United States v. Keith A. Va Lerie

1141 refer, con itself, employment to utilities, furniture, or even rent, salaries, tants’ all contracts and embraces (5) subjected tracts but not was Wortham supplies; (6) by which includes contracts a[n] therefore policies; or leave hour any formal provides ... contractor exclusively by independent commis ... paid Wortham benefits, Danco, Inc. v. Wal- employee service to another.” sion, not did receive (1st Inc., 8, Stores, 14 paying self-em 178 F.3d Cir. Mart responsible and was (7) 1999). free taxes; prima facie case and Wortham To establish ployment 1981, American contract with had to show her section Wortham to terminate under (1) minority; Lerohl v. Friends of a racial Family at will. See she is a member of (8th 486, (2) Family F.3d 488 intended to discrimi Sinfonia, 322 American Minn. race; Cir.) (issue employ were on the basis of against whether workers nate her question (3) is an area contractors concerned independent the discrimination ees or resolved may properly be section 1981. See Williams which enumerated of law Univ., is no F.3d 355 judgment provided there 288 summary v. Lindenwood fact), (8th Cir.2002). de cert. agree of material with issue We genuine 469, 157 nied, insufficient presented S.Ct. 540 U.S. Wortham (2003); Schwieger, allegation 207 F.3d of support her bare L.Ed.2d 374 evidence v. (factors); only Birchem evidence Wort- see also discrimination. 484-86 Columbus, 313 116 F.3d an unauthenticated list produced was Knights ham of Cir.1997) (federal (8th transfers, identify courts consis have which failed of in agents are or the trans that insurance the transferors found race either tently 56(e) contractors). recog op (party we While Fed.R.Civ.P. dependent ferees. See Family’s may not rest on summary judgment American aspects of posing nize some consistent must set forth were but relationship allegations pleadings, with Wortham the over issue for showing genuine we conclude employment, specific facts with Potter, support trial); factors whelming balance of v. 282 Jeseritz Cir.2002) (8th contractor de independent opposing sum (party court’s 545-46 to evidence suf judgment point termination. must mary trial). issue for genuine ficient raise status Independent contractor affirm. we Accordingly, VII, ADEA, Title protected not under protected are Employees A. ICR Thus, claims acts. Wortham’s under these fail as to these statutes pursuant

brought F.3d at Schwieger, 207 law. See

matter Jenkins, at 742 (Title VII); America, UNITED STATES Cochran, (ADEA); Weary Appellant, Birchem, Cir.2004) (ADEA); (6th (state law); Loeckle v. State F.3d at 314 LERIE, Appellee. Co., Keith VAA. F.Supp.2d Auto. Ins. Farm 1999) (N.D.Iowa (extending federal- No. 03-3394. employee status requirement of statute Appeals, Court claim); Cir. aff'd, 210 F.3d 379 ICRA Eighth Circuit. decision). 2000) table (unpublished 9, 2004. March Submitted: indepen as status Wortham’s 14, 2004. Oct. Filed: however, contractor, pre does dent under pursuing claim her clude not limit “Section does

section timely pursuant R.App. to Fed. filed Asst. U.S. Sigler, argued, Robert C. 4(b). NE, P. Omaha, appellant. Atty., Omaha, NE, Davis, argued, M. James Background appellee. January Defendant was indicted on RILEY, and McMILLIAN Before 10, 2003, filed On March he his MELLOY, Judges. Circuit motion was sub suppress. motion to an magistrate judge, to a who held mitted MCMILLIAN, Judge. Circuit permitted par and evidentiary hearing (“defendant”) was A. Lerie Keith Va Following briefs. post-hearing ties to file in by indictment the United charged magistrate judge proceedings, those Court1 for District District report and recommendation on issued with possession one count of on Nebraska Lerie, 2003. United States Va June or more of grams to distribute 500

intent (D. 8:03CR23, Neb. No. 2003 WL 21953948 cocaine, in violation of containing mixture 2003) (hereinafter “Magistrate June (b)(1). 841(a)(1), § Now before 21 U.S.C. report, mag Judge’s Report”). by' the interlocutory appeal this court is following findings judge istrate made from an order of fact. sup motion to granting defendant’s 23, 2002, defendant was On December when defendant’s evidence obtained press California, traveling Angeles, from Los while he was garment bag was searched D.C., Washington, Greyhound on a bus. at a bus traveling by stopped bus and refueling approxi- stopped The bus Lerie, States Va No. station. United mately Greyhound 12:00 noon at the (D.Neb. 8:03CR23, 2003 WL time, Omaha, in Nebraska. At station order) 2003) (memorandum and Aug. Alan Eberle of the Nebraska Investigator Order”). (hereinafter For “District Court (“NSP”) Patrol was at the Omaha State reversal, argues that the performing duties Greyhound bus station (1) holding in -that de district court erred Interdiction Unit. for the Commercial NSP bag was “seized” within garment fendant’s refueled, being bus was defendant’s While of the Fourth Amendment meaning in lower com- looked the bus Eberle bag was removed from when the He noticed a new- baggage in rear of the bus. partments to a room the brought seeking bag among three purpose er-looking garment for the (2) consent to search the bags owner’s inside one of four other in clearly finding erred defendant’s bag had a garment That compartments. gar to the search of his alleged consent an individual’s baggage bearing ticket and was not express ment was not number. It had no telephone but no name stated voluntarily given. For the reasons tag. name Eberle handwritten additional below, order of the district we affirm the claim number computer check of the ran a court. baggage ticket appearing on using the passenger, learned in the district proper

