*1 open possibility estop- government specifically Court has left denies yet ping government, uphold impropriety, argues it has petitioners’ fail government). estops ure to raise decision which the conflict claim before the precludes
agency hearing this court from equitable estoppel against To assert now. The proscribes Federal Aviation Act government, party seeking judicial objections relief review of an order where government must show the exhibited affirma presented were first to the “Board or Penny Giuffrida, Secretary tive v. Transportation” misconduct. unless “reason (10th Cir.1990). 1543, F.2d grounds” Affirmative able appeal excuse the failure to 1486(e). misconduct means an affirmative act of mis agency. § app. 49 U.S.C. representation or of a application concealment material of the exhaustion doctrine is a Co., Ruby fact. F.2d matter court’s discretion. Park Coun 697, (9th Cir.1978) (citations omitted), Council, 703-04 ty Resource Inc. v. United denied, (10th cert. 61 Dep’t Agric., 817 F.2d Cir. 1987) (citation omitted). negligence, delay, L.Ed.2d 284 Mere inaction, agency or failure to guide follow if we Even were inclined to exercise our lines does not constitute affirmative miscon discretion, the circumstances this case mi- O’Neill, duct. Fano against Meaningful litate it. review is not (5th Cir.1987). possible because have no we factual record Moreover, us. before we presume cannot misrepresentation We see no or conceal- agency provided petition- not have funding ment in this case. In its initial adequate remedy ers with an had the issue letter, funding the FAA indicated was condi- Accordingly, been raised it. before we ultimately upon tioned factors left unsatis- not to choose deal with this issue. petitioners fied. We therefore conclude proof. failed to meet their burden AFFIRMED.
IY. Griggs,
In late Leonard FAA’s Assis-
tant for Airports, Administrator and Thomas
Richards, Administrator, FAA informed Mayor Wellington
Denver in- Webb of their heading terest the Denver Aviation De- America, UNITED STATES of partment. Griggs November Mr. Plaintiff-Appellant, involving recused from himself all matters allege DIA. Petitioners now Mr. Griggs’s and Mr. Richards’s actions created conflicts Kaye LITTLE, Bonnie Defendant- appearance interest of impropriety Appellee. integral because of their involvement in the Front Range projects and DIA and their No. 92-2155. ability airport to influence which re- Appeals, United States Court of ceive cargo business. Petitioners insinu- Tenth Circuit.
ate the FAA made its decision to withdraw from Range expansion the Front after the March presidential knowledge election Mr.
Griggs seeking and Mr. Richards would be
employment. though Petitioners claim even conflict, recognized
the FAA agency
failed to resolve it. result al- As a of this
leged impropriety, petitioners urge us to nul-
lify the reversal order and reinstate the
ROD. *2 (Don Williams, Atty.
David N. Asst. U.S. J. Gomez, Svet, Atty., Larry U.S. Svet), Atty. him (succeeding Don with J. briefs), NM, Albuquerque, appellant. Chesnoff, Chesnoff, Z. & David Goodman Homan, (Kimberly Vegas, Las NV Sheketoff Homan, Boston, MA, him on & briefs), appellee. MeKAY, SEYMOUR, Judge, joined
Before Chief was then Detective ANDERSON, TACHA, LOGAN, MOORE, Ivan Albuquerque Smith Police De- EBEL, KELLY, BALDOCK, BRORBY, partment, under assignment *3 Judges. Circuit Force, DEA Task apparently and who also detected chemical odor coming from the ANDERSON, H. STEPHEN Circuit bag. Agent Small testified he not iden- could Judge. odor, tify nor the could he associate with a government from of appeals The an order (such particular drug drug-related activity granting the district defendant/appellee odor-masking agent). as an He asked the Kaye suppress Bonnie to evi- Little’s motion brought car attendant who the suitcase on pursuant dence a search her seized to of train, board the and was told that it was the luggage Albuquerque, on board a occupant of roomette 7. He checked the argument New After pan- Mexico. oral to a train manifest and determined that the occu- el, decision, prior but to a we ordered this pant of roomette 7 was Ms. Little. Upon reheard banc. review of the Accompanied Smith, by Agent Detective arguments parties, briefs and of the we hold Small turned on tape recorder to record his wrong that employed the district court the approached conversation and roomette 7. legal granted when it standard the motion Detective Smith stood back in the vestibule suppress, prior in that it our held that cases roomette, sight area of out of the while compelled police-citizen the conclusion that Agent went Small room. The door to roomette, spe- at a train without a open roomette was and Ms. Little was by cific advisement officer sitting Agent inside. Small stood outside the questions, defendant need answer consti- room, hallway,” “in the id. at showed Ms. prior tuted an unlawful Our seizure. cases DEA badge, Little his told her he was with per dictate no such rule. se We therefore Department, the Police if he asked could this REVERSE REMAND case for fur- speak consented, Agent with her. She proceedings utilizing proper ther stan- proceeded Small ques- to ask her a of series dard.
