UNITED STATES of America, Appellant, v. Keith A. VA LERIE, Appellee.
No. 03-3394.
United States Court of Appeals, Eighth Circuit.
Oct. 3, 2005.
Submitted: April 12, 2005.
James M. Davis, argued, Omaha, NE, for appellee.
Before LOKEN, Chief Judge, McMILLIAN, WOLLMAN, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON, Circuit Judges, en banc.
RILEY, Circuit Judge.
Keith Va Lerie (Va Lerie) was charged with possession with intent to distribute 500 grams or more of cocaine, in violation of
I. BACKGROUND
On December 23, 2002, Va Lerie was traveling on a Greyhound bus from Los Angeles, California, to Washington, D.C., when the bus stopped around noon for refueling at the Greyhound station in Omaha, Nebraska. During refueling and cleaning, Greyhound required its passengers to get off the bus and wait inside the bus terminal. NSP Investigator Alan Eberle (Investigator Eberle) was performing drug interdiction duties at the Greyhound station when Va Lerie‘s bus stopped for refueling. During the refueling, Investigator Eberle looked inside the bus‘s lower luggage compartments, and he found a newer piece of luggage displaying a baggage ticket with Va Lerie‘s name, but no telephone number or passenger name tag. When Investigator Eberle went to the rear baggage terminal to run a computer check of the luggage‘s claim number, he discovered the passenger had paid cash on the day of travel fоr a one-way ticket to Washington, D.C. Investigator Eberle asked a fellow law enforcement officer to remove the luggage from the bus and take it to a room inside the rear baggage terminal. Law enforcement removed the luggage from the bus and took it to the rear baggage terminal to seek the passenger‘s permission to search the luggage, as opposed to bringing the passenger to the bus in the refueling area, because “Greyhound does not want to have passengers walking over
Investigator Eberle then paged Va Lerie, who approached the ticket counter. Investigator Eberle, wearing jeans, a t-shirt and a winter coat, displayed his badge, identified himself as a law enforcement officer, and informed Va Lerie he was not in trouble or under arrest. After Va Lerie agreed to speak with Investigator Eberle, Va Lerie displayed his bus ticket and identification, which matched the information on the luggage which had been removed from the bus. Va Lerie then agreed to follow Investigator Eberle to a room in the rear baggage terminal where Va Lerie‘s luggage was being held. The room had two open doors, and one or two other officers were already inside the room. Va Lerie confirmed the luggage belonged to him. Investigator Eberle then declared he was a narcotics investigator who was watching for people who might be transporting illegal drugs. When Investigator Eberle sought permission to search the luggage, Va Lerie made an affirmative verbal response to the request for consent to the search. After Va Lerie verbally consented to a search of his luggage, another officer took approximately one minute to execute the search. During the search, Va Lerie never objected, but he claimed the luggage actually belonged to a friend. Law enforcement discovered five vacuum-sealed bags containing cocaine inside Va Lerie‘s luggage.
Va Lerie was charged with possession with intent to distribute 500 grams or more of cocaine.
At the beginning of the suppression hearing in front of a magistrate judge, Va Lerie‘s attorney stated, “With respect to [the motions to suppress], Judge, very simple. Question of consent, no consent. Bus stop.” The government agreed “[t]he issue on the search is simply whether consent exists or doesn‘t exist.” During the suppression hearing, Va Lerie‘s attorney implied, for the first time, he also was arguing an unconstitutional seizure occurred. At that point, the magistrate judge informed Va Lerie‘s attorney his suppression “motion deals with a search of the bag and probably not the seizure of the bag.” Va Lerie‘s attorney replied, “That‘s not the input. It‘s a Fourth Amendment violation. I‘m not restricting it to-he never consented to that being-that bag being seized and searched.” At that point, the magistrate judge allowed Va Lerie to expand his motion to suppress to include an unconstitutional seizure argument.
With the seizure issue before the court, the magistrate judge repeatedly asked Va Lerie‘s attorney to explain how “the relocation of the garment bag” from the lower luggage compartment to a room inside the terminal, in compliance with Greyhound‘s request not to take passengers to the refueling area, constituted a seizure under the Fourth Amendment. Va Lerie failed to provide the judge with authority support
The magistrate judge determined the removal of Va Lerie‘s luggage to a room inside the rear baggage terminal was not an unreasonable seizure under the Fourth Amendment because (1) Investigator Eberle had “the requisite level of reasonable articulable suspicion in order to briefly detain the bag,” and (2) “the removal of the bag was done in accordance to an understanding between Greyhound and the NSP to prevent passengers from walking into the refueling area.” After judging the credibility of both Va Lerie and Investigator Eberle, the magistrate judge concluded Va Lerie voluntarily consented to the seаrch of his luggage. In support of this conclusion, the magistrate judge found (1) Va Lerie, a 37-year-old with three years of college education, verbally consented to the search; (2) Va Lerie understood Investigator Eberle‘s questions; (3) Va Lerie was not impaired; (4) Investigator Eberle displayed his badge, explained he was a narcotics officer, informed Va Lerie he was not in trouble or under arrest, asked Va Lerie to follow him to the rear baggage terminal, and asked Va Lerie for consent to search his luggage; (5) the search occurred in a room with two open doors in the presence of two to four officers; and (6) no evidence showed Va Lerie was under coercion or duress during his encounter with law enforcement. Based on findings that law enforcement had reasonable articulable suspicion to detain Va Lerie‘s luggage and Va Lerie voluntarily consented to the search of his luggage, the magistrate judge recommended the district court deny Va Lerie‘s motion to suppress the evidence obtained as a result of the search of the luggage.