Jurisdiction was Keith,” paid name “Valerie $164 § upon 18 U.S.C. 3231. Juris- court based one-way day of travel for cash on the upon based proper this court diction investigators then had NSP appeal ticket. Eberle § 3731. The notice 18 U.S.C. Bataillon, Joseph United braska. A. 1. The Honorable Judge of Ne- for the District States District garment bag

remove the the bus and for consent to the Magistrate search.” take it baggage into room the rear Judge’s Report at 3.2 Lutter searched the terminal. Eberle had “Valerie Keith” or garment bag. The search approxi- took “Keith paged Valerie” over the intercom mately During one minute. the search system with instructions to come to the Eberle made a comment gar- about the ticket respond- counter. When defendant bag, ment responded and defendant that it ed, Eberle showed defendant his NSP belonged to a friend. Lutter found inside badge and identified himself aas law en- garment bag five bags vacuum-sealed forcement officer. Eberle told defendant containing placed cocaine. Defendant was that he was not and not under trouble under arrest and taken to an NSP office pro- arrest. Eberle asked defendant to where he was read his rights. Miranda identification, duce his bus ticket and some Defendant declined to waive his Miranda which confirming defendant did. After rights, interviewed, declined to be and re- that the name on the ticket and identifica- quested an attorney.3 tion matched the name on garment magistrate that, The judge determined bag, Eberle returned the ticket and identi- at the garment bag time the was removed fication to defendant. Eberle then led de- from the bus and taken to the room the fendant to baggage the room the rear baggage terminal, rear a Fourth Amend- garment terminal where bag defendant’s ment seizure occurred in the form anof was being open held. The room had two investigative Magistrate detention. doors, and inside the room were two or Judge’s Report at magistrate 5-6. The three officers. One of the officers judge opined nevertheless that Eberle had room was Investigator Omaha Police Lut- requisite “the level of reasonable articula- garment ter. When asked if bag was suspicion” ble justify to the seizure. Id. at his, defendant confirmed that it was. 6. magistrate judge The also noted that Eberle told defendant that he was a nar- “the removal bag of the was done accor- investigator cotics and that he was watch- dance to an understanding Grey- between ing people might who be transporting hound and prevent the NSP to illegal drugs. Eberle, passengers According to he from walking asked defendant into the permission refueling area.” Id. search garment bag magistrate and defendant “made an at 6. The judge concluded that, affirmative verbal response request to the totality under of the circum- However, 2. Judge’s Report when Eberle later filled out a sup- 3-4. In his motion to incident, police report concerning pro- he press, sought suppression defendant all vided no details about what defendant said to invoking statements he made after his Mi- give garment consent to bag. the search of the that, rights. government randa argued The Magistrate Judge’s Report at 3. notwithstanding the admitted Miranda viola- tion, question the statements in should never- expressly 3. After defendant declined to waive impeach theless be admissible to defendant. rights requested attorney, his Miranda an magistrate judge rejected govern- The Eberle and press Lutter continued to him to argument suppres- ment's and recommended (de- cooperate. Eberle told that he defendant sion of defendant’s statements. Id. at 10-11. fendant) probably federally prose- "would be government objected The aspect to that of the cuted cooperate possible if he did not magistrate judge’s report and recommenda- ensue”; consequences would when defendant review, tion. On the district court held that expressed cooperating, fears about Lutter the statements were Lutter's) "inadmissible at trial for (Investigator stated that "in his ex- any purpose, including experience, impeachment.” tended he had never Dis- had an in- cooperative injured formant or as a trict Court Order at result 16-17. The cooperation.” Magistrate [his her] appealed ruling. has not that little time had court noted that violation stances, Fourth Amendment no gar- of the between the seizure transpired of de- of the seizure as a occurred result consent, and at 6-7. The ment defendant’s bag. Id. garment fendant’s ’ significant intervening additionally concluded there were magistrate judge held not- voluntarily consented The district court events. defendant bag. testimony at 8- Eberle’s that he garment withstanding Id. the search of the Greyhound’s thus recom- judge merely accommodating magistrate they passengers of defendant’s motion request bring denial mended aas obtained in the refuel- suppress physical parked evidence it was the bus while garment .bag. area, of the result of the search had not met its ing prove defendant’s burden Mag- objections to the parties filed which independent act of free will Regarding the Report.4 Judge’s istrate between the broke the causal connection garment bag, the consent violation and constitutional of the defen- “the removal court held: discovery evidence. that led to the in a room sequestration dant’s its .and conclud- The district court thus at 12-16. uncon- constituted an of the bus illegal taint of the seizure ed that the defen- in violation of the stitutional grant- court purged. not The district been rights because Fourth Amendment dant’s suppress, and the ed motion defendant’s consent, reasonable they occurred without interlocutory timely filed this government cause, or a warrant.” probable suspicion, appeal. Regarding at 11. the District Court Order alleged con- of defendant’s

voluntariness Discussion bag, the garment of the sent to the search rule, review general “[w]e As a noted, "things, among other district court grant sup court’s decision person of sufficient that defendant was reviewing motion de novo pression while consent, the intelligence give officers for underlying factual the determinations him that could to tell he required were not Logan, v. 362 clear error.” United States consent, plain and Eberle was withhold Cir.2004) (8th 530, (citing United F.3d 532 on the weapon; clothes with visible (8th 1032, Walker, 1036 v. 324 States “alone, hand, in a was other defendant denied, Cir.2003) (Walker), U.S. cert. 540 room, po- two armed with least private (2003)). 247, 157 178 S.Ct. L.Ed.2d already in bag was “[h]is lice officers” and raised of the issues For purposes officers” of law enforcement possession re present appeal, we government allegedly gave consent when he con legal the district court’s view de novo con- The district court them to search it. has a seizure concerning whether clusions totality cir- of the cluded under meaning occurred within not cumstances, consent was “defendant’s Amendment, error for clear Moreover, and we review Id. at 14. voluntarily given.” Original U.S. to, testify at trial.” See among aspects defendant objected other 4. Defendant (Documents # 20 and Court File Judge's Report, the conclu- District Magistrate of the review, 22). addition- bag # On garment of the sions that the seizure question of whether ally addressed suspicion, that the sei- based on articulable as a reasonable, occurred seizure had gave Fourth Amendment he that zure being garment bag removed from result garment bag, and such the search of the rear in the room in consent, and detained government the bus given, if was valid. The terminal, though govern- baggage even judge's report inso- magistrate objected to the aspect specifically object to not ment did state- the use of defendant's far as it ''denie[d] Judge's Report. Magistrate purposes impeachment should ments for 1146 findings regard-