tions.1 BACKGROUND traveling, He her asked where she was undisputed. Certain basic facts are On responded which she she was from 27,1992, January Drug Enforcement Admin- Agent California to St. Louis. Small asked (“DEA”) Agent istration Kevin re- Small ticket, him, to see her which she handed tip ceived passengers two on bought and which evidenced she had Southwest Chief Amtrak train due to arrive one-way day ticket with cash the before. in Albuquerque p.m. might carry- at 1:25 be ticket, returning After he for a asked ing drugs. Neither of those individuals was picture identification, and she handed the Ms. Little. agent belonging a Missouri driver’s license Little, of the course and eonsensu- Bonnie with a St. Louis address on it. ally searching luggage Agent those promptly individu- Small returned that to her als, Agent large Small noticed a blue suitcase He Ms. well. then told Little that he was public baggage DEA, area train. The with the checked the train new, unlabelled, appeared suitcase people traveling manifests alone from and, agent it, when the knelt down next to he California to on one-way the east tickets coming detected “a chemical bought odor from the with cash because sometimes bag.” App., Appellant’s Mo.Hr’g drugs. Tr. 23. carried He then asked her if she was tape appeal. supplemented The actual Small's encounter We have on the record tape. with Ms. Little was Despite admitted into evidence in the our own motion with some court, although transcript suggestions contrary district argument made at oral case, tape by government tape clearly was not admitted itself indicates Ms. apparent ap- district court because of some inaccu- Little consented first when transcription. transcript, proached racies in its speak her and if he with asked could tape, not the included the record on her. kilograms drugs luggage, to which was found contain fifteen her
carrying responded she was not. cocaine. she n possession Ms. Little was indicted had testified that he noticed agent kilograms more than intent to distribute five to Ms. Little. He asked nylon bag next blue cocaine, violation of 21 U.S.C. only bag bag was the she had nylon if her 841(a)(1) 841(b)(1)(A). §§ entered a She him it was. When and she told sup- plea guilty filed a motion “voluntarily Little she asked Ms. press luggage, from the cocaine seized bag, apparently consent” to search ground luggage seized been hesitated, agent responded: which the *4 a and that affidavit in without warrant the completely to. It’s volun- have You don’t the support of search warrant did not state part. don’t to let tary your You on probable cause. I don’t have a search warrant. me do it. motion, hearing conducting After on the up you. under arrest. It’s to You’re not it, reasoning granted district court as 2, tape recording. Ex. Ms. Government’s follows: that prefer he not Little said she in person such as the defendant [A] bag. search the higher expectation ha[s] again Agent then if the asked Small they engage a small in when room trains. bag only luggage, and said it was her she thereupon if agent asked her she was.2 The here in the [United And Ward case him accompany downstairs and look (10th Ward, F.2d Cir. They agreed she to something, which do. 1992) questioning the Court finds that his ] public baggage Agent area and
went to the space away Little in from Ms. this confined large if the Ms. Little blue Small asked was in effect situation where responded hers. She that suitcase was permitted not to she was decline answer agent asked if she would consent was. The ing questions. searched, bag and Ms. Little having to search, if to the asked had consent she in important Moreover this case as said, “No, you Agent do not.” which Small pointed [out] in the Ward case is that no if agent packed asked her she had Agent When the time did that Small advise her she bag knew in herself she what was questioning. could terminate the it, that not responded she did know what she throughout Agent I note And that Small it, packed bag, in she had was very pointed in his was given bag but had “friend” been defendant, asking incrimina- and he Angeles and told take it to Los someone questions. ting Louis. else St. The Court states that Ward inquiry Fourth Amendment it is relevant agent The then told Ms. Little that he was private an in a individual subject going bag dog to a take higher expectation train roomette has a thought it sniff contained contra- because traveling in privacy than an individual dog trained narcotics band. alerted When public passenger train. suitcase, Agent Small arrested Ms. dog also also as con- Little. alerted the blue And here the officer’s nylon place Little with her the train frontation of in a bag Ms. legitimate compartment.3 bags When the two were where she had a warrant, conclusion, searched, privacy supports and I pursuant a search each so luggage government piece 2. The asserts that Ms. Little's re- roomette her was her Agent questions sponses about wheth- Small's the room with The district court made her. bag bag "only” er the was her amounted to a lie findings on this matter. ownership Agent about her of the blue Small suitcase, knew and that Small dog that he testified never saw lying. argues questions that the were Ms. Little bag, alert to small but that another officer ambiguous, interpreted ques- and she them as bag. dog told him the had alerted to the nylon bag tions whether the small about case, implicating Amendment, in this the encounter seizure the Fourth conclude setting private, non-public rather consensual encounter. The occurred open public setting. Florida distinguished from L.Ed.2d App., Mo.Hr’g Tr. of 63-64. Appellant’s (1991), determining enunciated test for court went to conclude that whether an consensual or not: suspicion reasonable to con- lacked order to determine particu- [I]n whether a luggage nar- that Ms. Little’s contained clude seizure, lar encounter constitutes a a court cotics, justify as to a brief detention so must all consider subject circumstances sur- luggage dog it to a sniff. The rounding the encounter to determine the chemical was an court held odor whether conduct detention, would have insufficient basis “the person to a communicated agent information reflected and known was not free to decline the inconsistent with innocent Small was requests or officers’ otherwise by anyone.” terminate a train Id. at 65. The travel on the encounter. appeals government the district court’s order arguing granting suppress, the motion to *5 at -, Id. 501 111 U.S. S.Ct. at 2389. See that the between Small and encounter 795, Laboy, also United v. States 979 F.2d Ms. Little was consensual and that (10th Cir.1992); Bloom, 798 United States v. suspicion had reasonable to detain her 1447, (10th Cir.1992). 975 F.2d 1451 subject dog luggage and to a sniff. (what objective test is would the con duct per have communicated to a reasonable DISCUSSION son) (based specific and fact on cir “all the reviewing granting When an order encounter”). surrounding cumstances suppress, accept a motion to “we the trial explicitly Bostick held particular that the findings clearly court’s factual unless errone location of an encounter is but one factor ous, light we view the evidence in the “totality of the circumstances” test: finding.” most favorable to the district court’s “[wjhere place the encounter takes one is 1510, Swepston, v. United States 987 F.2d factor, only but it is not the one.” Cir.1993) (10th (citing 1513 United States v. at -, Indeed, 501 111 U.S. S.Ct. at 2387. (10th 1533, Waupekenay, 973 F.2d 1535 Cir. rejected specifically Bostick the Florida Su 1992) Preciado, United States v. 966 preme application per Court’s of a rule se (10th Cir.1992)). 596, F.2d 597 review de We any occurring police-citizen encounter novo the “ultimate determination of Fourth bus, opposed inside a to outside the bus or Amendment reasonableness.” United States lobby, in the bus seiz terminal constituted a Cir.1993). Allen, (10th 1354, v. F.2d 986 1356 Rather, every ure.4 case turns on the total findings ‘“If the court’s factual district ity presented. of the circumstances When law, an interpretation based on erroneous totality there is such a the circumstances appropriate is remand unless the record is test, “only in rare instances will one such one factual resolution of the produce an factor inexorable conclusion ” possible.’ Zapata, issue is United States v. a seizure has occurred.” United v. States (10th 751, Cir.1993) (quoting 997 F.2d 757 Jordan, 1085, (D.C.Cir.1992); 958 F.2d 1086 Nicholson, 983, United States 983 F.2d 987 Bustamonte, see also 412 Schneckloth U.S. (10th Cir.1993)). 2041, 2047, 36 L.Ed.2d (1973) (reviewing consider first district involving We whether the cases voluntari consent, correctly concluding court held that the be encounter ness of that “none presence tween Small and Ms. Little was a of a them turned on or absence though Supreme explicitly adopted per the Florida Even Court disa- never rule has se rule, roomettes, express application per regarding vowed the of a inside se encounters attempting apply United that the Court concluded some lower courts deci- our rule, practice prac- Florida court in followed such sions have concluded our court has in routinely per consistently granted because mo- tice followed a se rule that such encounters Miller, suppress during tions to evidence found encoun- are seizures. See United States v. (D.N.M.1993). Similarly, though F.Supp. ters buses. inside even an criterion; pectation privacy individual controlling each reflected a
single
surrounding
public passenger
cir-
ear of the
all the
scrutiny of
careful
cumstances”).
confrontation of
officers’
[T]he
train....
legiti-
place
where he had
rejected any
explicitly
Just as Bostick
privacy supports
mate
location
based on the
categorical distinctions
occurred
conclusion that the encounter
(inside
on
encounter
a bus
police-citizen
of a
private,
setting....
nonpublic
bus,
bus,
bus termi
or
outside
too,
reject
argument
lobby), so,
we
nal
Ward,
In
between
home’
the encounter
seizure,
poses.
occupants
train
Agent
Little was a
While
of
roomettes
Ms.
specifically
part
may
degree
privacy,
in
of
properly expect
the district court
relied
some
expectations
our
in
that:
statement Ward
it is
than the reasonable
less
traveling
rightfully possess
in their
in
individuals
it is relevant that an individual
rooms.”),
higher
or their hotel
cert.
private
train roomette has a
ex- homes
denied
prior opinions
in 'well-trafficked’ area
[because was]
Ward and
both
located
5. Our
in
Bloom
nonpublic
private
train"). Second,
discussed the
nature of the
simply
assump-
of
roomette,
implicit assumption
train
on the
that a
tion, unsupported by any specific data or evi-
person
vulnerable to
would feel more
roomette,
dence,
person
private
that a
in
train
nonpublic place,
outside the
coercion in such
passengers,
other
will feel
in
view of
of
We
make two observations
view others.
now
person
than a
more vulnerable to coercion
First,
about that.
it is
no means obvious that
people.
view
It
be that
is in the
of other
public
private
always
train roomettes are
less
many people
more "coerced”
would
fact feel
parts
See
than other
of
train.
might
public setting,
embar-
where
Kim,
93-87,
WL
*5
No. Crim.
hearing
police requests
to decline
12,
(encounter
rassed
(E.D.Pa.