Va Lerie objected to the magistrate judge‘s recommendations that (1) the seizure of Va Lerie‘s luggage was reasonable, and (2) Va Lerie consented to the search. The government filed no objections to the magistrate judge‘s recommendation that Va Lerie‘s motion to suppress evidence be denied.2
Without holding another hearing, the district court considered Va Lerie‘s objections to the magistrate judge‘s report and recommendation. Addressing the seizure issue, the district court concluded “the removal of [Va Lerie‘s checked luggage] and its sequestration in a room of the bus terminal constituted an unconstitutional seizure in violation of [Va Lerie]‘s Fourth
After concluding law enforcement unconstitutionally seized Va Lerie‘s checked luggage, the district court then considered “whether [Va Lerie]‘s alleged consent to the search of the bag removed the taint of the unlawful seizure.” In addressing this issue, the district court asked whether Va Lerie‘s consent was voluntarily given, and, if so, whether the “consent to the search was an independent act of free will that broke the causal chain between the unconstitutional violation and the consent.”
Regarding the voluntariness of Va Lerie‘s consent to the search of his luggage, the district court noted Va Lerie was a sober adult of normal intelligence; Va Lerie voluntarily responded to Investigator Eberle‘s page; Va Lerie acquiesced in Investigator Eberle‘s request to accompany him to a room with two open doors in the rear baggage terminal where at least two other officers were waiting with Va Lerie‘s luggage; Investigator Eberle testified Va Lerie consented; Va Lerie‘s “own testimony indicates that he did not object to the search“; Investigator Eberle was not in uniform and did not display his weapon; and no law enforcement officer directly threatened or coerced Va Lerie. Based on these findings, the district court, however, concluded Va Lerie did not voluntarily consent to the search, because “there is no reason to believe [Va Lerie] or anyone else-even most lawyers-would know that they could refuse the request to search the bag.” Furthermore, the district court noted Va Lerie “was alone, in a private room, with at least two armed police officers,” and the officers already had Va Lerie‘s luggage when they asked for consent to search it.
The district court then considered whether Va Lerie‘s apparent consent purged the unlawful taint of the unconstitutional seizure. In considering this question, the district court noted little time had passed and no significant intervening events had occurred between the unlawful seizure and Va Lerie‘s apparent consent. The district court concluded the law enforcement officers’ purpose in removing the luggage was to obtain incriminating evidence, and their accommodation of Greyhound‘s request not to bring passengers to the refueling area, a policy of Greyhound for over a year, was irrelevant. Thus, the district cоurt determined Va Lerie‘s “apparent acquiescence [in the search] did not remove the taint of the illegal seizure.” Based upon this reasoning, the court held “the evidence obtained in the search after the illegal seizure is ‘fruit from a poisonous tree.‘” Sustaining Va Lerie‘s objections to the magistrate judge‘s report and recommendation, the district court granted Va Lerie‘s motion to suppress.
Acting with the approval of the United States Solicitor General, the government timely filed this appeal. The government‘s main contention is the NSP‘s removal of Va Lerie‘s checked luggage from the bus‘s luggage compartment to the rear baggage terminal to seek permission to search does not constitute a seizure under the Fourth Amendment, “because there was no meaningful interference with [Va Lerie]‘s possessory interest in the [luggage] on the part of the investigating officers.” Depending on this court‘s resolution of the seizure issue, the government also contends the district court should have adopted the magistrate judge‘s recommendation that Va Lerie consented to the search of his luggage.
A divided panel of this court affirmed the district court‘s suppression of the evidence obtained as a result of the search of Va Lerie‘s luggage. United States v. Va Lerie, 385 F.3d 1141, 1150 (8th Cir. 2004). In reaching this conclusion, the panel majority held Va Lerie‘s luggage “was seized within the meaning of the Fourth Amendment when [Investigator] Eberle hаd the bag removed from the bus, taken to a room inside the rear baggage terminal, and detained while the officer endeavored to locate the bag‘s owner and obtain consent to search the bag.” Id. at 1148. Because the government conditioned its consent argument on prevailing with its seizure argument, the panel held the government “waived the argument that [Va Lerie]‘s consent purged the taint of the illegal seizure if an illegal seizure occurred.” Id. at 1148-49. Thus, the panel never considered “whether the district court clearly erred in its findings concerning the voluntariness of defendant‘s alleged consent.” Id. at 1150. Two panel members urged the en banc court to “re-visit the issue of what constitutes a seizure in the context of a temporary removal and inspection of packages and luggage that have been sent or checked with common carriers.” Id. at 1151 (Melloy, J., concurring); id. (Riley, J., dissenting). The en banc court vacated the panel‘s opinion and granted rehearing en banc.
II. DISCUSSION
A. Standard of Review
In considering the district court‘s suppression of evidence, we review the district court‘s conclusions of law de novo and its factual findings for clear error. United States v. Barry, 394 F.3d 1070, 1074 (8th Cir. 2005). We will affirm the district court‘s order granting Va Lerie‘s “motion to suppress ‘unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.‘” Id. (quoting Unitеd States v. Welerford, 356 F.3d 932, 935 (8th Cir. 2004) (citation omitted)). Because a seizure decision involves a pure question of law, we review de novo the district court‘s holding that the removal of Va Lerie‘s luggage from the bus constituted a seizure in violation of the Fourth Amendment. See United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001). We review for clear error the district court‘s factual finding that Va Lerie did not voluntarily consent to the search. Welerford, 356 F.3d at 935.
