IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 92-8230

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

WILLIAM ROBERT RICH,

Defendant-Appellee.

_________________________________ _________________________________

Appeal from the United States District Court for the

Western District of Texas

___________________ _______________________________________________ ( May 21, 1993 )

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The question in this case is whether an individual's

affirmative response to a police officer's request to "have a look

in" the individual's automobile is the equivalent of a general

consent to search the a utomobile and its contents, including the

individual's luggage. With some reluctance, but drawing from

precedent, we hold that the search does not violate the Fourth

Amendment. We thus reverse the district court's suppression of the

seized contraband.

I

We write today because the light bulb for the license plate on

William Robert Rich's pickup truck burned out. Thus, at 11:35 p.m.-2-

on the night of January 16, 1991, Texas Department of Public Safety

Trooper August Crais stopped Rich on Interstate 35 in Williamson

County to issue him a warning citation for the burned-out bulb.

In response to the trooper's request for his driver's license,

Rich volunteered that he was travelling to Mesquite to purchase

some automobiles. Trooper Crais asked Rich how long he would be

staying in Mesquite, and Rich replied that he would be there "just

for the day." Crais told Rich of the reason for the stop, and

asked Rich for proof of insurance on the pickup. While Rich

returned to the truck to get the insurance papers, Crais radioed

Rich's driver's license number i n to the police dispatcher, and

requested a license check, a criminal history check, and a check

for outstanding warrants. He returned to the truck where Rich was

fumbling through an envelope, still searching for his insurance

card.

Trooper Crais then walked up to the driver's side of the

pickup truck. He shined his flashlight into the open driver's side

window. He noticed a travel bag on the passenger side floorboard,

s ome clothes hanging up on the passenger side, a hat on the

passenger seat, and two suitcases that were behind the seat in the

extended cab portion of the pickup. He also detected the odor of

fabric softener, which he knew was often used by narcotics

smugglers to mask the scent of marijuana. Crais returned to where

Rich was standing and again asked him how long he planned on-3-

staying in Mesquite; this time, Rich replied that he would be there

"a couple of days." When Rich handed Crais the insurance papers,

Crais saw that Rich's hands were trembling so much that the papers

rattled.

After taking the insurance papers, Trooper Crais returned to

his patrol car to obtain the results of the license and warrant

checks. The dispatcher informed him that the police computer was

malfunctioning and that no checks could be run at that time. Crais

returned to Rich, who asked if there was a problem. Crais told him

that the computer was down, and that he had been unable to conduct

a license check. After asking Rich to stand by the patrol car,

Crais again approached th e pickup truck and attempted to look

throug h its back window, which was tinted. Crais was trying to

determine what was underneath the two suitcases in the extended cab

portion of the truck, but was unable to see through the tinting on

the window. He again detected the odor of fabric softener

emanating from the truck.

Trooper Crais then walked back to Rich and asked him whether

he had any narcotics or weapons in the vehicle. Rich replied that

he did not. Crais then asked Rich, "Can I have a look in your

truck?" Rich looked at the ground while fumbling through his

envelope. He did not respond. Crais repeated his question. Again

Rich did not respond. For the third time, Crais asked Rich if he

could look in the pickup, and then said "I either need a yes or a-4-

no." Rich said yes, and Crais instructed him to go stand back near

the patrol car.

Trooper Crais opened the driver's s ide door, unlocked the

passenger side door with the electric lock mechanism, walked around

to the pa ssenger side door and opened it. He immediately pulled

out one of the suitcases resting behind the passenger seat and

opened it. The suitcase contained marijuana packed in fabric

softener tissues. Crais returned the suitcase to the truck and

walked back to Rich, who was standing near the patrol car; Rich

said, "You got me, didn't you?" Crais replied, "Yes." He then read

Rich his Miranda warnings and arrested him. Ninety-two pounds of

marijuana were eventually taken from the truck. Crais's report

noted the time of arrest as 11:40 p.m., so apparently no more than

five minutes elapsed from the time of the initial stop until the

arrest.

After indictment, Rich moved to suppress. He asserted several

constitutiona l claims, including the violation of his Fourth

Amendment right to be free from unreasonable searches and seizures.