the district court’s factual terms of interference with an individual’s ing alleged the nature of defendant’s con- possessory interests —between removing See, sent to e.g., the search. United States from a compartment and set- Smith, (8th Cir.2001) 922, v. 260 F.3d 924 ting it down or near the moving bus and (“We question review the of whether a from the bus to a location farther seizure has occurred de novo and the dis- away. difference, The government trict court’s determination of voluntariness maintains, merely is a “geographical con- error.”) (citing clear United States v. sideration.” Appellant Brief for at 10. (8th 626, Mendoza-Cepeda, 250 F.3d government also suggests that the Cir.2001)). handling an individual’s Property is “seized” within the physical possession actual analogous meaning of the Fourth Amendment when handling packages placed in the mail there meaningful is “some interference stream. Id. (citing United v. States Har with an individual’s interests in (8th Cir.1992) vey, 961 F.2d 1361 {Harvey) property.” Demoss, United States v. curiam), (per denied, cert. 506 U.S. (8th Cir.2002) (Demoss) (1992); S.Ct. 121 L.Ed.2d 173 (quoting Jacobsen, United States v. (8th United Riley, States v. 927 F.2d 1045 109, 113, U.S. 80 L.Ed.2d Cir.1991)). Thus, in support further of its (1984)); Riley, 927 argument that no seizure occurred under Cir.1991) (same). Amendment, the Fourth first argues that defen Gomez, cites Demoss and United garment bag dant’s was not “seized” in the (8th Cir.2002) {Gomez), F.3d 920 as constitutional sense when Eberle had the analogous mail govern stream cases. The bag removed from a lower com cites, ment factually similar, also as a Sev partment on the bus and taken to a room enth involving Circuit case a bag that was in the rear baggage terminal at the Omaha transit, searched during bus Greyhound bus station. For support, the Ward, 144 F.3d 1030-33 Cir. government highlights testimony Eberle’s 1998) {Ward) (“Although [the officer] that, at suppression the hearing in order to lacked a reasonable basis to bag ‘seize’the Greyhound’s accommodate request not to ... agree we do not bag that the inwas people area, have excess refueling it fact in way seized that implicated [the had been practice year NSP’s for over a defendant’s] Fourth Amendment inter any suspicious have bag found on a bus .... ests We are talking solely now about brought into baggage the rear the removal of bag from the common before an attempt was made to contact the bus.”). luggage area of the owner. Eberle also testified that NSP had previously never been advised that their sums up argument its practice of bringing bags into the rear as follows: baggage terminal was unconstitutional. The investigators’ activities with the He stated that it was his understanding bag in the instant point case to the when NSP officer bag removed a they where first discussed bag with manner, from a bag never in the terminal [defendant] office was Greyhound’s theless remained in custody not a constitutional seizure because it and the officers merely taking were care of way produced any no meaningful inter- it. ference with possessory [defendant’s] in- further argues bag. that terest in the Taking bag from there meaningful is no distinction—in the refueling baggage area to the office will never be baggage that their tion converse with find and to then and in an overhead com- placed once moved no constitutional required bag owner It is not uncommon the bus partment. no con- because suspicion” “reasonable rearrange by passenger these or a fellow- is disclosed driver stitutional compartment in the baggage assertion- is buttressed overhead facts. This baggage Eberle to testimony Investigator temporarily or to remove of merely in order that the officers were it in a seat or in the aisle place the effect wishes, and Greyhound’s the use of limited rearrange with and maximize complying Investigator Harvey, Eberle space.” that as far as compartment (removal in the “cus- bag still bag from overhead concerned 1363-64 he re- Greyhound when tody” placement even of bus compartment in the terminal. it to the office moved a seizure of the under aisle was not ‘Ward, Amendment); accord Fourth Appellant at Brief for (mere removal of 144 F.3d at 1032 as- government’s with the disagree We area of a bus was common case, the offi- that, in present sertion Fourth implicating Amend- not a seizure bag, garment handling of defendant’s cers’ Demoss, interests); 279 F.3d at ment cf. asked at which Eberle point to the prior (“While expectation [defendant’s] 635-36 bag, search defendant opened not be package would meaningful inter- any way produced “in no legitimáte, ... route was searched en in- [defendant’s] with ference expectation could be there has This court bag.” in the terest handled or that its would not be the mere removal that neither made clear or could not not physical attributes would ordinary stream from its of an item observed.”). moved, dispos- travel, the distance it nor “seizure” Fourth However, traveling es with passenger a bus that a establish precedents Our compartment issue. in a common placed occurs Amendment seizure reasonably expect the bus does and control dominion “exert[s] an official physically luggage will be re- his or her beyond a by deciding go the [item] over his or her the bus without moved from the exterior of inspection of superficial consent so that to knowledge and detained for further detain [item] and to [item] may sought. be search that [cannot] into characteristics inquiry situation, pur- for the detention such merely holding the by [item].” be observed is to search not seeking consent pose in Gomez, at 923 n. cited 312 F.3d from a for materially different detention Morones, 355 F.3d canine sniff. conducting a purpose Cir.2004). situation, in is question item In either investigative measures pursue detained expectation had a Defendant reasonable expect- be reasonably should what beyond garment of his in the contents of privacy possessory in- having by an individual ed say that defendant That is not to bag. Indeed, the Seventh in the item. terests would that no one reasonably expect could Ward, upon decision Circuit’s which observe, touch, gar- handle, or move relies, this view. In supports government left who has bag. passenger A bus ment case, reasoned Circuit the Seventh luggage com- in a bag his or her common being bag, which was of a that the owner reasonably expects a bus partment of any accompanying by bus without shipped han- degree of subject to some to be bag expectation no reasonable passenger, “Passen- by others. dling and movement surrendered bag, been having that the expecta- objective, reasonable gers have the bus company transport, for would being not removed from the bus and handled touched, handled, or even by the NSP officers. from the bus while en route to its destina- The argues further that the tion; however, the court went on to hold district court clearly finding erred that, when the having unsuccess- officer— defendant did not voluntarily consent to fully attempted identify bag’s own- garment search of his bag and that he er—then decided to detain the also did not explicitly consent to the purposes sniff, conducting canine he search. Brief for Appellant (quoting at 13 did seize the bag the meaning within of District Court Order at 14 (“Certainly the Ward, the Fourth Amendment. defendant did explicitly consent to the (“[H]is at 1033-34 initial decision to detain factors, Based on search. all these I con- for the canine sniff delay risked a clude that the defendant’s consent was not for which the Fourth Amendment would voluntarily given.”)). ex- require justification.”); Walker, 324 cf. plains that it is separately challenging the (“It F.3d at 1036 is clear under our prece- district court’s failure to find express con- dent postal inspector] [the sent “[cjlearly because explicit consent moved the package separate to a room for carries a presumption of voluntariness that sniff, a canine was seized for might be harder to discern in an implicit Fourth Amendment purposes.”) (citing De- consent.” Brief Appellant at 16. moss, 636-37). 279 F.3d at We therefore However, regarding the district court’s hold in present case that defendant’s separate finding adverse that defendant’s garment bag was seized within the mean- independent was not an act of free ing of the Fourth Amendment when will, see District Order at Court Eberle had the bag bus, removed from the government asserts: taken to a room inside the rear baggage The district court’s discussion of terminal, and detained while the officer the defendant’s consent endeavored to locate bag’s owner and search was “independent a[n] act of free obtain consent to search bag. Because will that broke the causal chain between dispute there is no present case that the unconstitutional violation and the Eberle lacked reasonable suspicion sup- consent” really light irrelevant port a seizure of garment bag if one the United States’ assertion that no un- occurred,5 we hold that the seizure violated constitutional seizure place. took rights defendant’s under the only question presented is whether the Amendment. The seizure of defendant’s it consent—whether be the implicit con- garment bag without suspicion reasonable sent found the court below or the was unconstitutional notwithstanding the explicit consent advanced the United government’s Greyhound claims that States on this appeal voluntary in —was asked NSP not to bring passengers into light of the of totality the circumstances. area, refueling the that Eberle believed Brief Appellant for at 20-21. the bag in Greyhound’s remained custody at all times, relevant and that defendant In words, other government’s the was unaware that garment bag was argument whole alleged vis-a-vis the con- government 5. The expressly ("[T]he declines to chal- nal. See Brief Appellant at 5 Unit- lenge the district holding adverse court’s that ed States proposition does not advance the Eberle lacked suspicion support reasonable that there was suspicion reasonable to remove garment seizure of the bag garment if one bag occurred the from the area where the bus bag when the was refueling removed from the being was refueled the office in the bus brought area and baggage itself.”) to the rear termi- original). (emphasis