B. Seizure
Our federal Constitution mandates “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
of that argument, we recognize a principled interpretation, and consistent application, of the Seizure Clause of the Fourth Amendment, as explained by the Supreme Court of the United States, is vital to the protection of civil liberties and also to law enforcement‘s ability to conduct itself in a constitutional manner in the modern era where law enforcement‘s duties safeguarding commercial transportation, whether by air, land or sea, have never been more solemn. To that end, we strive to speak with a clear voice when discussing thе scope of the Seizure Clause.
The Fourth Amendment protects against both unreasonable searches and unreasonable seizures.
seizure of the person.” Skinner, 489 U.S. at 618, 109 S. Ct. 1402. It necessarily follows that not every governmental interference with a person‘s property constitutes a seizure of that property under the Constitution.
After announcing a seizure of property “occurs when there is some meaningful interference with an individual‘s possessory interests in that property,” the Court concluded in Jacobsen that law enforcement‘s exertion of dominion and control over private property for its own purposes constituted a seizure in that case. Thus, the facts of Jacobsen shed some light on how to apply the Supreme Court‘s seizure standard. In Jacobsen, Federal Express employees noticed a white powdery substance inside a damaged package, which prompted the employees to contact the Drug Enforcement Administration (DEA). When a DEA agent arrived and was told about the white powdery substance, he opened the damaged package, removed four plastic bags from a tube inside the package, removed traces of the white substance from the plastic bags, and field tested the white substance. The field tests revealed the white substance was cocaine. Other DEA agents also field tested the white substance. When determining whether the agents unlawfully seized and searched the package, the Court concluded the DEA “agents’ assertion of dominion and control over the package and its contents did constitute a ‘seizure.‘” Id. at 120, 104 S. Ct. 1652. After recognizing “the Magistrate and the District Court found that the agents took custody of the package from Federal Express after they arrived” even though the package‘s owners “had entrusted possession of the items to Federal Express,” the Court held “the decision by governmental authorities to exert dominion and control over the package for their own purposes clearly constituted a ‘seizure.‘” Id. n. 18, 104 S. Ct. 1652. Notwithstanding the Court‘s seizure decision, the Court concluded the seizure was not unreasonable because the agents had probable cause to believe the package contained contraband. Id. at 121-22, 104 S. Ct. 1652.
We do not believe the Court meant to express two different standards-i.e., meaningful interference with a person‘s possessory interests and dominion and control-when instructing courts how to apply Fourth Amendment seizure principles. Instead, we believe the Court referenced dominion and control when applying the seizure standard. That is, we believe the Court concluded law enforcement‘s exertion of dominion and control over the package for its own purposes-and in contravention to Federal Express‘s custody of the package-constituted a seizure under the Fourth Amendment because it constituted some meaningful interference with a person‘s possessory interests. Thus, the seizure standard prohibits the government‘s conversion of an individual‘s private property, as opposed to the mere technical trespass to an individual‘s private property. See, e.g., United States v. Karo, 468 U.S. 705, 712-13, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (explaining the existence of a mere technical physical trespass to an individual‘s property “is only marginally relevant to the question of whether the Fourth Amendment has been violated,” as “[a] ‘seizure’ of property occurs when ‘there is some meaningful interference with an individual‘s possessory interests in that property’ “) (quoting Jacobsen, 466 U.S. at 113, 104 S. Ct. 1652); Jacobsen, 466 U.S. at 124-25, 104 S. Ct. 1652 (stating “the field test [of the white substance] did affect respondents’ possessory interests protected by the [Fourth] Amendment, since by destroying a quantity of the powder it converted what had been only a temporary deprivation of possessory inter
Armed with the Supreme Court‘s enunciation of Fourth Amendment seizure principles, we ask whether law enforcement‘s removal of a commercial bus passenger‘s checked luggage from the bus‘s lower luggage compartment to a room inside the bus terminal to seek the passenger‘s consent to search the luggage constitutes some meaningful interference with the passenger‘s possessory interests in his luggage.
Seizure issues involving checked luggage are hardly new for circuit courts. A number of circuit court decisions addressing seizure issues similar to this case support our holding the NSP did not seize Va Lerie‘s checked luggage, because the removal of the luggage did not delay his travel or significantly impact his freedom of movement, affect the timely delivery of the checked luggage, or deprive Greyhound of its custody of the checked luggage. Nearly two decades ago, the Fifth Circuit confronted a similar case. In United States v. Lovell, 849 F.2d 910 (5th Cir. 1988), border patrol agents saw a nervous аirline passenger check his luggage. The agents then went to the airline baggage area, removed the passenger‘s checked luggage from the baggage conveyor belt, and compressed the sides of the luggage several times. When compressing the sides of the luggage, the agents smelled marijuana. The agents then subjected the detained luggage to a drug-sniffing dog, which alerted to the luggage. Based on this information, the agents obtained a search warrant, searched the luggage, and discovered sixty-eight pounds of marijuana. Id. at 911. After being charged with possession with intent to distribute, the defendant moved to suppress the marijuana, claiming “the agents’ removal of his luggage from the conveyor belt and their manipulation and sniff of that luggage constituted a seizure and search within the meaning of the fourth amendment.” Id. at 912. The district court denied the motion to suppress, and the Fifth Circuit affirmed, holding the agents did not seize the defendant‘s luggage. Id. at 916.
