* District Judge of the Eastern District of Louisiana,

sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 93-2633

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEITH WENDELL COOPER,

Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_______________________________________________

(January 13, 1995)

Before JONES and STEWART, Circuit Judges, and DUPLANTIER *

, District

Judge.

CARL E. STEWART, Circuit Judge:

This case involves the issue of whether a sus pect's Fourth

Amendment rights were violat ed when police conducted a pat-down

search of his outer clothing and subsequently arrested him for

p ossession of crack cocaine, which the officer could identify by

feeling through the defendant's clothing. Finding no error in the

district court's denial of defendant's motion to suppress evidence

of the drugs, we AFFIRM.

Facts and Proceedings Below

Defendant, Keith Wendell Cooper, was convicted after a bench

trial on federal charges of possession with intent to distribute2

more than 50 grams of cocaine base (crack) and was sentenced to 121

months incarceration, five years of supervised release, and a $50

special assessment. He filed a pretrial motion to suppress,

alleging that the search of his person was unconstitutional because

a reasonable person would not have understood that he could refuse

the officer's request to conduct a pat-down body search. After a

hearing on the motion was conducted in conjunction with the bench

trial, the district court denied the motion, finding that Cooper

consented to the search.

On February 1, 1993, Houston police officers Bill Corley and

James Ellis were conducting surveillance at the Greyhound Bus

Station looking for narcotics tr affickers. Officers Corley and

Ellis were both twenty-three year veteran s of the Houston Police

Department. Corley had worked in the narcotics division of the

department for eight years. Ellis was sergeant in the narcotics

division. Corley and Ellis were assigned to the narcotics

interdiction unit, regularly conducting surveillance at train

stations, bus stations, airports, etc ., to identify drug

traffickers.

Officer Corley testified at the suppression hearing/trial that

he observed defendant, a 26-year-old man with a tenth grade

education, entering a side door on the south side of the gate area

of the station ("side gate" no. 14). The side gate was actually a

passageway for inbound and outbound bus passengers, c alled a

"boarding gate." At the time, no bus was parked at the gate.

Corley had no prior knowledge concerning Cooper. Corley testified3

that Cooper rapidly scanned the area, looking back several times,

as he walked across the gate area to Gate 9 carrying a small gym

bag. Corley testified that he first became suspicious of Cooper

because he entered the station through the side gat e, something

which he deemed unusual and which he deemed characteristi c of

narcotics traffickers. Corley also testified that he does not

remember ever witnessing anyone entering the station through that

gate who did not turn out to be carrying drugs. He testified that

drug traffickers are aware that police watch the ticket counter, so

they enter through the side gate, which allows them to bypass the

counter. C orley also testified that Cooper constantly and

rapidly scanned the area, carried a small bag that would not hold

many clothes, and arrived very shortly be fore the bus was due to

leave. These factors also made the officers suspicious, because

these actions are characteristic of drug traffickers. Corley

testified that Cooper once again scanned the area behind him as he

boarded the bus.

Cooper testified for the limited purpose of the motion to

suppress. He denied that he was looking back over his shoulder as

he walked through the bus station lobby. He confirmed that he

entered the side entrance to the terminal, but claimed to have

entered through gate no. 15 and that he walke d directly to a pay

phone to make a collect call. He claimed to have then waited until

the bus was called and then walked through gate no. 9 to board the

bus. For the next 5-6 minutes, he claimed he donned earphones and

listened to a personal radio.4

Corley further testified that after Cooper boarded the bus,

their suspicions aroused, he and Ellis made inquiries and

ascertained th at Cooper was headed for Pascagoula, Mississippi.

They then boarded the bus Cooper had boarded. Ellis sat down in

the driver's seat and Corley proceeded to the rear of the bus and

entered the seat behind Cooper. Corley testified that as he walked

past Cooper, he observed that Cooper was squirming around in his

seat and that below Cooper's belt there was an unusual horizontal

bulge between the crotch area and the waistline. Corley testified

that this area is a common place for drug traffickers to hide drugs

because male police o fficers may feel hesitant about carefully

patting down this area of a male suspect, and they may not do a

thorough enough job to locate the drugs. Cooper insisted that the

package of crack was not discernable beneath his clothing, because

he was wearing baggy clothes.