1149 methamp bag discovery of the garment [the officer’s] the is the search of sent to assumption Ramos, hetamine”)7; United 42 upon the premised Cir.1994) (where (8th garment 1160, was defendant’s F.3d 1164 the in in the room the placed from the defendants were detained violation of terminal, no seizure occurred baggage rear Amendment, the Fourth further “[t]he meaning of the Fourth Amend- within the question whether of the' defen [was] [one thus waived government ment. The has consent, voluntary by found to be dant’s] that defendant’s consent argument the Court, ‘sufficiently the an District was act if illegal taint the seizure an purged the of ”) primary the purge of free will taint.’ occurred.6 illegal seizure States, (citing Wong Sun v. United 371 486, 407, 471, U.S. 83 9 L.Ed.2d 441 S.Ct. the explained, As the district (1963)), denied, cert. 514 U.S. that, if garment is the law well-established (1995); S.Ct. 131 L.Ed.2d 1013 the Fourth seized in violation of Illinois, 590, 601-02, Amendment, evidentiary Brown v. 422 U.S. the fruits of that (1975) (“[E]ven gov the suppressed must be unless S.Ct. seizure L.Ed.2d ernment, upon defendant’s con relying if the in this statements case were found to (1) search, that prove the can the sent to voluntary Amendment, be under the Fifth (2) voluntary and that it was consent was the Fourth Amendment issue remains. In that act of free will broke independent chain, order for the causal between the illegal the chain of causation between illegal arrest the statements made permitted and the consent thereto, broken, to be subsequent Wong Cburt discovery of evidence. See District merely requires Sun state (“The challenged 12-14 evidence Order at ment meet the Fifth Amendment standard 1) if was volun is admissible consent that it ‘sufficiently of voluntariness but 2) was ‘an tarily given, consent purge primary an act of free will to will.’”) (citing act free independent of .”) taint.’ Chavez-Villarreal, 3 bears burden (5th Cir.1993)); 124, 127 see also United prove gave consent that that defendant Becker, States v. 861-62 voluntary independent and an act both Cir.2003) (“Even con defendant’s] if [the Illinois, Brown v. free will. See voluntary, we must sent to the search was (“And the U.S. at S.Ct. bur consider, purposes also of the Fourth rests, admissibility showing den of Amendment, [the defendant’s] whether course, light on the prosecution.”). given consent was circumstances in the government’s tactical decision independent, render it an lawful cause explained: government has of free will—this court further “In made tacti- Just as challenge determining purged cal decision not taint holding lack-of-reasonable-suspicion court’s during allegedly unlawful evidence seized interlocutory appeal, supra note see detention, following we factors: consider not to so has decided too (1) illegal temporal between the proximity finding challenge the court's adverse consent; (2) and the search or seizure alleged was not an that defendant’s circumstances; intervening presence of independent act of free will that broke the (3) purpose flagrancy of official causal chain between the unlawful seizure Becker, States v. 333 misconduct.” United alleged leading the search and the consent 858, (8th Cir.2003) (citing Brown garment bag. 603-04, Illinois, U.S. (1975)). 45 L.Ed.2d416 is, Regarding second factor—that this independent an act was whether the consent present interlocutory appeal not to chal- tactical challenge decision to the district lenge the district court’s adverse finding court decision solely grounds on the that alleged that defendant’s consent was not court was in wrong ruling its will, independent act of free the exclu- that a seizure occurred. upon Based our sionary applies. Accordingly, rule we prior precedent, I majority believe the cor- need not consider whether rectly analyzed issue, that luggage and the clearly findings court erred in its concern- was seized. ing the voluntariness of defendant’s al- Having however, said I believe that leged consent. our prior precedent dealing with the defi nition of a questionable seizure is of validi Conclusion ty. Specifically, join I in Judge Hansen’s The order of the district granting well-written in concurrence Demoss. I be defendant’s motion to suppress is affirmed. lieve that our cases place emphasis undue on the issue of whether there was more MELLOY, Judge, Circuit concurring. superficial than a review of package, or I concur in the result of this case be (or case, in this I cause believe the seizure issue is con piece luggage) was moved to another trolled this Court’s decision in United Proper analysis room. requires consider Demoss, (8th States v. 279 F.3d 632 Cir. ation of temporal element of the in 2002). also, Walker, See United States v. spection. I believe brief detention (8th Cir.2003); 324 F.3d 1032 and United of a piece that does not result Morones, (8th States v. 355 F.3d 1108 Cir. delay passenger, either the 2004). Demoss held the removal of a delivery ultimate luggage, is not a package from a Express conveyor Federal See, seizure. Other circuits have so held. nearby belt to a room for inspec further e.g., Johnson, United States v. 990 F.2d tion Demoss, constituted a seizure. (9th Cir.1992); United States v. case, F.3d at 636. In this the removal was Ward, (7th 1031-32 Cir. even more than intrusive the removal the 1998); Lovell, and United Court held to be a seizure Demoss. Cir.1988). Demoss, the package had given been To be fair to the appellee case, in this Express Federal delivery. case, In our the record is not developed well Mr. Va Lerie on the traveling on the same issue of whether luggage, with his the removal of lug- and the gage removed from the bus bin of would have resulted separate the bus to a building. any delay in pur For its delivery. ultimate Like poses of Fourth analysis, cases, I many this one evolved through the present find the to be indistinguish facts litigation process. At the initial hearing and, therefore, able from Demoss based before magistrate judge, parties upon prior our precedent, a seizure oc evidentiary focused the record on whether curred. there was reasonable suspicion to seize the luggage and whether the defendant con-