1993)
private
May
nonpublic
...
and view of others.
Amtrak roomette "not a
encounter
unambiguous
102 L.Ed.2d
Small’s
488 U.S.
explicit
concerning
advisement
the search of
luggage
totality
relevant to the
precise
We need not determine
level
surrounding
circumstances
the encounter.
any “higher”
privacy
in train
roomette, however,
expec
because
such
reject
argument
Ms.
We
Little’s
a limited relevance
tation
has
“because Ms. Little
was a woman
question
police-citizen
whether a
alone, she,
Ward,
as the
would
roomette is
encounter
such a
consensual.
easily
be more
intimidated than some other
‘higher expectation
pri
person’s
“While a
person.”
Appellee’s Answering
Am.
Br. at
vacy’ in
compartment
his or her train
20. While Ward we observed that
reviewing
have some relevance we were
“slight physique”
defendant’s
and the fact
compartment,
it has limited
“recently undergone
that he had
kidney
question
rea
relevance
whether a
transplant for which
taking
he was still
medi
believe that he or she
sonable
suggested
cation”
easily
he “was more
is unable to terminate the encounter.” Unit
Ward,
persons,”
intimidated
some other
Bloom,
975 F.2d
n. 6
ed States v.
1533, subsequent opinions
961 F.2d at
have
(10th Cir.1992);
Delgado,
INS
cf.
clearly
more
stated our
of the propriety
view
217 n.
1763 n.
considering
particular
personal
traits
(1984) (stating that
same
L.Ed.2d 247
“the
subjective
state of
mind of
defendant.
attending contacts
considerations
between
Bloom,
We
in Laboy
stated
and reiterated
apply
places”
and citizens
Zapata,
particular personal
factory, a
usual
to contacts “inside a
location
subjective
traits or
state of mind of the de
public”).
ly not accessible to the
objective
fendant are irrelevant to the
“rea
addition to the
roomette set
person”
sonable
test set out in
“oth
ting of
between
they may
er than to the extent that
Little,
empha
and Ms.
the district
also
been
the officer and
known
influenced his
specifically
sized
Small’s failure to
ad
Bloom,
9;
conduct.”
1455 n.
see
Ms.
right
vise
Little that she had the
757;
Zapata,
Laboy,
also
997 F.2d at
*7
questions.
is no
refuse
answer his
There
Thus,
F.2d at 799.6
unless there is evidence
requiring
se rule
such an
per
advisement.
particular
Small knew of
Delgado, 466
104
at
See
personal
traits
characteristics of Ms. Lit
1762;
Bustamonte, 412 U.S.
Schneckloth v.
tle,
they
conduct, they
and
influenced his
are
2041, 2049,
854
36 L.Ed.2d
question
irrelevant
to the
of whether
(1973);
Zapata,
v.
F.2d
States
997
encounter between
Lit
Small Ms.
(10th Cir.1993);
757 n. 4
United reject any
tle was consensual. And we
rule
(10th
Cir.1992);
Laboy,
v.
979
799
F.2d
classify groups
that would
of travelers ac
1454-55; Ward,
Bloom, 975
F.2d
F.2d at
961
race,
cording
gender,
religion,
national
1533.
origin,
comparable
or other
status.7
Moreover, Agent
specifically
did
tell
Finally,
turn
district
acquiesce
Little
not
to a
we
court’s
Ms.
that she need
“Agent
of
the fact that
luggage.
While we
reliance on
Small was
do
suggest
in
concerning
very pointed
that an
an-
advisement
defen
swering questions
dant,
asking incriminating ques
he was
same
an advise-
concerning
luggage,
Appellant’s App.,
Mo.Hr’g
ment
the search of
in
tions.”
Tr.
intelligence may
any particular
6. Characteristics
as whether
be-
such
be relevant in
adult,
ing questioned
case,
is a
or an
exam-
child
for
objectively apparent.
to the extent
are
ple,
objective
are
not,
and relevant.
however,
They should
form the basis for
general
categorizations
across-the-board
"surprising”
dissent finds this statement
Thus,
reject
groups
we
of travelers.
what
are
interpreted
and fears it
courts
district
women,
imply
rules which state or
that all
all
repudiation
opinion Zapata,
part
as a
of our
minorities,
young people
always
or all
more
LOGAN, Judge, Circuit with whom SEYMOUR, MeKAY, Judge, Chief join, Judge, dissenting:
Circuit
II
It also
clear that
seems
defendant in fact
I
compelled
agent’s
felt
ques-
to answer the
majority opinion
Insofar as the
holds that
tions.
