United States v. Yong Hyon Kim

UNITED STATES of America v.

Yong Hyon KIM, Appellant.

No. 93-1726. Appeals,

United States Court of

Third Circuit.

Argued Feb. 1994.

Decided June 503(b)(3)(D) (b)(4) §§ some circumstances under tobe limit reimbursement of a creditor (b)(4), perceive no rational basis for an en- legal accounting expenses to an amount post-petition hancement of fees measured determined the court to be reasonable after pre-petition amount of fees incurred. Without considering designated the factors therein. explanation the benefit of some further (b)(4) pay- do not read subsection to authorize a bankruptcy thinking, passing court's obser- ment to a creditor in excess of the amount he or appears arbitrary vation far too to be sustainable. required pay she was for those services. Finally, purpose we understand the of subsection & Rogers (argued), Carroll Carroll

John PA, Carroll, appellant. Philadelphia, Totko, Atty., L. Barbara J. U.S. Michael Atty., Philadel- (argued), Miller Asst. PA, appellee. phia, BECKER, HUTCHINSON Before: COWEN, Judges. Circuit Small, THE together OPINION OF COURT with other law enforcement officials, was prior involved in several investi- COWEN, Judge. Circuit gations and searches on the train an effort (“Kim”) Hyon Kim Yong appeals from the drugs. interdict judgment of conviction and sentence entered During stop 26, a August train on July on 199B the United Dis- States Small, accompanied by Sam Candelaria trict Court for the Eastern of Penn- District (“Candelaria”), police a local officer on the sylvania. Kim was convicted in the district force, DEA task went to roomette number possessing court of with the intent to distrib- 12, occupied by Kim and Youn. A roomette kilograms methamphetamine ute six of in in sleeper a car costs more than a coach seat 841(a)(1) § of 21 violation U.S.C. and sen- and affords privacy somewhat more than oth- imprisonment tenced to a term of of 300 er 12, however, accommodations. Roomette Kim months. contends that district was busy located in a area of the train. It denying court erred in suppress his motion to was ten feet from the entrance to the drugs allegedly evidence seized in violation car, sleeper luggage next to the storage applying Fourth Amendment and in room, and feet from two leading stairwell sentencing two-level enhancement ob- upper to the sleeper floor of the car. justice. appeal struction As this is an Small knocked on the door to Roomette 12 judgment court, from a final of the district opened and Kim the door. Youn was inside jurisdiction § we have under 28 U.S.C. Shortly time, with Kim. before this Small reject arguments and will affirm activated a concealed recorder any to record imposed. the conviction and the sentence conversation that he have with the occu- pants of the roomette. Candelaria was work- I. Small, ing with but sight, having was out of thirty-nine-year-old Kim is a stationed male. around the adult himself corner of the train He born in Korea but Small in polite im- corridor. said subsequently and tone, migrated family conversational you guys with his to the “How are United States do- ing? I’m age department.” with the of seventeen. Prior the occur- slightly Small bent badge rence of show his gave the events that Kim rise seated, and Youn him, who were then against indictment Kim knelt in the had continuous- hallway. At ly that time in Small did not lived the United States for block twelve con- doorway enter the years roomette. He secutive re- and attended South Philadel- hallway mained outside in kneeling phia High School. background This indi- position. cates, deny, and Kim does not that Kim spoke English understood and during well began questions, Small to ask several in- police, his encounter with the is at cluding destination, their point origin, appeal. issue place of Kim readily responded residence. questions. Small asked if he could see August On DEA Special Agent produced their tickets. Youn two tickets (“Small”) Kevin Small observed Earn and his Yong the name of Terry Kim and Park. friend, Song (“Youn”), Youn on Amtrak showing tickets, While Youn Small train stopped Albuquerque when asked how ride had replied, been. Youn normally station. This Amtrak train travels good.” “Real Small handed the tickets back Angeles between Los Chicago. regu- It to Youn and thanked him. Small then in- larly Angeles Los during leaves eastbound quired if they any photo had identification. evening, crosses the deserts of Southern Youn said his name was “Park” and that he during night, California and Arizona picture him, had no identification with while enters New Mexico morning. the following Kim said he had. noon, Shortly after train a sched- makes stop uled in Albuquerque. time, Law enforcement persons At that past several walked officials believed that this route was em- hallway, talking loudly. the train Candela- ployed by drug drugs ria, dealers to Youn, traffick from sight out of to Kim and waved Angeles Los back to piece area. paper eastern at Small to inform him that event, and, to search his consent name Small made reservation