It is also important to note that sented to the search. government parties seemed expressly conceded that there to assume that a was no reasonable seizure occurred. suspicion to It was remove Mr. not until luggage. Va Lerie’s later that majority government As the opin- aban- notes, ion doned elected, suspicion argument also reasonable case, not to argue Mr. Va focused on the Lerie’s seizure issue. Conse- purged to search quently, the taint of the the record is unclear as to what illegal seizure. delay, made the if any, may there have been in the luggage a lower from luggage rec- checked luggage. delivery of ultimate a room inside terminal compartment at the left had not the bus ord is clear discovered, if the removal a seizure because constitute does not were drugs time the delay passen- Mr. does not luggage to remove of the the bus onto officers went delivery of travel, timely the search. after affect the carry-on items ger’s Lerie’s Va however, much time unclear, how interfere luggage, or with It is checked lug- removal of checked processing normal elapsed between carrier’s discov- luggage Melloy’s plea bin join Judge from the gage I also luggage. that this appear It drugs. does of what ery of the -issue circuit to “re-visit to our It is also fairly brief. period time of a in -the context a seizure constitutes was held the bus as to whether unclear pack- of inspection removal and temporary for the removal to allow law enforcement sent or that have been luggage ages items or carry-on carriers.” with common checked yet occurred departure scheduled a authority to overrule no panel This has relevant). even facts are (assuming those decision; only the court sit prior panel’s that based sum, I believe I concur. action. Net take ting en banc can such oc- a seizure precedent, prior our upon Clark, Inc., 284 F.3d v. Hess & land however, I believe point, At some curred. Cir.2002). (8th However, pan a when of what the issue re-visit should our circuit cases, varying lines of with el is confronted of a the context a seizure constitutes line of chose which is “free to panel inspection pack- removal temporary Farm v. State Kostelec cases to follow.” sent that have been luggage ages and Co., n. 8 F.3d Fire Cas.& carriers. with common checked Cir.1995). (8th consti on what precedent Our circuit’s dissenting. RILEY, Judge, Circuit checked involving in cases tutes a seizure mandates Constitution Our federal not a model packages or mailed luggage to be secure people right of the. “[t]he v. Go States Compare United clarity. effects, houses, papers, and. persons, their Cir.2002) (8th mez, 923-24 F.3d and sei searches against unreasonable drug when a occurred no seizure (holding Const. U.S. zures, not be violated.” shall Postal Service a U.S. officer at interdiction Ameling, v. IV; see United amend. to a command package facility moved Cir.2003) (Fourth (8th 443, 447 F.3d conveyor belt from twenty yards center through the states applies area), v. Vas sorting in a Amendment). This appeal Fourteenth Cir.2000) (8th quez, Patrol’s State the Nebraska asks whether drug when occurred no seizure (holding pas (NSP) of a commercial removal Express Federal at a officers interdiction the bus’s luggage senger’s checked drug- to a subjected facility in a room compartment luggage lower Harvey, 961 sniffing dog), United States an unrea constituted the bus side Cir.1992) (holding 1363-64 of the Fourth in violation sonable seizure police when occurred no seizure Eighth Circuit Because Amendment. luggage overhead from a bus’s into evolved has in this area precedent ato subject compartment I authority, and because different lines and United States dog), drug-sniffing by the chosen the line follow would not (8th Cir. n. 4 Riley, 927 on Based dissent. respectfully I majority, 1991) occurred (implying I precedent, analysis of this circuit’s my passenger’s airline subjected an police temporary law hold enforcement’s would dog), drug-sniffing passenger’s bus- a commercial removal of Morones, mth States v. United al’s interests in that property.” (8th Cir.2004) (holding seizure Id. The recognized Court seizure relates to when a law occurred enforcement officer freedom of movement: concept “While the at a Express facility Federal removed a of a of property ‘seizure’ is not much dis- package from a conveyor subject cases, belt cussed in our this definition follows the to a dog), and drug-sniffing oft-repeated our definition the ‘sei- Demoss, 632, United States v. person zure’ of a within meaning the (8th Cir.2002) (same). Following prin- the Fourth Amendment-meaningful interfer- ciples ence, in Harvey, Vasquez brief, enunciated and however with an individual’s Gomez, I conclude the removal of Va Ler- freedom of movement.” Id. n. 5. luggage ie’s from the bus’s checked lower case; This is not a search a this is luggage compartment to a room inside the seizure case. And this is not a seizure was not a seizure under the case involving luggage physically pos- Fourth Amendment. sessed commercial passenger. Fourth protects Place, Amendment See 696, United States v. 462 U.S. against 708, both 2637, unreasonable searches (1983) 103 S.Ct. 77 L.Ed.2d 110 unreasonable Supreme seizures. (recognizing luggage detention of within Court has stated ‘search’ occurs passenger’s “[a] when possession immediate intrudes an expectation of privacy society on passenger’s movement, freedom of prepared to consider infring- reasonable is addition the luggage’s freedom of move- Jacobsen, ed.” ment, States v. United 466 U.S. passenger’s such the travel 109, 113, 1652, plans L.Ed.2d 85 may disrupted). This in- case (1984). The Court declared ‘seizure’ “[a] volves luggage, which a passenger occurs property when there is some cannot claim until the luggage reaches its meaningful interference with an individu- destination.8 might 8. A casual observer Roy cite Florida v. been detained in violation of his Fourth er, 491, 507, 1319, 460 U.S. rights, (Jus- S.Ct. only justices Amendment three (1983), White, support L.Ed.2d 229 the Stevens) tices Marshall and mentioned plurality court’s decision in this case. A possibility illegal that an seizure of the Royer held passenger an airline been de passenger’s luggage had had occurred. Id. at tained in violation of the Fourth Amendment. (stating 103 S.Ct. 1319 the officers had In Royer, 460 U.S. at passenger S.Ct. law luggage his seized in the room). enforcement officers became suspicious private of an justices These did discuss passenger drug airline pro who fit a courier analysis issue or their in conclud- approached file. passenger The officers ing Instead, had been seized. airport passenger terminal after justices simply these stated the luggage had had Powell, checked his and headed his been seized. Justice who cast the boarding vote, Ultimately, area. the officers and critical separate fifth wrote concur- passenger up private ended in a room off rence in which he passenger, focused on the so, concourse. The officers also luggage. retrieved the not the doing he referenced passenger’s luggage officers, from the airline and how they met with the brought passenger room, to the private room. When "already in the had asked whether the officers possession could search the obtained luggage.” of his checked luggage, passenger produced key (Powell, J., Id. at 103 S.Ct. 1319 concur- piece luggage. Brennan, unlocked one ring). A fractured Justice separate who wrote a Supreme concurrence, Court asked whether state did not lug- discuss properly applied seized, princi gage had been but rather wrote the ples holding passenger airline passenger "was illegally had been seized when the being illegally detained at the time of stopped officers passenger. first Id. at purported luggage.” (Brennan, J., to a search of his 103 S.Ct. 13191 concur- justices Blackmun, passenger While five held ring). sepa- Justice who wrote a