Corley testified that he identified himself as a police

officer and asked if he coul d talk to Cooper. Ellis was out of

earshot of the ensuing conversation bet ween Cooper and Corley,

although he confirmed that Corley displ ayed his police badge to

Cooper at the outset of their conversation. Corley admitted that

he did no t advise Cooper that he did not have to speak with him;

nevertheless, Cooper engaged in a conversation with Corley.

Corley testified that he asked Cooper hi s destination, to

which Cooper replied Pascagoula, Mississippi. In response to

Corley's question regarding the duration of his visit, Corley

stated that Cooper answered that he intended to remain in1 Corley said he recognized the offer to inspect the bag as a

diversionary tactic often employed by individuals carrying drugs on their person.

5 Pascagoula one day. Corley testified that when Cooper produced the

bus ticket for Corley's inspection, his hands were shaking. Corley

also testified that Cooper became visibly more shaken as the

conversation ensued. Corley observed that the ticket was a one-way

ticket and had been purchased two hours prior to Cooper's arrival

at the bus station. Corley found the advance purchase and the fact

that Cooper had purchased only a one-way ticket when he knew he was

going to be in Pascagoula only one day both suspicious and

characteristic of drug traffickers. Corley maintains that he gave

the ticket back to Cooper and asked if he had any identification,

to which Cooper replied that he did not. Corley stated he then

advised Cooper that he was a narcotics officer and that Cooper

immediately asked Corley if he wanted to look in his gym bag. 1

Ellis also testified that he saw Cooper pull out the bag and place

it on an adjacent seat before Corley inspected it. The gym bag

contained a shirt and pair of pants.

Corley testified that he then asked Cooper if he "wouldn't

m ind standing up and letting me pat him down." According to

Corley, Cooper replied "no" and stood up. Officer Ellis also

testified that Cooper stood up voluntarily, although he could not

hear the conversation between Cooper and Corley. As Corley patted

Cooper down, he felt the suspicious bulge between his waist and

crotch. He stated that he immediately recognized the contents of

the bulge to be round wafers of crack cocaine. The officer said he6

asked Cooper to identify the bulg e, and that Cooper remained

silent. The officer then placed Cooper under arrest, handcuffed

him, and escorted him out of the bus. Corley testified that Cooper

did not protest or withdraw his consent while conversing with the

officer. Once Cooper was taken off the bus and led to a bus

terminal office, Corley located nine wafers of crack cocaine in a

plastic baggie inside of Cooper's underwear, weighing approximately

241 grams (8.5

- 9 oz.) and having a street value of approximately

$19,000.

After he was given his M iranda warnings, Corley stated tha t

Cooper blurted out "Damn, who snitched me off?" Corley estimated

that fewer than five minutes had elapsed from the moment the

officers entered the bus until Cooper con sented to the pat-down,

was arrested, and was escorted off the bus.

Cooper's version of what happened when Corley approached him

differs. Cooper testified that Corley approached him from the

aisle, identified himself as a police officer and displayed his

badge. He says that the officer asked him if he was carrying any

firearms, and peered at the gym bag. Cooper claims that Corley

asked him if the bag contained narcotics, to which Cooper said he

responded "no" and offered to let the officer inspect the bag.

Cooper testified that Corley then inspected Cooper's gym bag,

patted Cooper down while he was still seated, and then pulled

Cooper up and searched him again. When Corley was questioning him

and patting him down, Cooper claimed he was "a little scared" and

felt that it he had tried to move, Corley "pro bably [would have7

become] physical." Cooper testified that he did not feel that he

could leave the bus. Cooper testified that he did not consent to

a body search at any time, and that Corley began touching him as

soon as he showed his police badge. Cooper said that he only

consented to a search of his bag. He said that he did not verbally

object when Corley touched him because he was scared.

The district court apparently accepted the officers' version

of what happened during the encounter, thereby rejecting Cooper's

c ontention that he was jerked to his feet and searche d. The

district court concluded that Cooper had consented to the pat-down.