At the hearing on the motion to suppress, the district court

excluded evid ence of Rich's criminal history as irrelevant, and

granted the motion on the grounds that the search of the suitcase

exceeded the scope of the consent given by Ri ch. The government

appeals, arguing that the district court erred in concluding that

the scope of Rich's consent to search the truck did not include an

unlocked suitcase that was in plain view inside the vehicle. The1 The government also urges us to reverse the district

court's exclusion of evidence of Rich's prior criminal history

from the suppression hearing. We decline to do so, because the

standard for measuring the scope of a suspect's consent is

objective reasonableness; the suspect's particular knowledge

about the criminal justice system based upon his prior

experiences is irrelevant to such a determination. Such

knowledge could be important, however, when determining whether a

suspect's consent was voluntary. We have no doubt that the

district court will address this issue when it considers the

voluntariness of Rich's consent on remand.

-5- government also argues that the court further erred in refusing to

admit the relevant evidence of Rich's criminal history. We now

reverse the district court's decision to suppress the evidence.

II

Two dis tinct inquiries must be undertaken in analyzing an

individual's consent to a searc h: whether his consent was

voluntarily given, and whether the search was within the scope of

his consent. U nited States v. Coburn

, 876 F.2d 372, 374 (5th Cir.

1989). Because the district court determined that the scope of the

consent was exceeded, he did not rule on the voluntariness of the

defendant's consent. Thus, our review is limited to the scope of

the defendant's consent. 1

The Supreme Court has instructed us on the standard for

determining the scope of consent. "The standard for measuring the

scope of a suspect's consent under the Fourth Amendment is that of

`objective' reasonableness...." Florida v. Jimeno

, U.S.

,

, 111 S.Ct. 1801, 1803-04 (1991). The key inquiry focuses on

what the "typical reasonable person [would] have understood by the-6-

exchange between the officer and the suspect." Jimeno , 111 S.Ct.

at 1804 (citing Illinois v. Rodriguez

, 497 U.S. 177

, 183-84, 110

S.Ct. 2793, 2798-2802 (1990)). Objective reasonableness is a

question of law that is reviewed de novo

. U nited States v. Ibarra

,

965 F.2d 1354, 1357 (5th Cir. 1992) ( en banc ) (7-7 decision);

United States v. Harrison , 918 F.2d 469, 473 (5th Cir. 1990).

T h e factual circumstances surrounding the consent may be

important in determining the nature of the consent and how a

reasonable officer would have understood the consent. I barra

, 965

F.2d at 1357. The trial court's factual findings must be accepted

unless they are "clearly erroneou s or influenced by an incorrect

view of the law." United States v. Muniz-Melchor , 894 F.2d 1430,

1433-34 (5th Cir.), cert. denied

, 495 U.S. 923, 110 S.Ct. 1957

(1990); United States v. Lanford

, 838 F.2d 1351, 1354 (5th Cir.

1988).

III

The government does not dispute any of the distric t court's

factual findings, but instead contests the court's conclusion as to

how a reasonable person would understand the trooper's request to

"look in" Rich's pickup. The government relies principally upon

Florida v. Jimeno

. In that case, the police officer overheard the

defendant, Jimeno, arranging what seemed to be a drug transaction

over a public telephone. The officer followed the defendant's car,

and stopped him after he committed a traffic violation. The

officer then told the defendant that he had reason to suspect that-7-

nar cotics were in the car, and requested Jimeno's permission to

search the car. Jimeno consented to the search, and the officer

found a kilogram of cocaine in a closed paper bag that was located

on the passenger side floorboard.

Jimeno argued that the scope of his consent to search the car

did not extend to the search of a closed paper bag found within the

car. The Supreme Court disagreed, holding that "it was objectively

reasonable for the police to conclude that the general consent to

search respondent's car includ e d consent to search containers

within that car which might bear drugs." J imeno

, U.S. at

,

111 S.Ct. at 1804. The government argues that in the instant case,

it was similarly reasonable for Trooper Crais to conclude that an

affirmative response to his request to "look in" Rich's pickup

included cons ent to "look in" closed containers found inside the

truck.

Rich first argues that Trooper Crais's request to "have a look

in" the truck was--under the objectively reasonable standard--only

a request to "s ee inside" the vehicle. Rich argues that this

interpretation is strengthened by the fact that Crais had

previously attempted to "see inside" but was foiled by the truck's

tinted wi ndow. Somewhat similarly, the district court based its

decision to suppress the evidence in part on the failure of the

officer to use the more precise term "search" in his request.