1153 “the baggage,” because in their interests Eighth Cir- the state To understand no bags the caused removal of temporary sei- Amendment in Fourth precedent cuit cases 'Id. at 1364. a few cases, delay [their] discuss to travel.”9 I will zure stan- me, different which, announce to 213 F.3d Vasquez, v. States In United results, cre- and dards, inconsistent reach (8th Cir.2000), drug interdiction In authority. in our circuit a division ate at a packages Federal examined officers Harvey, 961 v. States United the offi sorting station. When Express a (8th Cir.1992), and officers police 1362 package certain a suspicions cers’ about find a to dog, on mission drug-sniffing aroused, drug- a officers the used became Greyhound bus a drugs, boarded illegal After package. the sniffing dog to sniff refueling. cleaning and stopped it after the officers package, to the dog the alerted an overhead dog alerted The and later package, the obtained detained removed some The officers compartment. the offi Asking whether warrant. search compartment, overhead the luggage from our court held package, the cers seized bags. to two alerted dog and the out examining the actions “the officers’ the overhead bags the returned officers subjecting then and package the side of the bus. After and exited compartment at the as it sat dog to a sniff package the bus, the re-boarded passengers not constitute truck do délivery rear of bags owned who officers asked reasonable, articu- requiring a a detention two alerted. When dog had which because, point, at that suspicion lable they owned acknowledged passengers otherwise inter delayed or had not officers to take their asked them the officers bags, of the processing with the normal fered for the officers. and wait off the bus bags conclusion, In package.” Id.. reaching question Confronted with Harvey United and court relied on the overhead bags from removal Ward, 1024 Cir. v. 144 States unlawful sei- an constituted compartment 1998). Harvey, already discussed Having Our zure, Id. at 1363. it did not. we held decision Circuit’s the Seventh I will discuss meaningful inter- no held “there was court in Ward. passengers]’ with [the ference agree certain- Royer on-and .justices in did passenger’s concluding the