the train to the sealed cans luggage did not extend tickets to see the asked of “Wonz.” denied the luggage. The district court Youn. them back again handed jury subsequently convicted motion. lug- Kim and Youn’s asked about count, acquitted but possession DEA worked for them that he gage. told He appeal, Kim count. conspiracy On him people “problems with DEA had motion of his challenges the denial primarily L.A. drugs out of smuggling trains board methamphetamine. suppress the asked, guys don’t ‘You then East.” He back you?” today, luggage do your II. asked, you “Would no. Small Kim answered for me to search?” voluntarily consent unconstitu- an address whether firstWe time, several At that readily replied, “Sure.” encoun- when Small occurred seizure tional then 12. Small by Roomette persons passed reviewing the decision Kim. In tered it was bag asked if pointed to a leather court, error stan- apply the clear district also of- yes. Youn answered Kim’s. Kim findings. the factual respect with dard Small, but bags his down to move fered 651, Coggins, v. 986 States See wanted to examine that he stated Small Cir.1993). (3d respect to the ulti- With 654 bags at a time. one seizure legal question mate found bag, Small Upon opening the leather occurred, review. Id. plenary we exercise Vegetable “Naturade All-Natural six cans of prohibits unrea Fourth Amendment The factory- to be They appeared Protein.” Const, U.S. and seizures. sonable searches in- factory which lids were cans with sealed inter Supreme has Court IV. The amend. it what it was and asked what tact. Small probable requiring amendment as preted this vegetable replied that it was Kim was for. arrest, e.g., Hayes v. making an cause it was not know what that he did protein and 1643, 814-16, 105 Florida, 811, 470 U.S. present.” it for a “got he because (1985), 1646, reasonable 705 84 L.Ed.2d replied, ‘We got it. Kim Kim asked where making an activity for suspicion criminal if he asked Kim bought in L.A.” Small Ohio, 1, U.S. Terry v. 392 investigative stop, Kim did the cans contained. sure what 1868, 1884-85, 30, 88 S.Ct. answered, “It’s say anything. Youn (1968). the cans opened one of closed.” Small that falls respect police conduct With Kim to him. gave them Kim who asked Supreme investigative stop, the anof short asked, in L.A.” Small guy “The replied, seizure does clear “a Court made no answer. guy?” There was “What police officer simply because occur de- who the can to Candelaria then handed asks a few an individual and approaches drugs. The it contained termined Bostick, 429, U.S. v. 501 questions.” Florida Youn under Kim and agents placed then 2382, 2386, 434, L.Ed.2d 389 115 111 S.Ct. arrest. (1991). officer, by means “Only when discovered that it was Subsequently authority, has in force or show physical Angeles an trips to Los at two made least liberty of a citizen way restrained some drug traffick- attempt engage apparent ‘seizure’ has court] conclude [a 1992, August other July of ing, one in .in (citations quota- and internal Id. occurred.” arrested. during he was of 1992 omitted). encounter is When an marks tion (1) with possessing charged with was then consensual, suspicion is re- no reasonable kilograms of six to distribute the intent quired. U.S.C. of 21 methamphetamine violation with United starting (2) a line of cases 841(a)(1), conspiracy to distribute § 554-58, Mendenhall, 446 U.S. v. U.S.C. States of 21 methamphetamine violation 1877-79, L.Ed.2d 497 made a 100 S.Ct. began, Kim § 846. Before trial (1980), Royer, 460 U.S. v. to Florida drugs uncovered suppress motion 1319, 1321-29, 75 493-508, L.Ed.2d 103 S.Ct. Small, contending Kim was unconstitu- (1983) Michigan (plurality opinion) with tionally during the encounter seized Chesternut, 567, 573, rubric of Bostick. It is therefore our task to 1975, 1979, (1988), whether, L.Ed.2d Su decide under totality preme Court indicated that “a seizure occurs judice, circumstances the case sub a rea- person when a reasonable would believe that sonable would have felt free to decline ” Bostick, he or she is not ‘free to leave.’ requests Small’s or otherwise terminate the Relying S.Ct. at 2386. encounter with him. In our assessment of Bostick, language, questioned who was encounter, we must accord all factors an police “cramped confines” of a appropriate weight rather than treat one travel, bus on which argued he was to that he factor dispositive. and, thus, not free leave seized. The encounter at issue in began this case 430-34, Id. 111 S.Ct. at 2384-86. with a polite knock at the door of Kim’s Supreme Court clarified in Bostick plain clothes, roomette. Small inwas gun language “free to leave” makes visible, was not nor display did he ever police attempt sense when question per- gun. responded When Kim by opening the son who is walking down the street or door, Small commenced the conversation by through airport lobby Royer, inas but not asking politely how Kim and Youn were do- when, for reasons unrelated to the ing and identifying employed himself as by a issue, conduct at the defendant is not to free police department. requested, Small then simply away. 436, walk Id. 501 at 111 U.S. “Can I talk you to for a second?” Without may S.Ct. at 2387. stay Individuals have to equivocation, hesitation or Kim answered, in workplace by their employ- reason of their “Yeah.” The conversation went forward in a contract, 210, Delgado, ment INS v. normal conversational more, tone. Without 218, 1758, 1763, posture of the indicated encounter that it (1984), or remain in a seat in the bus that purely Kim, was however, consensual. ar- Bostick, depart, 434, about to 501 U.S. at gues that several factors made this encounter 111 S.Ct. at 2386. Under these circum- nonconsensual and a seizure violation of stances, the test is whether a reasonable the Fourth Amendment. We will address person would feel disregard “to po- free these arguments turn.1 go business,” lice 434, and about his id. at 2386, 111 ultimately S.Ct. at or a “whether argues that a seizure occurred reasonable feel free to decline because the encounter was in a confined area requests the officers’ or otherwise terminate non-public a setting, and because Small encounter,” 436, 2387, id. at 111 S.Ct. at course, blocked the exit. Of “[w]here the “taking into account all of the circumstances place factor, encounter takes is one but it is surrounding encounter,” id. only Bostick, not the one.” 437, The location of the encounter at the room- inquiry 2387. Our is how the on a train brings ette this case under the location of the encounter contributed to a primarily Kim relies on two cases of Court seizure because the of an encounter location Appeals 1501, for the Circuit. Tenth two Those determinative. Id. at 1503-04. cases involved encounters somewhat similar to Secondly, persuasive any we note that authori at issue in this case where a seizure was ty case, of those cases is further reduced in this found in each balancing a under multi-factor fact-oriented, by inherently reason of the case Bloom, generally test. See United States v. analysis case we must In cases conduct. decided (10th Cir.1992); Ward, F.2d 1447 United States v. Ward, before Appeals Bloom and the Court of (10th Cir.1992). F.2d 1526 authority the D.C. Circuit found no under strikingly seizure exaggerated by these cases is Kim. aIn subse- See, e.g., similar circumstances. United States v. quent facts, case with somewhat similar Tavolacci, 1423, (D.C.Cir. 895 F.2d 1424-26 Appeals itself, Court Tenth Circuit 1990) (encounter at the of a roomette door in a banc, sitting appears to have modified Bloom sleeper); Savage, United States v. 889 F.2d cf. Little, Ward. and v. States (D.C.Cir.1989) (encounter 1116-17 at the (10th Cir.1994) (in banc). 1503-05 held Little investigative door to a roomette became stop an that Bloom and forceful, Ward were overruled to ex- repeated questioning after of Sav per any tent established case, se rule that age). en- being specifi This we need not roomette, counter at a train specific without cally Ward, reject analysis of the in Bloom and advisement the officer that the need defendant which addressed different encounters with questions, not answer constituted an unlawful somewhat different factual scenarios. sleeper from the entrance only ten feet that he was belief person’s