In considering whether the agents’ conduct constituted some meaningful interference with the defendant‘s possessory interests in his checked luggage, i.e., whether a seizure had occurred, the Fifth Circuit focused on the defendant‘s freedom of movement and his expectation of timely delivery of his checked luggage. See id. The court quoted Jacobsen and distinguished Place, noting the defendant “had surrendered his bags to a third-party common carrier with the expectation that the carrier would transport the bags to [the defendant]‘s destination for him to reclaim when he arrived” and the defendant‘s travel would not “have been interfered with or his expectations with respect to his luggage frustrated” had the agents not smelled marijuana. Id. Thus, the court held “[t]he momentary delay occasioned by the bags’ removal from the conveyor belt was insufficient to constitute a meaningful interfer
The Ninth Circuit later adopted the Fifth Circuit‘s approach in Lovell in a case similar to the one we confront today. In United States v. Brown, 884 F.2d 1309 (9th Cir. 1989), the defendant, who appeared to be nervous, checked his new luggage after paying cash for a one-way airline ticket. Based on this information, law enforcement agents had the defendant‘s checked luggage “held.” Id. at 1310. The agents then asked the defendant if they could speak with him, informed him he was not under arrest and that he was free to leave, and asked if they could search his carry-on luggage as well as his checked luggage. The defendant consented to a search of both his carry-on and checked luggage. Because the checked luggage was locked, the agents asked the defendant for the keys to the luggage. Even though the defendant claimed he did not have the keys to the luggage, he produced a set of luggage keys. When the defendant refused to accompany the agents when they took the keys to try them on the checked luggage, the agents handcuffed the defendant pending the search. The seаrch of the checked luggage produced two kilograms of cocaine. Id. at 1310-11. The defendant moved to suppress the cocaine, contending the detectives violated the Fourth Amendment by stopping him and holding his checked luggage.
After holding the agents’ initial contact with the defendant did not constitute a seizure, the court addressed an issue of first impression for that circuit: “whether the brief diversion of [the defendant]‘s suitcases from their journey to the cargo hold was a seizure,” i.e., whether the detention of the defendant‘s checked luggage was a meaningful interference with the defendant‘s possessory interest in his luggage. Id. at 1311. The court first acknowledged the Place distinction the Fifth Circuit drew in Lovell “between taking property from a traveler‘s custody and merely detaining bags which the traveler has already relinquished to a third-party common carrier.” Id. The court then noted that, had the defendant not consented to a search of his luggage, “the brief detention of [the defendant]‘s bags would have in no way interfered with his travel or frustrated his expectations with respect to his luggage.” Id. Thus, the court held the agents’ detention of the defendant‘s luggage in the cargo hold area of the terminal did not constitute a Fourth Amendment seizure.5 Id.
A few years after Brown, the Ninth Circuit again addressed a seizure case in the context of checked luggage. In United States v. Johnson, 990 F.2d 1129 (9th Cir. 1993), an airline passenger, who purchased a one-way ticket with cash, checked in late such that his checked luggage could not be placed on the samе flight, but was scheduled to be placed on the next flight leaving two hours after the passenger‘s flight. Without interfering with the passenger in any way, law enforcement officers received permission from the airline to go onto the tarmac to investigate the checked luggage. When the officers asked an airline representative if they could take the luggage inside the terminal, the airline representative allowed the officers to take the luggage to an airline office inside the terminal, “but refused to relinquish custody of the luggage to the Drug Enforcement Agency (DEA) office at the airport.” Id. at 1130. The airline representative later “allowed the officers, with the airline representative present, to take the luggage to the DEA office” inside the airport. Id. at
Here [the passenger]‘s only interest was that the airline, as his bailee, would place his luggage on the next plane, which was to leave about two hours after his plane. The entire process of removing the luggage from the cart, taking it from one office to the other, and having the dog sniff it, was completed prior to the time the luggage would have been placed on the airplane. The airline did not give up custody of the luggage to the narcotics officers until after the dog had indicated the presence of narcotics.... Because nothing that the officers did interfered with the [passenger]‘s possessory interests in his luggage prior to the dog sniffing, there was no seizure of the luggage.
The Seventh Circuit specifically has considered the consequences of police interference with luggage checked with Greyhound. In United States v. Ward, 144 F.3d 1024 (7th Cir. 1998), the defendant in Los Angeles checked his luggage with Greyhound, which placed the luggage in the bus‘s luggage compartment accessible only from the outside. The defendant did not board the bus, but instead flew to the bus‘s destination in Indianapolis to await the bus and claim his luggage. When the bus stopped for a passenger meal break in Springfield, Missouri, drug enforcement officers looked inside the luggage compartment and noticed a suspicious piece of luggage. When no passenger claimed ownership of the suspicious piece of luggage, an officer removed the luggage to subject it to a dog-sniff. After the bus left the station, the officers subjected the detainеd luggage to the dog-sniff, and the dog alerted to the luggage. Once a search warrant was obtained, an officer searched the luggage and discovered a kilogram of cocaine and a semi-automatic handgun loaded with hollow-point bullets. Officers later apprehended the defendant as he attempted to claim his luggage in Indianapolis. Id. at 1028.
Confronted with the question of whether the drug enforcement officers violated the Fourth Amendment by removing the checked luggage from the bus‘s luggage compartment, the Seventh Circuit focused on the defendant‘s possessory interests in his luggage. Id. at 1030-34. Initially, the court noted the defendant “had no cognizable interest in repossessing his bag until the bus arrived” at its destination. Id. at 1031. The court explained that the defendant, by “surrender[ing] custody of the bag to Greyhound ... could reasonably have foreseen that the bag would be handled, moved around, and even taken off the bus, whether at intermediate stops when the driver might need to remove the bag to sort and/or gain access to other luggage, or at a hub like St. Louis where the bag would have been transferred to another bus.” Id. at 1032. The court concluded the defendant “could have no reasonable expectation, in other words, that the bag would not be touched, handled, or even removed from the bus prior to the bag‘s arrival” at its destination. Id. Because the defendant had few possessory interests in his checked luggage, and bеcause he should have expected his luggage would
In reviewing the Supreme Court‘s enunciation of Fourth Amendment seizure principles, as well as the approaches taken by the Fifth, Seventh and Ninth Circuits in applying Fourth Amendment seizure principles to checked luggage cases, we make a few observations of our own. Because seizure is defined as some meaningful interference with an individual‘s possessory interests in his property, not all police interference with an individual‘s property constitutes a Fourth Amendment seizure, i.e., the police do not seize property every time they handle private property. By requiring some meaningful interference with an individual‘s possessory interests in property, the Supreme Court inevitably contemplated excluding inconsequentiаl interference with an individual‘s possessory interests. We also readily recognize the Supreme Court instructed courts to consider an individual‘s possessory interests in his property in determining whether a seizure has occurred.