rate dissent applied standard to ly not articulate-a vio did rights had not been Amendment Fourth involving seizure cases reasonably in Fourth Amendment lated, acted officers “[t]he wrote Therefore, rely on luggage. I cannot baggage taking passengerj's stubs [the relegate Royer to this Royer, footnote. but police with room bringing to the his S.Ct. n. 103 Id. 518 out consent.” J., (Blackmun, Finally, Harvey was cited dissenting). Jus later decision in 9. Oúr In United in Kansas. Chief Justice district court with whom federal Rehnquist, tice Wood, F.Supp.2d joined, wrote Burger and Justice O'Connor States Harvey, F.2d at (D.Kan.1998) (citing concluding con the officers' separate dissent Harvey 1363-64), on court relied passenger's duct reasonable occur not] [does pronouncing "a seizure vio rights had not been from temporarily (Rehn baggage 519-32, when lated. Id. at causing another without public area to J., one point dissenting). At did Justice quist, held the plans.” delay any in travel pas seized Rehnquist officers intimate of a a mailer only possessory interest lug they retrieved the senger’s luggage expectancy that the a “contract-based has is Understanding our gage the airline. designated delivered package would be by it task precedent is a formidable (quoting expected time. at the Su address” apply Trying to understand self. (1st LaFrance, Royer United is even more decision in preme Court’s 1989)). Cir. say, majority of daunting. it Suffice Ward, 144 F.3d at Thus, individual at 1032. the court held the deten- checked a bag with a Greyhound luggage tion of the bag would have been a seizure handler, placed who in the only when it “interfer[ed] with [the defen- compartment only accessible from the out- contractually-based expectation dant’s side. The bag’s owner did not board the regain he would possession of bag the bus, but instead flew to the bus’s destina- at a particular time.” Id. at 1033. tion to await the bus and claim bag. the Demoss, United States v. When stopped the bus passenger for a Cir.2002), a law enforcement break, meal drug enforcement officers officer was working drug interdiction at a questioned some bus passengers. When Express Federal facility when he noticed a investigation officer’s led him to the suspicious package. The officer removed outside luggage compartment, he noticed a the package belt, from a conveyor and suspicious bag. When no passenger then noticed some indicators the package ownership claimed of the bag, the officer drugs. contained took officer the bag the subject the bus to package to another room bag facility the the and drug-sniffing a dog. Before a subjected dog station, could arrive at the bus to a dog sniff. bus left without the facts, detained Based on bag. dog When a these the court asked when arrived, finally it alerted to the bag. Once a Fourth Amendment seizure occurred. obtained, search warrant was the officer The court concluded no seizure occurred bag searched the and discovered kilo- when the officer removed the package gram of cocaine and a semi-automatic from the conveyor belt. Id. 635. at How- handgun loaded with hollow-point bullets. ever, the court held the package was Drug enforcement officers up then set seized when the officer the pack- “moved sting at destination, the bus’s final and age away conveyor from the belt and de- caught the bag’s owner as he attempted to tained the package sniff,” for a canine claim his bag. because the officer “exert[ed] dominion Did drug enforcement officers vio- and control over the package.” at Id. late the bag owner’s Fourth Amendment Jacobsen, (quoting U.S. at n. rights by unlawfully seizing his bag? The 1652) (alteration in original). Seventh Circuit they held did not. Id. at Notwithstanding the seizure holding, the 1082-34. bag’s owner argued the offi- court held seizure was not unreason- cers were constitutionally only authorized able because the officer had reasonable to handle bag and it remove from the suspicion to the package. detain Id. at compartment. The Seventh Circuit disa- 636-37,104 S.Ct. 1652. greed, and recognized the defendant The court’s holding ultimate garnered “could reasonably have foreseen that the Hansen, concurrence of Judge who bag handled, would be around, moved and wrote separately to state his belief “that even bus, taken off the whether at inter- no seizure occurred this until case [the mediate stops when the might driver need upon officer] infringed [the defendant]^ to remove gain sort and/or interest in timely delivery pack- access to luggage, other or at a hub like age.” (Hansen, J., Id. at 637 concurring). St. Louis where would have been In reaching conclusion, Judge transferred to another bus. Hansen He could have Harvey, Ward, discussed expectation, Vasquez reasonable words, and fo- other that the bag cusing would touched, not be his Fourth han- Amendment seizure dled, or even removed analysis from the on prior whether a package’s “ultimate bag’s arrival” at its destination. Id. timely contracted for delivery frustrat- [is] is, he removed it-when he seized age-that impli- also Judge Hansen 640. ed.” it for the and held mail stream it from jurisprudence seizure our edly recognized my Id. at dog cast sniff.” “I choose to settled: has not been from this both cases those lot with clear, it is that our anything If piece indicating that a circuits other involving cases to a common mail delivered or are not. packages mailed meaning of ‘seized’within is not carrier decisis, which of stare The doctrine authori- until the decided, “pro by things to' stand means in- interfered with have ties evenhanded, predictable, motes that the mail such terest legal principles, development consistent delivery pack- of the timely of expectation decisions, and judicial reliance on fosters Id. frustrated.” has been luggage age and perceived to the actual contributes De- court decided after our Ten months Payne judicial process.” integrity Gomez, moss, States v. United we decided 808, 827, 111 Tennessee, S.Ct. 501 U.S. (8th Cir.2002), in which 920, 923 (1991). The Su 2597, 115 L.Ed.2d post a package a at removing we said impor “the recognized has preme Court position belt to a conveyor a from office ... ensure[s] stare decisis doctrine of tant interfer minimal away twenty yards “was merely errati change not will law that mailerj’s interest with ence [the and develop principled in a cally, but will stated, further We package.” in the Hillery, Vasquez v. intelligible fashion.” the com taken to package “When 617, 88 254, 265, 106 S.Ct. 474 U.S. activity from the normal away post, mand (1986) has also The Court L.Ed.2d 598 . but still within conveyor belt near soci “permits decisis acknowledged stare center, it was processing confines of are principles ety presume bedrock suspicion and reasonable ‘stopped,’ merely in the rather than the law founded in Id. stop.” required for individuals, thereby con and proclivities De- distinguishing Specifically 923-24. of our constitu integrity tributes to pack: moss, ultimately held the the court ap both government, system of tional opt officer] [the seized until “was not age 265-66, 106 Id. at in fact.” pearance and for conveyor belt it to ed not return S.Ct. destination, is, intended to its transfer and that citizens absolutely critical It is control dominion ‘exert[ed] he until ” understand what law enforcement purposes.’ own package [his] over protects. Unfortu- Jacobsen, 466 U.S. at -Amendment Fourth (quoting at 924 (alteration, Amend- 1652) Fourth pur in the nately, decisions n. clearly enunciate area do not ment seizure original). consistent standard. a -faithfully.apply a sei- addressed Finally, again our court uniformly resolve court should Our year. In United earlier zure issue citi- our help cases -seizure Amendment Morones, guaranteed the freedoms understand zens inspect- (8th Cir.2004), officer was police resolu- Consistent by their Constitution. facility Express aat Federal ing packages of, law will ensure cases also these tion con- from he removed in a solemn duties fulfills its enforcement aside, and belt, it retrieved set veyor any de- Although manner. constitutional to the alerted which dog, drug-sniffing Clause the Seizure scope over bate “exer- the officer court held Our package. necessarily and the Fourth [the with ‘meaningful interference’ cised our rights concentrates on rightly pack- in the interests’ ‘possessory mailer]’s citizens, there should be little debate that compartment. If a bus law enforcement officers must understand down, breaks a passenger should expect what conduct the Fourth Amendment au- to be removed from lug- thorizes and what conduct it condemns. gage compartment and either transferred to another bus or taken inside the bus society