Standard of Review

Appellate review of a district court's ruling on a motion to

suppress based on testimony at a suppression hearing is subject to

the clearly erroneous standard. U nited States v. Bradley

, 923 F.2d

362, 364 (5th Cir. 1991).

The Government has the burden of proving by a preponderance of

the evidence that a consent to search was voluntary. U nited States

v. Yeagin

, 927 F.2d 798, 800 (5th Cir. 1991); U nited States v.

Ponce , 8 F.3d 989, 997 (5th Cir. 1993). The voluntariness of

consent is a question of fact to be determined from a totality of

the circumstances. Schneckloth v. Bustamonte , 412 U.S. 218, 227,

93 S.Ct 2041, 2048, 36 L.Ed.2d 854 (1973). We review a trial

court's finding of voluntariness for clear error. U nited States v.

Olivier-Becerril , 861 F.2d 424, 425-26 (5th Cir. 1988).

This court consid ers six factors when evaluating the

voluntariness of consent:2 For constitutional purposes, nonresistance may not be equated

with consent. U nited States v. Most

, 876 F.2d 191, 199 (D.C. Cir.

1989).

8 (1)the defendant's custodial status;

(2) the presence of coercive police procedures;

(3) the extent and level of the defendant's cooperation with

the police;

(4) the defendant's awareness of his right to refuse consent;

(5) the defendant's education and intelligence

(6) the defendant's belief that no incriminating evidence will

be found.

United States v. Ruigomez

, 702 F.2d 61, 65 (5th Cir. 1983); United

States v. Kelley

, 981 F.2d 1464, 1470 (5th Ci r. 1993). N o one

factor is dispositive in determining the voluntariness of consent.

See United States v. Gonzales

, 842 F.2d 748, 754-55 (5th Cir.

1988), overruled on other grounds

, United States v. Hurtado , 905

F.2d 74 (5th Cir. 1990); United States v. Ruigomez

, 702 F.2d at 65.

The ultimate conclusion on Fourth Amendment issues drawn from

the evidence is reviewed de novo. U nited States v. Roch

, 5 F.3d

894, 897 (5th Cir. 1993).

Analysis

The district court found that Cooper's lack of resistance

amounted to consent for the police officer to pat him down. The

court therefore concluded that the search was consensual. While we

d isagree that nonresistance amounts to consent, 2 we nonethele s s9

conclude that the district judge properly denied the motion to

suppress.

Cooper alleges that the district court erred in finding that

he consented to the pat-down search, because a reasonable person in

his circumstances would have felt compelled to cooperate. Thus,

h e asserts that his lack of resistance to the search was not

tantamount to consent. He points out that the police officer never

informed him that he did not have to cooperate. Given the indicia

of authority and power that police carry, Cooper argues that a

reasonable man would have felt compelled to cooperate. The judge

specifically found that Cooper's lack of resistance amount ed to

consent. Cooper argues that a reasonable person would have felt

compelled to acquiesce in the officer's r equests. Cooper argues

that compelled acquiescence is not consent that is freely and

voluntarily given.

Cooper cites Florida v. Bostick , 111 S.Ct. 2382, 115 L.Ed.2d

389 (1991) in support of his position that Corley's request to patdown Cooper was a seizure for Fourth Amendment purposes. In that

case, the Supreme Court considered the police practice of boarding

stopped passenger buses and approachi ng seated passengers to ask

questions and request consent to search. The Court concluded that

such a practice does not amount to a seizure in all instances, but

the Court sug gested that such a confrontation could become a

seizure if a reasonable person would not have felt free to decline

the officers' requests or to term inate the encounter. Under

Cooper's argument, the police off icer's conduct constituted an3 See Flo rida v. Royer , 460 U.S. 491, 103 S.Ct. 1319, 75

L.Ed.2d 229 (1983), discussed infra

.

10 illegal seizure vitiating any consent, implied or otherwise, Cooper

might have given. 3

The three types of police-citizen encounters

Our approach begins with some preliminary observations.