Applying the Supreme Court‘s definition of seizure with an eye toward the applications provided by the Fifth, Seventh and Ninth Circuits over the past seventeen years, we glean a number of principles that relate to checked luggage cases. First, the Fourth Amendment‘s Seizure Clause prohibits the government from restraining an individual‘s freedom of movement. Thus, if law enforcement‘s detention of checked luggage delays a passenger‘s travel or significantly impacts the passenger‘s freedom of movement, the Seizure Clause is implicated. Second, a commercial bus passenger has less possessory interest in checked luggage than he has in carry-on luggage in his immediate possession. To be certain, a passenger gives up his immediate possessory interest when he checks his luggage with the commercial carrier as bailee. At a minimum, the passenger‘s possessory interests in his checked luggage entail the right (or at least the expectation) to regain custody, i.e., reclaim immediate possession of the checked luggage at the passenger‘s or the luggage‘s destination. Finally, a commercial bus passenger who checks his luggage should reasonably expеct his luggage to endure a fair amount of handling-if his luggage were not handled, it would not reach its destination. For instance, a commercial bus passenger‘s checked luggage must be sorted, loaded, rearranged, possibly transferred to another bus, and unloaded. The luggage may be damaged and require removal from the luggage compartment. If a bus breaks down, a passenger should expect his luggage to be removed from the luggage compartment and either transferred to another bus or taken inside the bus terminal. As long as law enforcement officers do not deprive
Boiling these principles down, we believe courts must focus on three factors when considering whether law enforcement‘s interference with checked luggage constitutes a seizure. First, did law enforcement‘s detention of the checked luggage delay a passenger‘s travel or significantly impact the passenger‘s freedom of movement? Second, did law enforcement‘s detention of the checked luggage delay its timely delivery? Third, did law enforcement‘s detention of the checked luggage deprive the carrier of its custody of the checked luggage?7 If none of these factors is satisfied, then no Fourth Amendment seizure has occurred. Conversely, if even а single factor is satisfied, then a Fourth Amendment seizure has occurred.
Our holding is consistent with the holdings of other courts that have confronted seizure issues involving checked luggage. See, e.g., State v. Peters, 189 Ariz. 216, 941 P.2d 228, 232 (Ariz. 1997) (en banc) (holding the “warrantless detention [of checked luggage at an airport] for examination without reasonable suspicion is not a seizure and is permissible if made in such a manner that neither the traveler nor his luggage is unreasonably delayed“)8; State v. Goodley, 381 So. 2d 1180, 1182 (Fla. Dist. Ct. App. 1980)
(“It is obvious that [an airline] traveler who checks his luggage has no knowledge and, in fact, no real concern as to precisely where his bag may be located within the airline‘s custody at any given time. It follows that the slight movement [by law enforcement] of [the defendant]‘s unopened bag from the [baggage] cart to the floor [about a foot away so a drug dog could conduct a sniff search] did not, even remotely, amount to a fourth amendment seizure ....“); cf. United States v. Gant, 112 F.3d 239, 240, 242 (6th Cir. 1997) (holding police officers’ removal of luggage from an overhead compartment of a Greyhound bus to subject the luggage to a drug-sniffing dog did not constitute a seizure under the Fourth Amendment).
Our holding also comports with the views expressed by many judges in this circuit. See, e.g., Va Lerie, 385 F.3d at 1150 (Melloy, J., concurring) (opining “that a brief detention of a piece of luggage that does not result in the delay of either the passenger, or ultimate delivery of the luggage, is not a seizure“); Gomez, 312 F.3d at 923-24 (Bowman, J., with Hansen and Bye, JJ.) (holding no seizure occurred when a drug interdiction officer at a post office moved a package to a command center twenty yards from a conveyor belt in a sorting area); Demoss, 279 F.3d at 640 (Hansen, J., concurring) (choosing “to cast my lot with those cases both from this and
Having announced what we hope are manageable factors to consider when confronted with seizure cases involving checked luggage, we now apply those factors to this case. First, the NSP‘s brief and temporary removal of Va Lerie‘s checked luggage from the luggage compаrtment to ask Va Lerie to consent to a search did not delay Va Lerie‘s travel or impact his freedom of movement. Va Lerie‘s travel was delayed, and his freedom of movement impacted, only after the NSP searched the luggage and discovered a large amount of illegal drugs. Second, the NSP‘s removal of Va Lerie‘s checked luggage from the bus did not affect the timely delivery of the luggage. No evidence suggests the luggage would not have been placed back on the bus for transport to its destination had it not been for the discovery of illegal drugs. Finally, Va Lerie‘s possessory interests in his checked luggage certainly included an expectation that Greyhound-or others at Greyhound‘s request-would remove the luggage from the lower luggage compartment. The NSP would have preferred to bring Va Lerie to the bus in the refueling area to seek permission to search, but Greyhound asked the NSP not to bring passengers to that area. Thus, the NSP removed Va Lerie‘s checked luggage from the lower luggage compartment to a room inside the terminal at Greyhound‘s request. In doing so, the NSP never deprived Greyhound of its custody of Va Lerie‘s checked luggage.9 We conclude the NSP‘s removal of Va Lerie‘s checked luggage from the bus to a room inside the terminal to seek consent to search did not constitute a meaningful interference with Va Lerie‘s possessory interests in his luggage. Therefore, no
C. Consent to Search
Contingent upon our reversal of the district court‘s seizure decision, the government asks us to reverse the district court‘s finding Va Lerie did not voluntarily consent to the search of his luggage. Because we reverse the district court on the seizure issue, we must examine the district court‘s consent decision. If Va Lerie voluntarily consented to the search of his luggage, then no Fourth Amendment violation occurred in this case. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); United States v. Brown, 345 F.3d 574, 579 (8th Cir. 2003).