Efforts to rid our of illegal drugs terminal. When a reaches bus its destina- are indeed solemn tasks: public “The has tion, every passenger expects-or a compelling at least detecting interest those hopes-his luggage who would traffic deadly drugs trip survived the per- profit. sonal will be Few removed from problems affecting the the bus and taken to health and welfare of population, Thus, our claim par- area. I conclude ticularly our young, greater cause concern the Fourth Amendment does not frown on than the escalating use of controlled sub- law enforcement handling luggage stances. Much of drug traffic highly by a commercial passenger bus to the organized and conducted sophisticated degree same as a reasonable traveler syndicates. criminal profits are enor- would expect the company’s employees many mous. And drugs ... may easily to handle the luggage, as long any as result, concealed. As a the obstacles to interference delay does not the traveler or detection illegal may conduct be un- frustrate expectations his timely deliv- any matched in other area of law enforce- ery at luggage’s destination. ment.” Mendenhall, United States v. If painting canvas, on a blank Judge 544, 561-62, U.S. Melloy would hold “a brief detention of a (1980) (Powell, J., L.Ed.2d 497 concurring). piece of luggage [checked] that does not I urge the court speak with one voice result the delay of either the passenger, about appropriate standard for Fourth or ultimate delivery luggage, of the is not a Amendment seizure cases. agree seizure.” I standard, with this as When studying our circuit’s seizure See, have other Ward, circuits. e.g., cases, do our holdings depend on how far 1031-32; F.3d at United States v. John- law enforcement officers move a package son, Cir.1992); piece of luggage? Do we focus on the Lovell, United States v. commercial expectations? traveler’s Do (5th Cir.1988). above, As discussed I also fully we discuss what possessory interests believe some of our already cases have a commercial traveler has in his checked applied-this announced-and even standard. luggage? principle One beyond which is The NSP’s handling of lug- Va Lerie’s reproach is commercial expect travelers gage did not constitute a seizure under the their luggage to course, be handled. Of if Amendment, Fourth because the handling their luggage handled, were not it could did not amount to a meaningful hardly interfer- reach its destination. It would ence with Va Lerie’s possessory seem interest in obvious once traveler checks luggage his nor impact his Va Lerie’s luggage, gives he freedom up his immediate of movement. When the interests in NSP removed Va luggage until he Lerie’s checked claims his luggage luggage at from the its bus’s destination. During travel, lower luggage compartment his he must expect lug- his a room in- gage to endure a side the fair terminal amount of asked handling, Va Lerie to including the consent removal his a search luggage from of his luggage, Va the luggage compartment. instance, For Lerie’s travel was delayed. While Va commercial passenger’s luggage may reasonably be Lerie expected should have his damaged in transit and require removal luggage checked would be handled

H57 handled, I cannot would be luggage posses- Lerie’s Ya employees, Greyhound a mean- how this constitutes comprehend cer- luggage in his checked sory interest posses- Lerie’s with Va expectation ingful interference not include tainly did Applying the re- in his Greyhound’s luggage. sory at interest others Greyhound-or princi- from seizure luggage proper not remove quest-would compartment. case, an unreason- I conclude luggage to this ples lower luggage checked the NSP Lerie’s not occur when Va did able seizure NSP to a compartment from luggage luggage lower Lerie’s from removed Va Greyhound’s the terminal inside to a room room luggage compartment lower custody never took and the NSP request, to ask Va Lerie the terminal inside Had the Greyhound. luggage.10 consent to search re- request Greyhound’s ignored NSP lower luggage from

move inside the to a room

compartment to search Lerie

and asked Va bus, imag- I cannot by the standing

while an unlawful holding

ine this court in a handling By

occurred. consis- by Greyhound

way requested to how as expectations Lerie’s

tent with Va are travel somewhat train cerns with the surface beneath other issues lurk 10. Two air travel.... pressing than those with First, less do Fourth Amendment this case. provisions for mandatory search Because the change depending on principles seizure airplanes do not packages put on luggage and at the checked we confront whether buses, or bus travelers train apply to trains or luggage at the bus terminal or checked airline subjective they a argue have can least Second, world- domestic do terminal? personal prop- privacy their expectation of involving commercial terrorist events wide qualifications al- many subject to the erty, impact our Fourth Amendment transportation case Amendment ready imposed Fourth luggage? involving analysis checked seizure society would post-9/11 a law. But cursory pass at court made district subjec- any traveler’s recognize mass transit court Specifically, these issues. objectively rea- privacy as expectation tive Sep- tragic impact the events discussed is, -Id. obviously, matter.” another sonable travel on commercial have tember (citations omit- at *3 n. 1 2003 WL 21956437 sei- Fourth Amendment and on in America ted). Ultimately, court concluded the district stated district court jurisprudence. zure Eighth Circuit Congress or "until passen- airline on a bus-unlike "[pjassengers subjec- passenger’s differently, a bus decides privacy in expectation of some gers-still retain limited, privacy, however expectation tive required to court is baggage that the their recognize as society prepared is one that passengers- "train opined and also protect,” at *3. WL 21956437 Id. 2003 reasonable.” as well-have passengers presumably bus words, these penned the district court Since expec- subjective all yet had to surrender bombings of witnessed terrorist have we luggage." personal their privacy in tations of Madrid, bom- Spain, numerous bus trains 8:03CR23, Lerie, No. v. Va Israel, bombings na- in other bings 2003). (D.Neb. Aug.14, *2-3 WL tions. However, recognized also court vitally im- issues dramatically since raises altered world The district we live in However, do not I September 11: this Nation. portant on was attacked our Nation time at this these issues security in- need address measures the national "Based on case, 9/11, air because following events troduced Va dictate Lerie’s subjective principles ex- have longer can no travelers when it was personal was not seized privacy in pectation of terminal. inside the to room However, security con- national property.

Case Details

Case Name: United States v. Keith A. Va Lerie

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Oct 14, 2004

Citation: 385 F.3d 1141

Docket Number: 03-3394

Court Abbreviation: 8th Cir.