There are three types of encounters between police and individuals,

each with different ramifications under the Fourth Amendment. The

first is a consen sual encounter in which an individual willingly

agrees to speak to police officers. Such contact may be initiated

by the police without any objective level of suspicion. Without

more, a consensual encounter does not amount to a "seizure" under

the Fourth Amendment. "[E]ven when officers have no basis for

suspecting a particular individual, they may generally ask

questions of that individual

. . . ask to examine the individual's

identification

. . . ; and request consent to search his or her

luggage

. . . as long as the police do not convey a message that

compliance with their requests is required." Florida v. Bostick

,

supra , 111 S.Ct. 2382, 2386.

The second type of encounter, based on Terry v. Ohio

, 392 U.S.

1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), involves a limited

investigative stop. Prior to Terry v. Ohio , any restraint on the

person amounting to a seizure for purposes of the Fourth Amendment

was invalid unless justified by probable cause. T erry created a

limited exception to this g eneral rule: certain seizures are

justifiable under t he Fourth Amendment if there is articulable11

suspicion that a person has committed or is about to commit a

crime.

In Terry , a police officer observing three men on the street

became suspicious of their behavior. Although he was unable to say

precisely what first drew his eye to them, the 39-year veteran

officer noted that the men were strolling repeatedly back and forth

in front of a store and concluded that they appeared to be "casing"

the establishment, contemplating a robbery. The officer approached

the three men, identified himself as a police officer, and asked

for their names. Subsequently, he spun one of them around and

patted him down on the outside of his clothing and felt a pistol,

which he subsequently retrieved by removing the overcoat in which

it was located. He patted down the other two suspects, and he

retrieved a revolver from another. The Supreme Court held that the

limited frisk of the suspect's outer clothing to discover weapons

was justified in light of the officer's reasonable suspicion based

upon articulable facts that criminal activity might be afoot.

Terry , 20 L.Ed.2d at 911.

The third type of police-citizen encounter is an arrest --

plainly a Fourth Amendment "seizure" that must be based on probable

cause. A warrantless full-blown body search pursuant to a lawful

arrest is permissible.

The encounter between Corley, Ellis, and Cooper

A proper analysis of this case requires us to carefully follow

the chain of events leading up to the full search of Cooper during4 The Supreme Court noted in Bo stick that the mere fact that

the suspect did not feel free to leave the bus did not mean the

police had seized him. Bostick was a passenger on a bus that was

scheduled to depart. He would not have felt free to leave the bus

even if the police had not been present. Bostick's movements were

thus confined in a sense, the Court noted, but this was the natural

resu lt of his decision to take the bus; it says nothing about

whether or not the police conduct at issue was coercive. A similar

observation seems in order here. Moreover, we also note that it

seems more likely that Cooper would have been in an optimal

position to refuse the officer's requests -- he knew the bus was

scheduled to depart soon, so he knew the officers were going to

have to get off the bus or else be headed to Pascagoula,

Mississippi. Thus, he had a superior opportunity to hold them in

abeyance.

5 Although Cooper asserts that he did not en ter through the

gate indicated by the police, a careful review of the district

court's ruling indicates that the judge accepted the police

officers' testimony and disbelieved Cooper. The judge noted that

"[t]here are lots of reasons that Mr. Cooper could have entered

through the gate side," implicitly finding that Cooper had in fact

entered through the side gate as the officers suggested.

12 which the drugs were found, in order to determine if Cooper's

Fourth Amendment rights were violated at any time.

The initial contact w ith Cooper occurred when the officers

boarded the bus and began to ask Cooper questions. In B ostick

,

supra

, such a police procedure of boarding buses and asking

questions has been deemed constitutional unless a reasonable person

would not have felt free to terminate the encounter or decline the

officer's requests. 4 After Officers Corley and Ellis had noted

Cooper's suspicious manne r of entering the bus station, 5 and had

boarded the bus, Corley identified himself as a police officer to

Cooper and began to question him, asking for his ticket and

identification. We conclude that this initial contact with Cooper

clearly was a legitimate and completely consensual citizen-police

encounter to which a reasonable person would have felt free to6 There is also no allegation by Cooper that the officers were

attempting to prevent his possible escape from the bus by virtue of

the fact that officer Ellis positioned himself at the front of the

bus. In fact, there is nothing to indicate that Cooper knew that

Corley and Ellis were together or that Ellis was a police officer.

