389 F.3d 781 | 8th Cir. | 2004
Lead Opinion
The United States appeals the district court’s
I
On February 24, 2003, Loos and Esco-bar were traveling from Los Angeles, California, to a final destination of Saginaw, Michigan, aboard a passenger bus. At midday, the bus arrived at the bus terminal in Omaha, Nebraska, to refuel. During refueling, the passengers were allowed to disembark and remain at ease in the terminal.
During this Omaha refueling stop, members of the Omaha Metropolitan Commercial Interdiction Unit were stationed at the terminal so as to target drug-trafficking operations. During the refueling, two
Krans and Eberle did not attempt to establish probable cause by subjecting the bags to a drug-dog sniff. Instead, they continued their investigation by attempting to determine if Loos and Escobar had purchased their tickets on the day of travel using cash. The bus company’s computer system, however, was not working so they asked a bus company employee to page the pair. Moments after the page, Loos approached the employee counter and Krans identified himself as a police officer. Krans told Loos she was not under arrest and had done nothing wrong but he needed to talk to her. Loos agreed to talk but became noticeably nervous. When Krans asked for identification, Loos returned to the table where she had been sitting with Escobar and retrieved her driver’s license from her purse. Krans and Eberle followed her to the table and continued the conversation. Among other things, Krans lied by telling Loos a drug-detection dog had in fact alerted on Loos’s and Escobar’s luggage and he asked her if she had the keys to the padlocks. Loos did not respond but began rummaging through her purse in an apparent attempt to locate the keys. Eberle took no active role in the conversation with Loos, but instead introduced himself to Escobar and asked to see his ticket. From the ticket, Eberle was able to determine it had been purchased utilizing cash on the day travel commenced.
Eberle and Krans continued questioning Escobar and Loos until Krans asked Loos to accompany him to the baggage area to identify her bag. Krans then turned and walked away, leaving Loos little choice but to follow him. Eberle, in turn, asked Es-cobar to accompany him to the baggage area. Like Loos, Escobar said nothing but complied with Eberle’s request.
The baggage area is a large room in a non-public part of the terminal. Once inside, Krans asked Loos if he could search her purse for the keys. Loos laid her purse on the table and told Krans to: “Go ahead.” As he searched the purse, another investigator appeared carrying the bags. Krans found the keys and asked if he could search her bag. Again, Loos responded with: “Go ahead.” At no time was Loos advised she was free to object to the search. As Krans searched Loos’s bag, Eberle asked Escobar for permission to search his bag. Escobar said: “Go ahead, you’re going to do it anyway.” Eberle informed Escobar he did not have to consent to the search, but as noted by the district court, the admonition “was ineffectual since Loos had already consented and both defendants were immediately put into custody before there was an attempt to search Escobar’s bag.” Appellant’s Ad. p. 39.
The search uncovered in excess of five kilograms of cocaine. Escobar and Loos were arrested and charged with conspiracy to possess and distribute five kilograms or more of cocaine, 21 U.S.C. § 846, and possession with intent to distribute five kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1). Loos and Es-cobar filed motions to suppress the drug evidence arguing the officers did not have a reasonable articulable suspicion to justify removing the bags from the bus or to detain the bags for further inspection. The government argued the officers had a reasonable articulable suspicion the bags contained illegal drugs, and even assuming
The magistrate judge’s Report and Recommendation recommended denying the suppression motions. The district court, however, rejected the recommendation and granted the motions finding the officers lacked a reasonable articulable suspicion to justify detaining the bags, and the consent given by Loos and Escobar to detain the bags was not freely and voluntarily given. Finally, the district court determined Krans lied about having probable cause to search the bags, and Loos’s and Escobar’s consent to search was too close in time to the misconduct to purge the taint of the illegal detention. In other words, consent was not freely and voluntarily given.
II
The district court’s analysis addressed three distinct issues arising out of the search of Loos’s and Escobar’s luggage. First, the court analyzed whether removing the bags from the bus and carrying them to the baggage area was a seizure supported by a reasonable articulable suspicion. Second, the district court addressed whether Loos and Escobar consented to having the bags removed and brought to the baggage area. Finally, the district court considered whether Loos’s and Escobar’s consent to search the bags, which followed closely on the heels of the illegal detention, was valid. We find it unnecessary to explore the first two issues and focus our analysis on the third.
