. We noted
that there could be no claim that the driver
possessed actual authority over the suitcases,
because there was no showing of mutual use
or joint access and control. Jaras, 86 F.3d at
389. Similarly, there could be no claim of ap-
parent authority, because the consenting party
informed the officers that the suitcases did not
belong to him. Id. at 389-90. No reasonable
officer could have believed that the driver had
authority to consent, so the search could not
be justified based on the driver’s consent.

   The present facts are distinguishable from
those in Jaras. Morton could not have known               12
                                                             Alternatively, Chan may have had actual au-
that the backpack belonged to Freeman until            thority over the backpack, based on his co-occu-
after he had already opened it. He could also          pancy of the sleeping car. Where two individuals
reasonably rely on Chan’s statement that all           are co-tenants or co-occupants, they assume the
the bags in the room were his. Chan had just           risk that the co-user may consent to a search.
exited the sleeping car before making the              United States v. Richard, 994 F.2d 244, 250 (5th
statement and had traveled in the car from San         Cir. 1993). “Unless the complaining co-tenant has
Antonio to Fort Worth; it was reasonable to            somehow limited the other’s access to a piece of
                                                       property, the consenting co-tenant’s authority ex-
believe he would have been aware of any bags
                                                       tends to all items on the premises.” Id. In Ri-
contained therein. Morton had also heard               chard, this court found that the defendant’s girl-
Freeman state to the other officers that he had        friend had authority to consent to a search of their
no other luggage. A reasonable officer could           hotel room, in which a number of suitcases belong-
believe that the bag belonged to Chan and that         ing to the defendant were seized. Similarly, Chan
he had authority to consent to its search, and         had access to the entire sleeping car and had au-
the district court was not clearly erroneous           thority to consent to a search of the car, including
                                                       any items on the premises, such as the backpack.

                                                   6
