United States v. Undre McCurdy ( 2011 )

Case: 11-30165 Document: 00511633351 Page: 1 Date Filed: 10/14/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 14, 2011
No. 11-30165
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
UNDRE DEVON MCCURDY,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:10-CR-131-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Undre Devon McCurdy was convicted following a
conditional guilty plea of being a felon in possession of a firearm and was
sentenced to 70 months of imprisonment. McCurdy now appeals the district
court’s denial of his motion to suppress evidence and statements obtained during
an encounter with law enforcement officers at a bus station in Shreveport,
Louisiana.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-30165 Document: 00511633351 Page: 2 Date Filed: 10/14/2011
No. 11-30165
In reviewing the denial of a motion to suppress, we employ a two-tiered
standard of review, examining the factual findings of the district court for clear
error and its ultimate conclusion as to the constitutionality of the law
enforcement action de novo. United States v. Orozco, 191 F.3d 578, 581 (5th Cir.
1999). The evidence is viewed in the light most favorable to the prevailing party.
Id.
“[P]olice can initiate contact with a person without having an objective
level of suspicion, during which time the police may ask questions of the person,
ask for identification, and request permission to search baggage that the
individual may have in his possession.” United States v. Williams, 365 F.3d 399,
404 (5th Cir. 2004). “So long as a reasonable person would feel free to disregard
the police and go about his business, . . . the encounter is consensual and no
reasonable suspicion is required.” Florida v. Bostick, 501 U.S. 429, 434 (1991).
(internal quotation marks and citation omitted). Police may not, however,
“induce cooperation by coercive means.” United States v. Jackson, 390 F.3d 393,
397 (5th Cir. 2004), vacated on other grounds, 544 U.S. 917 (2005); see also
Bostick, 501 U.S. at 435 (stating that such encounters are consensual “as long
as the police do not convey a message that compliance with their requests is
required”).
McCurdy claims that the district court erred in finding that his encounter
with the officers was consensual. He asserts that, in light of heightened
transportation security concerns of recent years, law enforcement officers
conducted their operations that day in such a way that no reasonable person
would have felt free to disregard the officers and terminate the encounter. He
insists that, as a result (1) he was unlawfully seized, (2) all seized evidence
should be suppressed, and (3) any statements he gave should be suppressed as
“fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487-
88 (1963).
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Case: 11-30165 Document: 00511633351 Page: 3 Date Filed: 10/14/2011
No. 11-30165
To the extent McCurdy is maintaining that he was seized when an officer
boarded the bus and spoke to the passengers, nothing the officer did or said
would suggest to a reasonable person that he was not free to leave the bus or
otherwise terminate the encounter. See Jackson, 390 F.3d at 395-97; United
States v. Drayton, 536 U.S. 194, 203-05 (2002). Likewise, McCurdy’s encounter
with the officers after he exited the bus was consensual, and the officers did
nothing that was coercive. See Williams, 365 F.3d at 404-05; Jackson, 390 F.3d
at 398-99. Viewing the facts in the light most favorable to the government as the
prevailing party, we conclude that a reasonable person would have felt free to
terminate the encounter with the officer. See Bostick, 501 U.S. at 434.
McCurdy also contends that any abandonment of the backpack in which
a firearm was found resulted from the unlawful actions of the officers, so that
any statements he gave should be excluded as the fruit of the poisonous tree.
Given our conclusion that there was nothing unlawful or coercive about the
actions of the officers, these contentions are unavailing.
AFFIRMED.
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