In determining whether Va Lerie voluntarily consented to a search of his luggage, we must consider the totality of the circumstances surrounding the alleged consent, paying particular attention to the following factors:
personal characteristics of the defendant, such as age, education, intelligence, sobriety, and experience with the law; and features of the context in which the consent was given, such as the length of detention or questioning, the substance of any discussion between the defendant and police preceding the consent, whether the defendant was free to leave or was subject to restraint, and 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). After listening to the testimony of Investigator Eberle and Va Lerie, as well as viewing their actual testimony to make credibility determinations, the magistrate judge found Va Lerie voluntarily consented to the search of his luggage. Without the benefit of viewing Investigator Eberle and Va Lerie as they testified, the district court conducted a de novo review of the record. After reviewing the record, the district court rejected the magistrate judge‘s recommended finding that Va Lerie voluntarily consented to the search of his luggage.
Based on our review of the record and the district court‘s findings, we conclude the district court erred in rejecting the magistrate judge‘s recommended finding that Va Lerie voluntarily consented to the search of his luggage. The following factual findings strongly support a finding Va Lerie voluntarily consented to the search: (1) Va Lerie is 37 years old, has three years of college education, and enjoys normal intelligence; (2) Va Lerie voluntarily responded to Investigator Eberle‘s page; (3) Investigator Eberle displayed his badge, explained he was a narcotics officer, informed Va Lerie he was not in trouble or under arrest, and asked Va Lerie to follow him to the rear baggage terminal; (4) Va Lerie acquiesced in Investigator Eberle‘s request to accompany him to a room with two open doors in the rear baggage terminal where one or two other officers were waiting with Va Lerie‘s luggage; (5) Investigator Eberle asked Va Lerie for consent to search his luggage; (6) Va Lerie verbally consented to the search, according to Investigator Eberle; (7) Va Lerie understood Investigatоr Eberle‘s questions; (8) Va Lerie was sober and not impaired; (9) Va Lerie‘s “own testimony indicates that he did not object to the search“; (10) Investigator Eberle was not in uniform and did not display his
The only findings the district court mentioned to support its no-consent decision were (1) the district court‘s statement “there is no reason to believe [Va Lerie] or anyone else-even most lawyers-would know that they could refuse the request to search the bag“; (2) the officers did not give Va Lerie any Miranda warnings; (3) Va Lerie “was alone, in a private room, with at least two armed police officers“; and (4) the officers already had Va Lerie‘s luggage when they asked for consent to search it.
Given the numerous facts supporting a finding of voluntary consent, we reject the district court‘s finding that Va Lerie did not voluntarily consent to the search of his luggage. First, the district court surmised anyone, including attorneys, would not have known they had the right to refuse to consent to the search of the luggage, and noted the officers failed to give Va Lerie any Miranda warnings. The Supreme “Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.” United States v. Drayton, 536 U.S. 194, 206, 122 S. Ct. 2105, 153 L. Ed. 2d 242 (2002). Although Investigator Eberle did not specifically warn Va Lerie of the pitfalls of consenting to a search of his luggage containing five vacuum-sealed packages of cocaine, Investigator Eberle did seek permission to search the luggage, which implied Va Lerie could refuse permission and, therefore, supports a finding of voluntary consent. See id. at 207, 122 S. Ct. 2105. We also recognize the record does not suggest Va Lerie did not know he had the right to refuse to search; instead, the record reflects Va Lerie expressly consented to the search and never objected to the search.11
Second, we are not persuaded that two or three officers being armed with holstered firearms in a private room inside a bus terminal negates Va Lerie‘s consent. Id. at 205, 122 S. Ct. 2105 (“That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon.“). Taken in context with the totality of the circumstances, these findings do not overcome the district court‘s other findings, both explicit and implicit, that “[t]here was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.” Id. at 204, 122 S. Ct. 2105.
Finally, we give little weight in this case to the officers’ presenting Va Lerie‘s checked luggage to him when requesting permission to search, because this evidence does not transform the consensual encounter between the NSP and a bus passenger into a coercive encounter. Given our holding that the NSP was not constitutionally forbidden to remove the checked luggage from the bus to present the luggage to Va Lerie to seek consent to
Accordingly, we reverse the district court‘s erroneous consent determination, because Va Lerie‘s consent to search his luggage was voluntary.
III. CONCLUSION
For the foregoing reasons, we reverse the district court‘s decision granting Va Lerie‘s motion to suppress, vacate the court‘s suppression order, and remand for further proceedings consistent with this opinion.
WOLLMAN, Circuit Judge, concurring.
With the exception of footnotes 8, 9, and 11, which I view as unnecessary to the resolution of the issues before us, I concur in the court‘s opinion.
COLLOTON, Circuit Judge, with whom McMILLIAN, MORRIS SHEPPARD ARNOLD, BYE and SMITH, Circuit Judges, join, dissenting.