Consider
this woman had in her
suspi-
Small did not have reasonable
bag in
kilograms
the roomette fifteen
of co-
activity
justify
detaining
cion
criminal
caine,
bag
and in another
outside on the
her luggage
defendant Little or
before their
luggage
kilograms
rack another fifteen
encounter,
am in agreement.
initial
I
cocaine.
knowledge
While
disclaimed
had boarded the train to check out two other
bag
the contents
public luggage
them,
passengers;
questioned
induced
persistent questioning by
rack under
the offi-
(and
baggage
them to let him
their
cer, she
knowledge
never denied
of the con-
passenger’s person),
one case the
but found
bag
tents of
roomette.
It is fanci-
nothing incriminating. Small focused on de-
suppose
ful to
that she did not know she was
fendant
because he saw newa
suitcase
carrying
bags.
both
contraband
one or
tag
passen-
no
name
the rack where
agent
This was
the context
which the
placed
roomettes,
gers
bags
their
outside the
speak
asked to
to defendant.
train attendant
identified it as defen-
Obviously
physical ap-
dant’s.
problems
tape
suitcase’s
have more
with the
Nevertheless,
pearance
provided
grounds
majority.2
and location
reviewing
does
tape
original
1. There is no evidence in the
record
sation from
“The
one
another:
micro-cassette,
masking agent
attempt
tape
used to
cover the
is a
and I had to transfer it
*9
luggage.
of the
found
larger tape
odor
cocaine
in defendant's
beginning
over to a
the
then—at
Mouse,
tape
Mickey
of the
I
like
sound
and that's
tape
2. The
into
introduced
evidence
close to
transferring
tape
somewhere
the
in the—
respect
indistinct with
to defendant's answer to
Appellant's App.
over....”
44.
speak
Small when he asked if he could
consented,
tape
may
that
her. Small testified
she
into
after
introduced
evidence
be the
listening
agree
original tape;
several times I
that
has on it
defendant's
it
the conversations of
response
passengers
can be understood to be "uh-huh.”
the
with the
encounters
other two
Nevertheless,
transcript
prepared
during
nothing incriminating.
the
him-
which Small found
self,
2-A,
stretch,
completely
offered as Plaintiff's
It
Exhibit
lists defen-
also has a
silent
with no
“huh-uh,”
Also,
noise,
background
dant's answer as
a "no.”
at the
the rest
or train
unlike
of the
suppression hearing
tape,
just
when cross-examined about
one
more than
minute
after Small
“very
sounding
tape,
passenger
his voice
on the
told
rushed”
the second
that he would have to
part
explained
result
that
was a
of the
confer with his fellow officer about whether to let
tape, stating
passenger proceed
just
that
had
transferred
conver-
that
before Small's
narrowly,
evidence,
appar-
on a train as well as a bus. Read
into
introduced
tape
per
rule
agent’s
merely held there is no
se
answered the
Bostick
ent
defendant
that
seizure in
response possible,
requiring
a court
find a
violation
the least
questions with
informed,
when encounters
When
Fourth Amendment
felt coerced.
one who
would
po
passengers on
bus and
she need not allow occur between
questions, that
after her
questions
drugs,
asking
without articu-
baggage for
lice officers
to examine her
agent
suspicion.
Court did not decide
consent. Because she
lable
both times she refused
no
under
facts of
lug-
her
that
occurred
search
seizure
knew the officer wanted
case,
stated
the Florida court
drugs,
obvious that she
that
that
gage
it seems
totality
apply
must
of the circumstances
accompanied the officer to
not have
would
determining
had
evaluation in
whether “the
luggage rack
she felt
the outside
listening
tape
conduct
have
to a rea
one
could
would
communicated
No
choice.
person
was not free
thought
that co-
sonable
that this defendant
believe
requests
him from to
the officers’
or otherwise
would deter
decline
operating with Small
Bostick,
or that
would
terminate the encounter.”
501 U.S.
searching
luggage
a search
at -,
at
coerced in
111 S.Ct.
2389.
drugs.
She felt
not uncover
fact.
courts, however, have
Bos-
The lower
read
I
the test is not whether
recognize that
broadly,
holding
on
facts
tick more
coerced;
test
in fact
felt
that no unconstitu
there before
Court
feel
person would
free
“whether a reasonable
may
This
be
tional seizure occurred.
be
requests
the officers’
or otherwise
decline
Court,
saying
cause the
addition
Bostick, 501
the encounter.”