We require a showing of reasonable articulable suspicion before law en-foreement is permitted to detain or seize an item for purposes of investigation, i.e., to establish probable cause. United States v. Logan, 362 F.3d 530, 533 (8th Cir.2004). If officers do not have a reasonable articu-lable suspicion sufficient to justify detaining an item, any subsequent search of the item will be held unconstitutional even though probable cause was later established. Here, however, the government never established probable cause. Thus, even assuming the initial seizure was proper, the search was permissible only if Loos and Escobar freely and voluntarily consented. See United States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir.2004) (citing Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (holding searches conducted without a warrant based on probable cause are presumptively unreasonable).
“Under the fourth and fourteenth amendments, searches conducted without a warrant issued upon probable cause are presumptively unreasonable, subject to a few specifically established exceptions.” Id. Consent to search is one such exception, and “[a] warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search.” United States v. Brown, 763 F.2d 984, 987 (8th Cir.1985). Whether consent is voluntarily given is a question of fact, Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and on appeal, we review the district court’s fact findings for clear error. United States v. Lee, 356 F.3d 831, 834 (8th Cir.2003).
The test applied to determine if consent is free and voluntary is whether, in light of the totality of the circumstances, consent was given without coercion, ex
Factors we consider when determining if consent was freely and voluntarily given, as set forth in United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.1990), include 1) age, 2) general intelligence and education, 3) whether the individual was under the influence of drugs or alcohol, 4) whether she was informed of the Miranda
Additionally, the environment in which the alleged consent was secured is also relevant. Accordingly, we consider 1) the length of time one was detained, 2) whether the police threatened, physically intimidated, or punished the suspect, 3) whether the police made promises or misrepresentations, 4) whether the suspect was in custody or under arrest when the consent was given, 5) whether the consent occurred in a public or a secluded place, and 6) whether the suspect stood by silently as the search occurred. United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001). We also consider “whether the defendant’s contemporaneous reaction to the search was consistent with consent.” United States v. Jones, 254 F.3d 692, 696 (8th Cir.2001). “The factors should not be applied mechanically, and no single factor is dispositive or controlling.” United States v. Bradley, 234 F.3d 363, 366 (8th Cir.2000) (internal citation omitted).
Here, Krans and Eberle summoned Loos to the employee counter to confront her with their suspicions. There is no evidence Krans threatened, physically intimidated or punished Loos or Escobar. Indeed, Krans told Loos she was not in trouble or under arrest. Nevertheless, after Loos produced her identification, Krans told her a drug-sniffing dog had given a positive indication of drugs in her travel bag.
We recognize the Supreme Court has held when officers have no basis for suspecting a particular individual, they may generally ask questions of the individual, see INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), ask to examine the individual's identification, id.; United States v. Mendenhall, 446 U.S. 544, 557-58, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and request consent to search his or her luggage, see Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). Police may not, however, convey a message that compliance with their requests is required. Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Accordingly, the Supreme Court has held “[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion— albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper, 391 U.S. at 550, 88 S.Ct. 1788; see also United States v. Briley, 726 F.2d 1301, 1304 (8th Cir.1984) (“The misrepresentation may even invalidate the consent if the consent was given in reliance on the officer’s deceit.”) (citations omitted).
When Krans represented a drug-sniffing dog had alerted on the travel bags, he communicated to Loos and Escobar there was probable cause to search and they had no choice but to permit it.
Accordingly, the judgment of the district court is affirmed.
. The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.
. We express no opinion about whether the removal of the bags from the bus and carrying them to the baggage area was supported by a reasonable articulable suspicion.
. Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. We agree with the district court's conclusion that although Krans was speaking specifically to Loos, Escobar was seated in close proximity and could clearly hear the statement.
. Our cases make clear a positive alert by a drug dog constitutes probable cause. See Brown, 345 F.3d at 580; United States v. Gomez, 312 F.3d 920, 925-26 (8th Cir.2002).
Concurrence Opinion
concurring.
From its inception, this case has presented a moving target. Because I agree
Loos and Escobar both filed motions to suppress in the district court. The magistrate judge
Loos and Escobar then filed objections to the magistrate judge’s report and recommendation, attacking the magistrate judge’s “finding that 1) their encounter with the officers was consensual until the officers found the cocaine in the bag, and 2) they voluntarily consented to a search of their belongings.” After a careful de novo review of the record, the district court concluded the magistrate judge “correctly found that the encounter between the officers and the defendants was voluntary and did not become an investigatory detention or seizure until the officers discovered the drugs in Loos’s bag.” The district court also agreed with the magistrate judge’s finding “that Loos voluntarily consented to the search of her purse and bag and that Escobar voluntarily consented to the search of his bag.”