We decline the defendant's invitation to establish a list of

specific ter ms from which an officer must select the most2 See

, e.g.

, United States v. Espinosa , 782 F.2d 888, 892

(10th Cir. 1986) (removal of back seat and rear quarter panel of

vehicle after permission was given to "look through" vehicle held

to be within the scope of consent); United States v. Harris , 928

F.2d 1113, 1117 (11th Cir. 1991) (search of unlocked zippered

luggage found in trunk of vehicle after permission was given to

"look" in vehicle to make sure there weren't any illegal drugs,

weapons, or other contraband held to be within the scope of

consent).

-8- appropriate for each individual situation and/or defendant. To so

hamper law enforcement officials in their everyday duties would be

a n unjustifiable extension of the Fourth Amendment's requirement

that searches be "reasonable." Several other circuits have held

that a request to "look in" or "look thro ugh" a vehicle is the

equivalent of a request to "search" the vehicle. 2 We take this

opportunity to establish a similar rule for our own circuit: it is

not necessary for an officer specifically to use the term "search"

when he requests consent from an individual to search a vehicle.

We hold that any words, when viewed in context, that objectively

communica te to a reasonable individual that the officer is

requesting permission to examine the vehicle and its contents

constitute a valid search request for Fou rth Amendment purposes.

Thus, in the light of the factual circumstances in this case, we

hold that Trooper Crais's request to "have a look in" Rich's truck

effectively communicated to Rich that Crais was asking for his

consent to search the vehicle. Rich had observed Crais shining

his flashlight not only into the tinted window but into the open

driver's side window of the truck and studying the truck's interior-9-

for at least thirty seconds; thus Crais had already "seen inside"

the truck and an objectively reasonable person would assume at this

point that Crais was requesting permission to look further.

Rich further argues that the facts in the instant case are

inapposite to those presented in Jimeno

, because there the officer

expressly informed the defendant that he wanted to search the car

for drugs. J imeno reaffirmed the no tion that "[t]he scope of a

search is generally defined by its expressed object." Jimeno

,

U.S. at , 111 S.Ct. at 1804 (citing United States v. Ross , 456

U.S. 798, 102 S.Ct. 2157 (1982)). Here, Rich asserts, the general

request to search his truck was unaccompanied by an express

declaration of the item or items that were being sought; thus, it

was not objectively reasonable for the officer to assume that Rich

had consented to the search of his luggage. In other words, Rich

argues that because he did not know that the officer was searching

for drugs, his general consent to search the vehicle could not be

interpreted as extending to any "containers within that car which

mi ght bear drugs." J imeno

, U.S. at , 111 S.Ct. at 1804.

Indeed, the district court judge decided to suppress, in part,

because he concluded that Trooper Crais did not tell Rich that he

wanted to search the vehicle for illegal drugs.

We do not agree with the district court. To the extent that

this determination involves a factual finding on the part of the

district court, we find that it is clearly erroneous. When the

conversation between Crais and Rich is considered in toto

, it is-10-

indisputable that Rich knew that the object of Crais's search was

illegal weapons or narcotics. As the district court found, after

the defendant handed his insurance papers to the officer, Trooper

Crais asked him if he had any narcotics or weapons in the vehicle;

the defendant answered "no." The officer then asked, for the first

of three times, if he could "have a look in" the defendant's truck;

the defendant did not respond to this inquiry. In the light of the

fact that the entire scenario was p layed out in a matter of

minutes--Trooper Crais's report stated that he pulled Rich over at

11:35 p.m., and that Rich was placed under arrest at 11:40 p.m.--it

is unreasonable to assume a period of silence ensued that was long

enough to disassociate the two sentences from each other. The

district court's factual findings reconstruct the conversation as

follows:

TROOPER CRAIS: Do you have any narcotics or weapons in

your truck?

DEFENDANT RICH: No.

TROOPER CRAIS: Can I have a look in your truck?

We think that T rooper Crais's request to search the defendant's

truck--certainly when taken in this context--was a request to

search the truck for illegal narcotics or weapons. Obviously the

officer's concern was focused on the possibility of the presence of

such contraband; his search request was similarly focused. Again,

we are unwilling to dictate to law enforcement officials the timing

pattern of their conversations with suspects; if, as a result of

the verbal exchange, a n objectively reasonable individual would-11-

understand the object of the officer's search, then the object of

the search has been sufficiently delinea ted for purposes of the

Fourth Amendment. We are convinced that such delineation took

place in this case.