I believe the court‘s holding conflicts with the Supreme Court‘s decision in United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). I therefore respectfully dissent.
The question presented in this appeal is whether Nebraska State Police investigators effeсted a “seizure” of Keith Va Lerie‘s luggage, within the meaning of the Fourth Amendment, when they took physical possession of his garment bag and carried it from the Greyhound bus on which Va Lerie was traveling to a room in the bus terminal, for the purpose of summoning Va Lerie and seeking his consent to search the bag as part of their investigation of suspected drug trafficking. Although the magistrate judge recommended denying Va Lerie‘s motion to suppress on the ground that investigators had “reasonable suspicion” to seize the bag, the government has abandoned that argument on appeal, and does not otherwise argue that a seizure of the luggage was “reasonable.” See Brief of Appellant at 5 (“[T]he United States does not advance the proposition that there was reasonable suspicion to remove the garment bag from the area where the bus was being refueled to the office in the bus terminal itself. Rather, the United States argues that that activity does not constitute a seizure for constitutional purposes.“) (emphasis in original); cf. United States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970). Nor does the government contend that Va Lerie‘s alleged consent to search the luggage was an independent act of free will that purged the taint of any unconstitutional seizure. See United States v. Va Lerie, 385 F.3d 1141, 1149-50 (8th Cir. 2004); id. at 1150 (Melloy, J., concurring) (“The government made the tactical decision to challenge the district court decision solely on the grounds that the district court was wrong in its ruling that a seizure occurred.“). The critical question before us, therefore, is whether the luggage was “seized,” and Jacobsen dictates that the answer is yes.
Jacobsen involved a Federal Express package en route to the residence of Bradley and Donna Jacobsen in Apple Valley, Minnesota. See United States v. Jacobsen, 683 F.2d 296, 297-98 (8th Cir. 1982). The package was damaged by a forklift at the Minneapolis-St. Paul airport Federal Express office, prompting Federal Express employees to examine the contents. When they discovered a white powder inside the package, Federal Express personnel notified the Drug Enforcement Administra
In discussing whether the DEA agents made an initial “seizure” of the package before conducting the field test, the Court first made the general statement that “[a] ‘seizure’ of property occurs when there is some meaningful interference with an individual‘s possessory interests in that property.” Id. at 113, 104 S. Ct. 1652. In applying that standard to the facts of Jacobsen, the Court concluded that “the agents’ assertion of dominion and control over the package and its contents did constitute a ‘seizure.‘” Id. at 120, 104 S. Ct. 1652. The Court explained that although the Jacobsens “entrusted possession of the items to Federal Express, the decision by governmental authorities to exert dominion and control over the package for their own purposes clearly constituted a ‘seizure,’ though not necessarily an unreasonable one.” Id. at 120 n. 18, 104 S. Ct. 1652. This holding is consistent with the Court‘s later observation that “[f]rom the time of the founding to the present, the word ‘seizure’ has meant a ‘taking possession,’ ” and that “[f]or most purposes at common law, the word connoted ... bringing [an object] within physical control.” California v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (internal citations omitted).
There is no viable distinction between this case and Jacobsen on the question whether governmental authorities effected a seizure. Although Va Lerie entrusted possession of his luggage to Greyhound, NSP investigators exerted dominion and control over the luggage for their own purposes. That is, they identified the luggage for investigation, took physical possession and control of the garment bag at the bus, and moved it to a non-public room in the bus station, where three or four investigators were present. United States v. Va Lerie, No. 8:03CR23, 2003 WL 21956437, at *1, 4 (D.Neb. Aug. 14, 2003); United States v. Valerie, 2003 WL 21953948, at *1 (D.Neb. June 10, 2003) (report and recommendation). They did so for the purpose of furthering their law enforcement investigation of potential drug trafficking by summoning Va Lerie and seeking his consent to search the luggage. Valerie, 2003 WL 21956437, at *1. According to Jacobsen, therefore, this action by the NSP investigators constituted a seizure. 466 U.S. at 120 n. 18, 104 S. Ct. 1652.
Jacobsen cannot be distinguished on the grоund that the DEA agents destroyed a quantity of the white powder in the Federal Express package by conducting a field test. Cf. ante, at 13 (citing Jacobsen, 466 U.S. at 124-25, 104 S. Ct. 1652, for the proposition that “the field test did affect respondents’ possessory interests“). The Court was clear that an “initial ‘seizure’ ” involving a “temporary deprivation of possessory interests,” 466 U.S. at 124-25, 104 S. Ct. 1652, took place when agents made “the decision ... to exert dominion and control over the package for their own purposes,” id. at 120 n. 18, 104 S. Ct. 1652, not when an agent destroyed some of the powder. The Court separately analyzed the significance of the field test, concluding that it reasonably “converted what had been only a temporary deprivation of possessory interests into a permanent one.” Id. at 124-25, 104 S. Ct. 1652. Nor did the occurrence of the initial seizure in Jacobsen depend on the fact that agents intended “to search the package.” Cf. ante, at 22 n. 9. Jacobsen did not involve a Fourth Amendment “search” at all, 466 U.S. at
Under the test applied by the court today, the initial seizure in Jacobsen would not be a seizure. First, the initial seizure of the Federal Express package of course did not delay any travel by the Jacobsens or impact their freedom of movement. Second, there is no reason to believe the “temporary deprivation” occasioned by the “decision ... to exert dominion and control over the package” delayed the delivery of the Jacobsens’ package, and the Court in no way relied on potential delay in announcing its conclusion. In fact, after only a “short time” at the Federal Express office (including further investigation beyond the initial seizure), the package was “rewrapped and Federal Express was directed to deliver the package to the addressee shown on the label.” 683 F.2d at 297; see also 466 U.S. at 111-12, 104 S. Ct. 1652.