Notwithstanding its findings that Loos and Escobar voluntarily consented to the searches of their luggage, the district court noted Escobar filed an out-of-time objection, arguing, for the first time, “the officers seized his bag from the luggage compartment of the bus without a warrant and took it to a nonpublic area of the bus terminal in violation of his Fourth Amendment rights.” The district court posited the late-filed objection was in response to the district court’s recent decision in an almost identical ease entitled United States v. Va Lerie, 2003 WL 21956437 (D.Neb. Aug.14, 2003). Because the parties had not briefed or argued the seizure issue before the magistrate judge, the district court ordered briefing and an eviden-tiary hearing. The court specifically asked the parties to brief the following issues:
a. Whether the officers’ warrantless removal of the defendants’ bags from the luggage compartment of the bus to the bus terminal’s baggage room was an unconstitutional seizure, and
b. If so, whether the voluntariness of the defendants’ consents to search, as determined by the factors in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), retains the taint of the illegal seizure.
The district court made clear its conclusions “on the voluntariness of the defendants’ consent are consequently only provisional. If new evidence establishes that the seizure of the bag was unconstitutional, evidence about the drugs could be suppressed as fruit of the poisonous tree unless the defendants’ alleged consent to the searches of the purse and the bags removed the taint of the unlawful seizure.”
Finally, the district court again addressed the consent to search issue, initially focusing on whether Loos and Escobar consented to the seizure of the luggage. For the first time, the district court recognized the officer’s lie about the drug dog alerting to the luggage “is the same as stating there is probable cause that the luggage contains contraband and is subject to seizure.” The district court stated the “lie relayed a message that Loos and Es-cobar’s consent was not required for the investigators to seize their luggage,” and any consent was merely “an acquiescence to the investigators’ claim they had the legal right to retrieve and detain [the defendants’] luggage.” Thus, the district court found “[t]he coercive nature in which the investigators obtained access to and then searched the luggage precludes a finding of voluntary consent.”
The district court then noted, “After the illegal seizure of the luggage, Loos and Escobar consented to the search of their luggage. In the [court’s] previous order, the court found that both defendants’ consent was voluntary.” Based on its new-found seizure holding, the district court stated “admissibility is dependent on whether the defendants’ voluntary consent was sufficient to purge the taint of the illegal seizure under the principles of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975),” requiring a showing that “Loos and Escobar’s consent was an intervening independent act of free will sufficient to purge the primary taint of the unlawful invasion.” The district court concluded by “finding Loos and Escobar’s consent to search their luggage was obtained by exploitation of the illegal seizure.” Thus, the district court granted Loos’s and Escobar’s motions to suppress the cocaine seized from their luggage.
The district court’s evolving view of the evidence and the relevant issues allowed the court to grant the motions to suppress. If the district court had not held the removal of the checked luggage from the bus was an unconstitutional seizure, the court would not have changed its consent findings. That is, the court did not experience a dramatic, epiphanic reversal of its consent to search conclusion. The court in its initial analysis and opinion on consent was aware of the dog-alert lie. Only when the district court viewed the consent issue through the lens of a prior unlawful seizure did the court conclude Loos’s and Escobar’s consents to search were constitutionally deficient. Thus, the district court never found Loos and Escobar failed to consent to the searches of their luggage. Instead, the district court specifically found Loos and Escobar voluntarily consented to the search of their luggage, but later found such “consent was not an [intervening] independent act of free will” necessary to purge the taint of the unlawful seizure. The district court’s consent findings were tied directly and exclusively to its seizure holding.
Our court recently decided a seizure case involving the same bus terminal in Omaha, some of the same drug interdiction officers, almost identical facts, and even the same district judge. See United States v. Va Lerie, 385 F.3d 1141 (8th Cir.2004). In Va Lerie, a divided panel of our court held, over my dissent, the removal of checked luggage from the lower luggage compartment of a bus to the same room inside the same Omaha terminal was an unlawful seizure under the Fourth Amendment. Id. at 1148. Because Va Lerie controls the seizure issue, I see no reason for the court in this case to ignore month-old precedent and avoid the seizure issue altogether. Because the seizure issue has been presented squarely to our court in this case, the only authorized holding, in light of Va Lerie, is the officers unreasonably and unconstitutionally seized Loos’s and Escobar’s luggage when the officers removed the checked luggage from the bus’s lower luggage compartment to a room inside the terminal.