Thus, he could not have possi bly felt that he was "hemmed in" by

Ellis at the bus door and Corley behind him.

7 Royer involved a consent to search a suspect's luggage at an airport. The suspect, who allegedly fit the so-called "drug

courier profile" was ap proached by two airport detectives. Upon

request, he provided his airline ticket and driver's license.

Without returning the ticket and license, the detectives asked the

suspect to accompany them to a small room approximately 40 feet

away. Royer complied. The detectives retrieved his luggage

without consent and brought it into the room. Royer subsequently

consented to a search of the suitcases, where drugs were found.

The Supreme Court held that although Royer had consented to the

search, his consent was tainted b ecause the law enforcement

officers ' actions exceeded the permissible bounds of an

investigative stop. We conclude that a different result is in

order here, because we find that, at most, the police officer's

actions were within the permissible bounds of a Terry -stop.

13 decline the officer's request or terminate the encounter. S ee

United States v. Mendenhall , 446 U.S. 544, 100 S.Ct. 1870 (1980).

The officers did not brandish their weapons or attempt to detain

Cooper in any way during the initial conversation on the bus. 6 If

there has been no detenti on, no constitutional rights have been

infringed. Florida v. Royer

, supra

. 7

Cooper contends that he did not feel he could terminate the

encounter or refuse the officer's requests. He argues that the

encounter with Corley lost its consensual nature and that he was

illegally seized for Fourth Amendment purposes the moment the

officer asked him for permission to search him. We disagree. We

conclude that the encounter between Corley and Cooper remai ned

consensual throughout, or at most, did not exceed the bounds of a

permissible T erry

- type investigative stop, and that the officers8 S ee Unite d States v. Glover , 957 F.2d 1004, 1010 (2d Cir.

1992). In that case, our colleagues of the Second Circuit

recognized that an officer had reasonable suspicion to justify a

Terry stop of a passenger who, inter alia , entered a bus terminal

thr ough a different gate from all the other passengers. As in

Glover

, we feel that Cooper's actions in this regard may have been

reasonably suspicious to the officers. As noted i nfra

, Corley

testified that he had never seen anyone entering through that gate

who did not turn out to be carrying drugs. While this behavior

taken alone would not be enough to justify an investigative stop,

all the factors observed by the officers, taken together with the

information glean ed during the consensual encounter, justified a

Terry stop.

9 Although Cooper contends that the bulge was not visible, the

district court implicitly accepted the officer's contention that

the bulge was visible in light of his comment there is "nothing

suspicious about being lumpy." In light of the size and shape of

the pack of drugs, it was not clearly erroneous for the district

14 had the right to conduct such an investigative stop based upon

their reasonable suspicion based on articulable facts that

indicated Cooper might be carrying drugs.

Upon being approached by Corley, Cooper voluntarily answered

the offic er's questions, produced his ticket, and consented to a

search of his gym bag. In fact, he was the one who offered to have

the bag searched. As a result of the consensual encounter with

Cooper, Corley learned that Cooper's ticket had been paid for in

cash several hours before departure, that Coope r was staying in

Pascagoula just one night and yet purchased only a one-way ticket,

and that Cooper alleg edly was not carrying any identification.

Corley testified that all these factors are indicative of a

narcotics trafficker. When combined with the fact that Corley had

seen Cooper enter the station through the boarding gate, 8 had

observed Cooper squirming in his seat, had seen the suspicious

bulge 9

, had understoo d Cooper's attempt to draw attention to hiscourt to have concluded that the bulge was visible. Moreover,

Cooper's contention that the bulge was not visible to Corley may

have been given less weight by the district judge, since Corley was

in an optimal position to testify as to what he could or could not

see. Cooper may have honestly believed the bulge was not visible

when in fact it was.

While the district court rejected the position t hat the

"suspicious bulge " was an articulable fact contributing to the

officer's reasonable suspicion that criminal activity was afoot, we disagree. A large bulge located in such an unusual place on a

suspect may be a factor war ranting reasonable suspicion. S ee

United States v. Lehmann , 798 F.2d 692 (4th Cir. 1986) (officer's

observation of rounded corners of a packag e showing through

suspect's pants in the crotch area, plus suspect's attempts to

conceal the bulge by pulling down his jacket in front, justified

seizure); cf. United States v. Wilson

, 953 F .2d 116 (4th Cir.