terminate
case
be remanded to
should
evaluate
at -,
apparently
Ill therein, weighing coer- referenced toward majority potentially in- princi- I our the officer asked agree with the cion—that pal deciding criminating questions, partially like that he guidance for exit, only possible Bostick. There blocked the and that one before us comes from totality recognizable pouch of the officer had his hand in a Court announced gun applicable held no Fourth circumstances test to encounters contained —and (1968) ("[W]hen opening question defendant. items dis- L.Ed.2d 1247 a defendant testi- These But I not hold suppress turb me. success support fies in of motion to evidence government's appeal accuracy turns on the testimony grounds, on Fourth Amendment tape. may against not thereafter be admitted him guilt trial the issue of unless he makes no empirical assume the reason no studies objection.”). run risks Defendants some made is that realistic scenarios would have been York, testifying, reasonably see Harris v. New performed by police, (1971) (evidence way the decide *10 satisfied with the courts 91 S.Ct. issue, by persons impersonating police offi- may obtained in violation of Miranda be used cers, subject which would them to criminal lia- trial), impeach defendant at but if the case turns bility impersonating police It would for officers. suppressed they on have whether evidence is help lawyers put on if would their clients nothing by testifying to lose circumstances See v. United stand in these cases. States, Simmons interrogation. surrounding the officer’s 967, 976, 19 390
1509 occurred if the situa- But this universal criticism is some Amendment violation indication them no more intimidat- Supreme might tion was that the then before Court not reach the Indeed, majority like the ing than that. if same result the facts contained features here, appear to opinion courts treat some police questioners less favorable to the than nonthreaten- factors considered present were in Bostick. In Delaware v. wearing civilian ing the officers were Prouse, 59 —that visible, clothes, gun that no and that (1979), Supreme L.Ed.2d 660 Court held they question- a conversational tone used police officers violate the Fourth neutral, merely offsetting ing not but as they stops —as Amendment when make of auto weigh toward other facts which would coer- mobiles on random basis without articula- cion. suspicion. cry ble That is not a far from the or train test, bus case where the encounter is with balancing applying In Bostick’s how- passengers stopped ever, vehicle vio- reasons whether we view the encounter as policeman’s activity, unrelated to will lating depend limits often constitutional policemen acting think where the are with the on how close we the Bostick facts came co operation I line of carrier. unconstitutional behavior. believe, obviously contrary majority, to the appeared approve the conduct Bostick A the extreme limit of a constitution- near
ally permissible consensual encounter. Ward, In United v. 1526 (10th Cir.1992), writing panel, per- for the
IV ceived two differences from the situation in thought that I unanimously weighed substantially Bostick The commentators almost in favor opinion going finding have an unlawful seizure condemned Bostick rather Commentators, course, too not far.4 do consensual encounter. First was that Ward, law; Supreme make does. the officers one of whom was See, LaFave, e.g., Wayne right R. Search and that a citizen will exercise not to be Seizure 9.2(A) ("Even (Supp.1993) § 120 it is interrogated. rulings give police per Such generally police pedes- true that encounters with places— verse out incentive seek individuals in trians, including travelers become ensnared discourage such as buses—where external factors drug airports, courier detection activities exit.”) omitted); (footnotes Reed, J. Michael seizures, are not the confrontations which occur Comment, v. Florida Bostick: The Fourth part suspicionless police sweeps on as a buses War, Drug Takes a Back Amendment Seat ought to nonetheless they be deemed seizures because (1993) (“If, Eng.L.Rev. major 27 New as the dramatically different in terms of states, ity Bostick police activity its character of the involved and consent, right aware that has refuse impact upon the reasonable traveler. This differ- then the would have no individual need risk ence, essentially, prop- comes down to these two caught being trying simply bluff (i) ositions: dominance of the situation If, however, refuse he did feel consent. free sweep activity, manifested their undertaken consent, grant refuse he would because he with the of the common car- obvious connivance short, compelled so. felt to do if the environ rier care, have to which bus travelers entrusted their Bostick, it, coercive, ment in cases like is not highly coercive because it so unlike law how could it be an effective enforcement might pri- contact which occur between two words, work?”) citizens; (ii) why tool? In other it ever uniquely vate dominance has omitted); Farmer, Note, impact (footnote heavy upon precisely be- bus travelers Matthew I. Go not, matter, they practical Greyhound cause do as a and Leave the Fourth Amendment to range options available of avoidance which Loy.U.Chic.L.J. Us: Florida (1992) pedestrians airport might uti- travelers ("[T]he on Court's latest statement lize [I]t .... is troublesome that the Bostick ma- implicitly question consent-coercion credits the jority grasp unique- does not seem to either person’ with an inordinate amount ‘reasonable particular ness of on-bus confrontations or the knowledge.”); generally Fourth Amendment see passengers difficulties who do not which wish Note, Fry, Swap Mark W. Florida Bostick: face.”); submit to such an The Su- ping-Off Fourth Protec Point Amendment Cases, preme Leading 105 Harv.L.Rev. Court— tions?, (1992); 52 La.L.Rev. Constitutional (1991) ("The reasoning Court's ... does Law Addresses Court’s 1990- Conference recognize police, by approaching that the Term, (1991) (Prof. Crim.L.Rep. Yale individuals in where face ob- environments Kamisar). voluntarily vious—even if assumed—constraints mobility, purposefully reduce the likelihood *11 1510 of the