Had the panel applied Va Leñe and held the removal of Loos’s and Escobar’s checked luggage from the bus’s lower luggage compartment constituted a seizure, we then could hold the district court did not commit clear error in finding Loos’s and Escobar’s consents to search did not purge the taint of the unlawful seizure. Such a holding is more faithful to the district court’s decision and the parties’ arguments on appeal.
Deciding consent cases is a fact-intensive exercise, requiring district courts to “careful[ly] sift[ ] the unique facts and circumstances of each case” to determine whether an individual voluntarily consented to a search. Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The district court’s sifting of the unique facts and circumstances in this case changed from its first order to its second order. When the district court reviewed the evidence through the lens of an unlawful seizure, it was
The district court properly considered the legal effect of the officer’s lie about the drug dog alerting when pondering whether Loos and Escobar voluntarily consented to the searches of their luggage. The Supreme Court has “stated that even 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, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citations omitted). In a nutshell, the rationale behind this general rule is “[t]he Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation.” Id. at 439, 111 S.Ct. 2382. However, the Supreme Court has further stated, “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion-albeit color-ably lawful coercion. Where there is coercion there cannot be consent.” Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).
Lying about a drug-dog alert could, under some circumstances, including those in this case, convey a message that consent to search is unnecessary. See United States v. Cabrera, 117 F.Supp.2d 1152, 1158 (D.Kan.2000) (finding defendant did not voluntarily consent to a search when an officer lied about a drug dog alerting, noting the officer “relied on a blatant deeeption-the positive dog alert-to further the impression that [the defendant] had no choice but to permit [the] search”); see also United States v. Pena-Saiz, 161 F.3d 1175, 1177-78 (8th Cir.1998) (holding the district court’s no-consent finding was not clearly erroneous, because the individual felt she was under arrest and had to submit to the pat-down search, in part based on the officers saying, “This is what we do. We talk to people, we search people’s bags, we pat search people. This is what we do everyday.”); United States v. Severe, 29 F.3d 444, 446 (8th Cir.1994) (holding threat to obtain a search warrant if individual does not consent to a search is just one factor in deciding whether the totality of the circumstances supports a voluntary consent finding). But cf. United States v. Hawthorne, 982 F.2d 1186, 1191 (8th Cir.1992) (holding district court’s finding of consent was not clearly erroneous when the defendant consented after officers told him they could get a drug dog, even though the defendant knew the dog would alert).
Realizing there is “a vast difference between a misrepresentation of legal authority and a misunderstanding of legal authority,” the district court was not clearly erroneous in finding Loos’s and Escobar’s consents to search, in light of the lie about the drug dog alerting, were insufficient to overcome the taint of an unlawful seizure. See United States v. Allison, 619 F.2d 1254, 1262, 1264 (8th Cir.1980) (holding “a search pursuant to the service of a subpoena duces tecum, as in normal consent search situations,” involves “a question of fact to be determined from the totality of all the circumstances,” and recognizing “a vast difference between a misrepresentation of legal authority and a misunderstanding of legal authority”) (citation omitted). Because I would be faithful to the district court’s decisions, the issues argued by the parties, and our court’s recent
. The Honorable Thomas D. Thalken, United States Magistrate Judge for the District of Nebraska.
. Escobar's enunciation of the issues, in which Loos joined, is strikingly similar.
. The exact seizure issue presented in Va Ler-ie is presented to this panel. I dissented in Va Lerie, because I did not believe our court's precedents-or Fourth Amendment seizure principles-required a holding that the checked luggage had been seized. Id. at 1151 (Riley, J., dissenting) (suggesting seizure law required a holding that "law enforcement's temporary removal of a commercial bus passenger's checked luggage from a lower luggage compartment to a room inside the terminal does not constitute a seizure if the removal of the luggage does not delay the passenger's travel, affect the timely delivery of the checked luggage, or interfere with the carrier's normal processing of the checked luggage”). If Va Lerie did not control the seizure issue in this case, I would reverse the district court's holding that Loos's and Esco-bar's checked luggage was seized when it was removed from the lower luggage compartment to a room inside the bus terminal. See id. at 1151-57. However, I cannot ignore the holding in Va Lerie and avoid the seizure issue altogether. Nevertheless, I reiterate the concerns expressed in my dissent in Va Lerie.