1991) (a coat pocket is a usual location for a bulky object and did

not provide the officers reasonable suspicion under Terry .)

15 gym bag as a diversionary tactic, and had noted Cooper's

nervousness, we conclude that while none of the factors noted by

the police officers constituted probable cause for an arrest or a

warrantless full-blown search of the defendant's person, the

officers did have reasonable suspicion based upon articulable facts

to justify a Terry stop.

Thus, the consensual encounter arguably was transformed into

a limited Terry detention. E ven if Cooper felt detai ned in some

way, such detention was justified under Terry in light of the

reasonable suspicion the officers had. Thus, Cooper's consent was

not tainted by an illegal seizure.

We conclude that the district court correctly held that Cooper

consen ted to the pat-down search, although we disagree with the

Court's concl usion that mere nonresistance equates with consent.

It is undisputed that Cooper voluntarily offered his gym bag to be

searched. We find from examining the entire record that Cooper16

consented to the pat-down, just as he had consented to the search

of the gym bag. Officer Corley testified that he asked Cooper if

h e would mind a pat-down, to which Cooper replied "no" and stood

up. Officer Ellis corroborates that Cooper stood up, thereby

discrediting Cooper's claim that he was yanked up. As noted above,

in denying the motion to suppress, the district court clearly

rejected any claim of coercive police behavior. Moreover, the

record indica tes that the entire encounter lasted just a few

minutes, thereby negating any possibility that the police may have

w orn down the defendant's resolve through persistence. Thus, we

agree with the district court's ultimate determination that Cooper

consented to the pat-down search.

An analysis of the six Ruigomez factors, supra

, supports this

conclusion. The first factor, i.e. , the defendant's custodial

status, is discussed above. The defendant was arguably not in any

sort of custodial status. At most, he was the subject of a

permissible Terry stop at the time he gave consent to the search.

The second Ruigomez factor, the presence of coercive police

procedures, was clearly rejected by the district court, as

discussed above.

The third factor is the extent and level of defe ndant's

cooperation with police. As discussed above, the defendant had

answered all of Corley's questions, produced his ticket when

requested, and even volunteered to a search of his gy m bag. The

record also reflects that he stood up voluntarily prior to the patdown. His clear cooperation militates in favor of a finding of17

consent. With regard to the fourth factor, the defendant's

awareness of his right to refuse consent, the Government cites

Schneckloth v. Bustamonte

, supra , in support of its position that

there is no requirement that the government establish knowledge of

the defendant's right to refuse consent. While the government

makes a valid point that there is no absolute requirement that the

government establish that the def endant knew he could refuse

consent, the defendant's awareness of this right is nonetheless a

factor under the six-part test . However, we do not find this

factor dispositive.

The fifth factor is the intelligence and education of the

defendant. The defendant in this case had completed the tenth

grade, although he subsequently dropped out of high school. We do

not find him lacking the requisite educatio n or intelligence to

give valid consent to the search. With regard to the sixth factor,

defendant's belief that no incriminating evidence will be found, we

note that Cooper probably di d not think Corley would be able to

locate the drugs by the pat-down, much less identify the package as

containing crack cocaine. This factor militates in favor of our

finding that Cooper consented to the search. Accordingly, under

the six Ruigomez factors, we conclude that Cooper's consent to the

search was voluntary.

Once the officer felt the bulge, he was able to identify it as

crack cocaine because he could feel the wafers and was very

familiar with their size and shape. As an officer with many years

of experience and well-acquainted with narcotics, Corley had18

probable cause to arrest Cooper at that point for possession of

crack cocaine. Cooper was not seized for Fourth Amendment purposes

until this point, when he was arrested and taken off the bus. The

crack was subsequently retrieved from Cooper's underpants. A fullbody search pursuant to a lawful arrest is permissible even without

a warrant.

Conclusion

For the foregoing reasons, we conclude that the motion to

suppress evidence was properly denied. We AFFIRM.