The defendant additionally argues that Jimeno r ests on the

premise that "[a] suspect may of course delimit as he chooses the

scope of the search to which he consents." Jimeno

, U.S. at

, 1 11 S.Ct. at 1804. He argues that he cannot claim the benefit

of this Jimeno rationale because he was unable to observe the

search as it was being conducted; thus, he did not have the

opportunity to avail himself of the right to object to or limit the

search of his luggage. He says that the search took place on the

passenger side of the vehicle on the sloping shoulder of the

interstate, and that he was standing (at the instruction of Trooper

Crais) on the dri ver's side of the patrol car, which was parked

several feet behind the truck. Even if he had been able to see

what Trooper Crais was doing, he argues, the search took place so

rapidly that he would not have had time to object to it.

The district court made no findings that support Rich's claim

that his view was too limited or that things happened too fast for

him to withdraw or limit his consent. Even if Rich was unable to

see what was going on, however, we are unwilling to read Jimeno to

hold, as Rich suggests, that enforcement officials must conduct all

searc hes in plain view of the suspect, and in a manner slowly

enough that he may withdraw or delimit his consent at any time3 The situation where a suspect clearly withdraws or delimits

his general consent to a search before an officer has begun the

search, or a specific portion of the search, is not before us.

We express no opinion on such a situation. In the instant case,

Rich never attempted to withdraw or delimit his consent at any

point prior to or during the search.

-12- during the search. When the court stated that "[a] suspect may of

course delimit as he chooses the scope of the search to which he

consents," it meant that Rich, knowing the contents of the vehicle

and its various containers at the time he gave his consent, had the

responsib ility to limit the scope of the consent if he deemed it

necessary to do so. Rich knew what containers were in the truck

when he gave his consent to search; he had the ability at that time

to impose any restrictions he saw fit on the scope of that consent.

The fact that the search was not conducted in a manner that made it

conducive or even possible for Rich to later withdraw or limit his

consent does not automatically ma ke that search violative of the

Fourth Amendment. Under the facts of this case, we find that the

scope of Rich's consent was not violated by this lack of

opportunity to limit or withdraw his consent. 3

In suppressing the evidence, the district court additionally

relied upon the officer's failure to request specifically to search

the suitcase. The Supreme Court in J imeno

, however, foreclosed the

possibility of such a failure ever rising to the level of a Fourth

Amendment violation. The Court stated:

Respondent argues, and the Florida trial c ourt agreed

with him, that if the police wish to search closed

containers within a car the y must separately request-13-

permission to search each container. But we see no basis

f or adding this sort of superstructure to the Fourth

Amendment's basic test of objective reasonableness.

(Citation omitted.)

Jimeno

, U.S. at , 111 S.Ct. at 1804.

Thus, we find that the Supreme Court's decision in Jimeno

dictates both the controlling law and its application to the facts

in this case. There, the Court held that "if [a suspect's] consent

would reasonably be understood to extend to a particular container,

the Fourth Amendment provides no grounds for requiring a more

explicit authorization." J imeno

, U.S. at , 111 S.Ct. at

1804. We think that under the facts of this case, it was

objectively reasona ble for Trooper Crais to conclude that Rich's

consent to search the vehicle included his consent to search

containers found within the vehicle that could hold il legal

narcotics or weapons, the expressed object of Trooper Crais's

search. The suitcase that Trooper Crais searched was such a

container. Thus, the district court erred in holding that the

scope of Rich's consent did not extend to his luggage.

IV

We th erefore reverse the district court's decision granting

the defendant's motion to suppress the evidence, because it was

based on the erroneous determination that Rich's consent to search

his vehicle did not include consent to search his luggage, which

was inside the vehicle. B ecause the district court did not

determine whether Rich 's consent was voluntarily given, we must-14-

remand this case to the district court for this primarily factual

determination, and for such oth e r proceedings that may

appropriately follow.

Accordingly, the judgment of the district court is REVERSED,

and the case is REMANDED for further proceedings not inconsistent

with this opinion.

REVERSED and REMANDED.