Small, police at the encounter is “determinative” inform not did contend, not I question. that he need But do based encounter seizure of the outset I an precedent believe this is questions. upon Supreme his Court as well answer majori sense, the Bostick important factor because that it is an important factor. common a “particularly fact ty opinion Supreme mentioned more than one occasion the On asking questions noting” that before worth recognized importance of loca- Court has notify passenger did the officer In Bos- tion in the seizure determination. Bostick, 501 at cooperate. U.S. need not tick, the Court stated that “the Fourth 2388; 2385, -, -, see also 111 S.Ct. at permits police ap- Amendment officers Mendenhall, 446 U.S. United States airport proach at random in lob- individuals L.Ed.2d 497 100 S.Ct. public places ask them bies and other (fact (1980) was told she could that defendant questions request consent to “especially signifi to consent was decline luggage_” at their U.S. cant”). Small, in the case now before added). -, (emphasis at 2384 S.Ct. outset, us, at the or not inform defendant did Later the Court noted that no seizure would time, need answer at police if the confronted Bos- occurred questions. tick he “boarded the bus or in the before terminal,” lobby the bus id. 501 at U.S. -, added), (emphasis at S.Ct. B likely places both where witnesses to be I in perceived difference Ward second present. Rodriguez, also Florida v. See substantially in of a weigh favor coercive encounter was the locus (1984) (noting specifically that and de- roomette, only officers and defen- public “remained in air- fendant area present, isolated from neutral witnesses. dant finding port,” no seizure under Fourth Bostick; emphasized This a factor Amendment) curiam). (per clear that the encounter the bus passengers would wit- where other occurred Similarly, Royer, in Florida v. majority opinion questioning. ness the (1983), 1319, 75 L.Ed.2d that the district instant believes found in an an encounter the location of treated violating air terminal was a seizure of the seizure the roomette as determinative Royer Fourth Amendment. The Court em- rejects It question that view. then brought Royer phasized agents that the to a goes suggest that whatever on to one-exit room which the Court described as has passenger room- large equipped “a small room —a closet— only “has a limited relevance to the ette it chairs”; it then stated with a desk and two police-citizen question of encoun- whether inqui- begun as a consensual “[w]hat consensual,” Maj. ter in such a roomette place ry in a had escalated into 1504-05, additionally suggests that op. at investigatory procedure police interroga- people might when con- feel more coerced 502-03, at tion room.” Id. 1327. by police public setting fronted view my view the train in the case roomette others. us, larger eight by before feet two feet,5 essentially contend, large to a nor I three similar do not do believe found, storage that the location of the closet with one exit. district court respect Maybe eight by actually A. three. It’s two Small testified as follows with size defendant’s roomette: And beds. There’s two chairs and two beds. Chesnoff) Sir, (By big Q. how Mr. the two lower chairs make out to bed room? night-time, upper pulled and the berth is down two, probably eight long by A. It’s feet three night, you beds. so have two wide. feet Appellant's App. at 49-50. He also testified Okay; Q. sleeping is this a car? enough on the train don't have “most rooms Yes, A. sir. pieces space large luggage.” Id. at 39. bed, Q. a chair—a bed and So there's eight chair in that’s two? a room *12 v. McCarty, Berkemer majority passenger’s holds that right in is not privacy a train roomette as S.Ct. home, great in her and that such fact reasoning This same apply police should overruling Kelly’s requires Judge opinion for analyze encounters when we whether a rea- Dimick, United States v. panel person sonable would feel free an to refuse (10th Cir.1993). course, F.2d Of requests or officer’s to otherwise terminate case, Dimick was a not a seizure of the encounter. I person, correctly and believe was I passenger decided. share the view in Ward My point my point is here renting a roomette a train does problems questioning the main privacy same home- setting confines, cramped roomette are the may owner. Homeowners exclude almost Royer, regarded like that as coercive in anyone property; from their train roomette eye the absence of neutral witnesses. The privacy pay renters for the majority apparently believes that if the passengers expect from other but isolation setting given is roomette the interview tickets, let in to the conductor check their label, “important” all such encounters will employees to announce the other necessarily per be found to be seizures —a se problem. stop next or to check a mechanical I agree rule. do us, .not with that As conclusion. relevant seizure issue before however, passenger importance One believe the train in a factor that diminishes the is roomette would feel less able to refuse to recording, tape the existence of a as here. officer, questions posed by police answer tape, But even when there is a it often seems especially might one like who looked he be just to malfunction when the court would like connected to the or to have been railroad said; may know what was not record by inquiries. the railroad asked to make