IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-30115

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

ELWIN DEMETRIUS BOONE,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Middle District of Louisiana

 

(October 5, 1995)

Before HIGGINBOTHAM, DUHÉ, and EMILIO GARZA, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Elwin Boone pled guilty to possessing marijuana with intent to

distribute and to carrying a firearm while committing a drugrelated offense. Boone reserved his right to appeal the district

judge's denial of his motion to suppress the marijuana and the gun.

In response to Boone's exercise of his right, we affirm.

The facts concern an encounter between law enforcement

officials and Boone, and Boone's challenge rests on the Fourth

Amendment. In such a case, our role is well settled. We accept

the district court's findings of fact unless they are clearly

erroneous or influenced by an incorrect view of the law. United

States v. Garcia, 849 F.2d 917, 917 n.1 (5th Cir. 1988). We view
 

1 Because our decision would be the same regardless of the

standard of review, we do not examine this apparent intra-circuit

conflict.

2

the evidence in the light most favorable to the party prevailing

below, id., and we keep these principles most firmly in mind when

reviewing "credibility determinations[,] because the trier of fact

has seen and judged the witnesses." United States v. Breeland, II,

53 F.3d 100, 103 (5th Cir. 1995) (internal quotation omitted). We

review de novo the district court's ultimate conclusions on Fourth

Amendment issues. United States v. Diez, 977 F.2d 163, 164 (5th

Cir. 1992). But see United States v. Valdiosera-Godinez, 932 F.2d

1093, 1098 n.1 (5th Cir. 1991) (holding that appellate courts

should apply the clear error standard to a trial court's

determination of whether a seizure occurred), cert. denied, 113 S.

Ct. 2369 (1993).1

We pause to note that these preliminary statements are more

than boilerplate. We do not sit to resolve conflicts in

descriptions of events. We do not find compelling arguments based

on "facts" inconsistent with those found by a district judge on the

basis of credible oral testimony, even when another credible

witness presents contradictory evidence.

Boone's primary argument is that his encounter with Customs

Agent Moorehouse constituted an illegal seizure because law

enforcement officials did not possess reasonable suspicion of

wrongdoing. See Terry v. Ohio, 392 U.S. 1 (1968). The district

court held that the encounter did not constitute a seizure and
3

therefore that no reasonable suspicion was needed. We agree with

the court below.

Boone's first contention is that the district court committed

clear error by crediting the law enforcement officers' version of

the events because of alleged contradictions in the officers'

testimony. We disagree. Those contradictions that actually

existed dealt with details irrelevant to the issue of whether a

seizure occurred. One concerned whether agents communicated orally

or with hand motions. Another focused on the fact that an officer

outside a bus could not hear conversation inside, but an officer

inside the bus could hear conversation outside. A third consists

of the fact that an officer in a police report wrote that agents

boarding the bus identified themselves as law enforcement, but on

cross-examination he admitted that he was presuming that the agents

did so from his knowledge of standard procedure. None of these

differences in the description of events bears a connection to the

facts relevant to a Terry analysis, and they are not sufficiently

egregious or numerous to allow an appellate court to overrule a

district court's findings on credibility.

Boone renews his Terry stop argument on the grounds that the

events as found by the district court compel us to hold that a

seizure occurred. The facts relevant to this analysis are as

follows. Detective Johnson and Agent Chirinos boarded the bus,

identified themselves as a law enforcement officials, informed the

passengers that they were looking for contraband and illegal

immigrants, and asked everyone to leave the bus. Several law
4

enforcement officials were stationed outside, all carrying visible

guns in hip holsters and wearing some insignia of authority. In

particular, Agent Moorehouse stationed himself near the terminal

door to watch the passengers file in. Boone passed Moorehouse in

line. Moorehouse then caught up with Boone, tapped him on the

shoulder, and asked in a businesslike and courteous tone of voice

to speak with him. Boone agreed.

Boone and Moorehouse then stepped four feet away from the line

of passengers filing into the terminal. Several people moved in

and out of the terminal around where the two men were standing.

Continuing to speak in a calm tone of voice, Moorehouse asked Boone

for his name and some identification. Boone responded by handing

Moorehouse his bus ticket. Moorehouse examined the ticket, which

was issued to "D. Jackson," and asked what the "D" stood for.