And third, if law enforcement‘s physical possession and control of Va Lerie‘s luggage in a room inside the bus terminal without Greyhound personnel present-did not temporarily deprive Greyhound of its custody of the luggage, then neither did the DEA‘s possession of the Federal Express package in Jacobsen deprive the courier of its custody of the package. The majority says the NSP “never deprived Greyhound of its custody” of the garment bag, because “NSP removed Va Lerie‘s checked luggage from the lower luggage compartment to a room inside the terminal at Greyhound‘s request.” Ante, at 22. By that reasoning, Federal Express surely was not “deprived of custody” when the Jacobsens’ package was “placed on a desk” in the Federal Express office, 466 U.S. at 111, 104 S. Ct. 1652, and examined by a DEA agent, after Federal Express employees “invited the federal agent to their offices for the express purpose of viewing” the contents of the package. Id. at 119, 104 S. Ct. 1652.12 And if the NSP did not exceed Va Lerie‘s “reasonable expectations for how the passenger‘s luggage might be handled,” ante, at 20 n. 7, (despite no apparent evidence that Greyhound itself typically moved checked luggage from the bus to rooms inside the terminal during intermediate stops), then the DEA agents who effected the “initial seizure” of the Jacobsens’ package (prior to the field test) certainly did not exceed reasonable expec-
Although the court asserts that its new test comports with the views of many judges in this circuit, ante, at 21-22, none of our prior holdings dictates the conclusion reached today.13 To be sure, our court has recognized that not every interference with a person‘s property constitutes a “seizure” under the Fourth Amendment, because some interferences are not “meaningful.” E.g., United States v. Gomez, 312 F.3d 920, 923 (8th Cir. 2002). But in arriving at its holding, the court is forced to overrule or distinguish without explanation several decisions-rendered by some of the same judges cited by the majority-recognizing that law enforcement‘s exercise of dominion and control over an object entrusted to a bailee, for the purpose of conducting investigation beyond an observation of the object‘s exterior, does constitute a “seizure” under Jacobsen. See ante, at 9 n. 3.
Most recently, in United States v. Morones, 355 F.3d 1108 (8th Cir. 2004), we held that a deputy‘s removal of a FedEx package from an outbound conveyor belt for the purpose of subjecting the package to a canine sniff was a “meaningful interference” with “possessory interests” under Jacobsen, despite the government‘s assertion that no evidence showed that the brief
detention of the package would have delayed its delivery. Id. at 1111. This holding followed ineluctably from Jacobsen, which even analogized the field test for which the package was detained to a “sniff test” by a trained narcotics dog. 466 U.S. at 123-24, 104 S. Ct. 1652. We previously reached the same conclusion in at least two other cases. United States v. Walker, 324 F.3d 1032, 1036 (8th Cir. 2003) (“It is clear under our precedent that when [the agent] moved the package to a separate room for a canine sniff, the package was seized for Fourth Amendment purposes.“); United States v. Demoss, 279 F.3d 632, 636 (8th Cir. 2002) (“As Meyer moved the package away from the conveyor belt and detained the package for a canine sniff, he ‘exert[ed] dominion and control over the package,’ that is, the package was seized for Fourth Amendment purposes.“) (citing Jacobsen, 466 U.S. at 121 n. 18, 104 S. Ct. 1652); see also Gomez, 312 F.3d at 923 n. 2; United States v. Fuller, 374 F.3d 617, 621 (8th Cir. 2004).
The three-judge panel that first heard this case acknowledged that Va Lerie‘s case is indistinguishable from Morones, Walker, and Demoss. Va Lerie, 385 F.3d at 1147-48; id. at 1150 (Melloy, J., concurring); see also id. at 1151-52 (Riley, J., dissenting) (declining to follow Morones, Walker, and Demoss). The court today suggests no distinction. These precedents represent a faithful application of Jacobsen, and we should follow them here.14
UNITED STATES of America, Appellee, v. Carlos MONTENEGRO-RECINOS, Appellant.
No. 04-2236.
United States Court of Appeals, Eighth Circuit.
Oct. 4, 2005.
Submitted: Feb. 15, 2005.
port for the conclusion that there was no seizure of Va Lerie‘s luggage under the rule of Jacobsen. None of the cited opinions even discussed the Supreme Court‘s analysis of the initial seizure in Jacobsen. In the Ninth Circuit decisions, moreover, the private airlines-unlike Greyhound here-did not give up possession and control of the passenger‘s property until after a dog had indicated the presence of narcotics or the passenger had consented to a search. United States v. Johnson, 990 F.2d 1129, 1130-31 (9th Cir. 1993) (explaining that an airline representative was present with officers at all times, and that the airline refused to relinquish custody of luggage to DEA); United States v. Brown, 884 F.2d 1309, 1310 (9th Cir. 1989) (explaining that agents “arranged to have Brown‘s [checked] luggage held” until he granted consent). And the Seventh Circuit in United States v. Ward, 144 F.3d 1024 (7th Cir. 1998), held only that an agent did not “seize” a bag “merely by touching it and then removing it from the luggage compartment” of a bus, and that a seizure did occur when the agent‘s decision to hold the bag for canine inspection interrupted the bag‘s transport. Id. at 1033. The court rendered no decision on a situation like Va Lerie‘s, where agents took possession and control of luggage for the purpose of seeking consent to search, or a case like Morones, where agents exerted dominion and control over a package in order to conduct a canine sniff, without delaying the transport of the package.