accurately parties; the tone of voice of the Thus, privacy actually the lesser interest and, course, it cannot show the nonverbal supports finding atmosphere á more coercive behavior of the officer. These defects can be train roomette than when a cases, particular however, neutralized in if questioned at door her home. The passenger there is another or visitor who passenger’s expectation in the room- encounter, witnesses the who can be a neu- relevance, ette be of limited it is tral observer of the behavior. relevant. majority’s many As to the dictum that C people public setting, where there are observers, other neutral would feel more em- tape testimony in the instant ease responding barrassed more coerced into support contains additional evidence to police questioning priva- than when in the finding district court’s a coercive atmo cy roomette, I disagree, of a think and I sphere created the confrontation and Supreme holding Court does also. First, agent’s of defendant. Miranda warnings given need not be to mo- proximity Although Agent to defendant: ordinary stops, torists traffic at point Small testified one that he didn’t settings Court explicitly public held that “stepping tiny remember foot” defendant’s inherently less coercive. roomette, Appellant’s App. and that he typical public, stop [T]he traffic at least said, hallway, id. stood he also degree. Passersby, to some on foot or in very tiny. keep “These rooms are could She cars, other witness the interaction of offi- [the her seat and hand to me. When ticket] exposure cer and motorist. This out, probably she sticks her arm hand ability view both reduces the of an unscru- Id. at 49. hallway, very small room.” pulous policeman illegitimate to use means he Earlier had testified that he “stood on the self-incriminating to elicit statements and room.” Id. at 25. See part north that, diminishes the fear he motorist’s 502-03, Royer, subjected cooperate, does not 1326- will abuse. *13 technique: the
Second, questioning eneounter. See id. 1518. Because agent’s questions fo- majority opinion appears distinguish were be outset to Almost bought people for by necessity look questions, “[W]e cused: police tween that are themselves, traveling by yesterday, tickets “incriminating,” police ques sometimes and are, carrying drugs.” you traveling East back techniques likely coer tioning that are to be added). 2; (emphasis PL id. 2-A Small’s ex. cive, a majority does not intend assume stop de- after defendant questioning did not major prior our case law. See break from bag in permission to examine the nied him White, 1413, v. 890 also United States F.2d immediately her He asked to her roomette. Cir.1989) (officer’s (8th 1416 comment that room. As he left accompany him outside the drug fit crimi defendant characteristics that to his fellow officer he made an aside reasonably be nals could lead defendant to “Maybe, quite not inaudible: but almost but encounter), to terminate lieve he was free get her the suitcase.” PI. ex. 2. we’ll after denied, 77, 825, cert. 111 112 498 U.S. S.Ct. readily bag identified the on When defendant (1990); Savage, L.Ed.2d 50 United States v. and denied Small the rack outside as hers (D.C.Cir.1989) 1115, 1113, 889 F.2d 1117 it, ques- permission to continued to- he (when questions officer’s of defendant knew what was in tion her about whether she private roomette became direct packed had it. At bag and whether she name, on assumed focused encounter became responded point that that she did Gonzalas, seizure); United States v. 842 bag had not what was in the know Cir.1988) (defendant (5th 748, F.2d 752 it; given a friend had packed that stated working told seized when officer her was delivery bag to her the another. bag), narcotics and asked to search her over clearly that he intended quite then indicated by v. grounds ruled on other United States bag left station to the train hold the after (in Hurtado, (5th Cir.1990) F.2d 74 905 to send it contained would banc). illegal. no nothing He made mention sniff, dog but referenced holding for to search warrant to
his intent
secure
D
bag.6
into the
him look
enable
Defendant
a black woman who
trav-
was
asking
majority
that
incrimina-
states
eling
majority correctly
*14
acteristics of the accused and the details of
(10th Cir.1993),
Anderson,
Judge
in which
interrogation.
the
of
Some
the factors
acknowledged
writing
panel,
the
taken into
youth
account have included the
age, gender,
“such attributes as the
edu-
accused,
education,
his lack
or his
cation,
intelligence of
and
the accused have
intelligence;
any
low
the lack
advice to
relevant,”
recognized
citing
been
as
accused
his
constitutional
Mendenhall,
446 U.S.
rights-
1870, 1879,
(1980),
64 L.Ed.2d
(citations
sider Amendment violated officers like us
lice used tactics those before luggage to examine the
to seek saddle
bags public thoroughfares of travelers on the
that existed in colonial times.
Today the search is cocaine and other drugs; in likely
outlawed tomorrow is tobacco, list, surely endangered
clude on the perhaps many even alcohol.11 And how possessions lug
travelers have lawful in their see; they
gage that do not care for others to pressured
items that will be into reveal by police trains,
ing boarding planes officers acting permitted by
and buses what is out
the instant decision? See Florida v. Ker (a
wick, (Fla.App.1987) So.2d 348-49 sweep
single employing technique officer *16 3,000 bags
able search over in a nine- period). majority
month has stretched permissible
what under the Fourth accept
Amendment further than I can than I
further believe the permit. therefore dissent. America,
UNITED STATES of
Plaintiff-Appellee, MARTIN,
David Joe Defendant-
Appellant.
No. 92-2240. Appeals, States Court of
Tenth Circuit.
April
1994.
Bieber,
(a
State
icating liquor
See
121 Kan.
quantity