Boone replied that D. Jackson was an alias and that his real name

was Elwin Boone. Moorehouse asked Boone where he was coming from,

where he was going, and how long he had spent in his point of

origin. Boone replied Houston, Mobile, and two days. Agent

Moorehouse asked Boone for whom he worked, and Boone responded that

he was unemployed and had been looking for work in Houston. Agent

Moorehouse asked Boone if he had checked any luggage, and Boone

replied that he had only the carry bag. Moorehouse then requested

for Boone's consent to search the bag. The encounter lasted around

five minutes.

We find this a close case, but ultimately agree with the

district court that no seizure occurred. We focus initially on the
 

2 Boone, surprisingly, does not focus on this fact in his

brief.

5

moment at which Moorehouse tapped Boone on the shoulder and asked

if he would answer a few questions. Had this been the first

interaction between Boone and law enforcement, we would have little

difficulty labeling the encounter innocuous. But Boone was

previously diverted from his intended course of action when the

officers, showing significant signs of authority and stating their

business as law enforcement, ordered him off the bus.2 But see

United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir.

1991) (holding that law enforcement officials' request via hand

signals that suspects join them outside a rental unit did not make

the encounter a seizure), cert. denied, 113 S. Ct. 2369 (1993).

Stopping Boone after the previous statement that the officers were

looking for contraband and illegal immigrants implied that Boone

himself was suspect of illegal activity. See United States v.

Glass, 741 F.2d 83, 85 (5th Cir. 1984) (holding that the defendants

were seized when officers informed them that they were suspected of

illegal activity). Nevertheless, the order to leave the bus was a

general one, the rest of the setting public, and Moorehouse's

request communicated in a noncoercive manner. The implication that

the officers suspected Boone of illegal activity is only that.

From Boone's point of view, Moorehouse might have been choosing

passengers randomly as the they alighted from the bus. A

reasonable person would have considered herself free to refuse

Moorehouse's request. See Florida v. Bostick, 501 U.S. 429, 436
 

3 We disagree with Boone that United States v. Gonzales, 842

F.2d 748, 752 (5th Cir. 1988), created a per se rule that any

physical contact whatsoever between a law enforcement officer and

a citizen constitutes a seizure. On the contrary, Gonzales held

that physical contact between the officer and the citizen "has been

consistently regarded by this Court as persuasive evidence that a

fourth amendment seizure has occurred." 842 F.2d at 752. The

persuasive force of the contact is proportional to its coerciveness

and intrusiveness. It is difficult to imagine a form of physical

contact less coercive or intrusive than a tap on the shoulder to

get attention.

6

(1991) (holding that no seizure occurs when "a reasonable person

would feel free to decline the officers' requests or otherwise

terminate the encounter"); INS v. Delgado, 466 U.S. 210, 220 (1984)

(holding that an INS official's brief questioning of a factory

worker, after a brief tap on the shoulder to gain her attention,

did not constitute a seizure).3

We now consider the rest of the encounter. At this point,

Moorehouse asked Boone a series of questions, many of these while

holding Boone's ticket. The scope and number of these questions

exceeded a minimal request for name, identification, and business,

but not by much. The encounter lasted longer than a minimal street

interaction, but not by much. Moorehouse was holding Boone's

ticket during most of these questions, but Boone had offered the

ticket. Moreover, many of Moorehouse's inquiries concerned

information from the ticket, suggesting to a reasonable person that

Moorehouse was not holding the ticket to assure she remained

nearby. See United States v. Berry, 670 F.2d 583, 597 (5th Cir.

1982) (holding a suspect's ticket in view for a minimal amount of

time does not elevate the encounter into a seizure). There were

several police officers around, but the encounter occurred in a
7

public place with many people coming and going. See United States

v. Berd, 634 F.2d 979, 985 (5th Cir. 1981) (airport). The officers

asked Boone to step four feet away to allow passengers to continue

to flow into the terminal, but no one restricted Boone's freedom of

movement on the tarmac, and the encounter might have felt a good

deal more coercive and urgent had several impatient passengers

remained at Boone's back. See Berry, 670 F.2d at 597 (stating that

"blocking an individual's path or otherwise intercepting him to

prevent his progress in any way is a consideration of great, and

probably decisive, significance"). Again, we find this case to be

close. But remembering that Boone was free to refuse the initial

questioning altogether, we agree with the district court that a

reasonable person would have considered herself free to ask for the

ticket's return and to terminate the encounter.

Given our characterization of the encounters between Boone and

law enforcement officials as consensual, and our agreement with the

district court that Boone was free to terminate the encounter at

any time, we also affirm the district court's ruling that Boone

voluntarily consented to the search of his bag.

AFFIRMED.