reasonable room, storage car, luggage next to the encounter. terminate to free upper leading to the from a stairwell two feet of the encoun the location believe pass car. Voices sleeper floor of the little to such contribute case would in this ter occasionally be heard on ersby could out, pointed Supreme Court theAs a belief. from Kim’s roomette Directly across tape. re an officer’s decline individual “an door to room. The conductor’s train id., be fearing prosecution,” quest without conductor was open that room more, cooperate, without to “a refusal cause period. time during the relevant room objec level of the minimal furnish does not by in front of Kim’s passed The conductor for a justification needed detention tive passen speak times several roomette does seizure,” location itself id. The hallway. Kim could see gers ability to termi of his an deprive individual Close passengers. conductor encounter; reject invita can an he nate large hallway was a on the same roomette public well in a as private, to talk tion people. by four or five family occupied room Little, 1502-03. 18 F.3d at also See place.2 room watched Passengers inside that Finally, door to the encounter. heard area a confined we believe Nor do door, sliding was a Kim’s roomette have inherently coercive. Courts train if he wanted easily closed Kim could argument that “the rejected long ago the conversation. terminate of a com- confinement train narrowness isolationist, inherently hence are partment facts notwithstand argues that these Brady, 842 F.2d v. States coercive.” United free person would not feel ing, reasonable (D.C.Cir.1988). See also n. 5 questions or to answer Small’s decline n. Hoffman, 964 F.2d United States door, doesn’t take “[i]t the because shut (D.C.Cir.1992) alone (cramped conditions 3 to person intelligence for reasonable a much police otherwise invalidate the lawful not do of in the face shutting door that the believe 1424-26; Tavolacci, conduct); F.2d at 895 more to invite intruder would be an such 1116-17. Savage, 889 F.2d at Appellant Reply Brief intrusion.” serious Supreme disagree. the Court 2. As at We Moreover, found the district court stated, may decline officer’s “an individual doorway in fact block the did not that fearing prosecution.” Bos request without court’s argues that the district Kim exit. or 437, tick, at 2387. We at 111 S.Ct. 501 U.S. have re clearly erroneous. We finding is case, a of this the facts that under hold it is conclude the record and viewed felt to have free person would reasonable he he was knew Small testified not.3 his conversa speak or to to terminate decline enough room for some “supposed [leave] See id. Agent tion with Small. [him],” not by and that he “was pass one testi App. at 91. This blocking the door.” higher had a Moreover, argues he next the

mony was uncontradicted. Kim he was travel privacy because expectation of during the entire open encounter. door compartment area, private sleeping ing in a in a well-trafficked roomette was The doorway, that door” or in the side of the the loca- district court found We note that the 2. true, not public place. testimony, as did contra- a Kim even if taken tion of the encounter doorway. private place. We believe argues a that it Kim not block the fact that did dict bustling roomette and of the location Leaning a door is not the same the side of paragraphs two hallway, in the next as described say that doorway. did not blocking court's opinion, that the district in this indicate or leaned inside crossed threshold clearly do not finding erroneous. We was not (Small at 964 did See Dissent Roomette. private definitively public decide the or need had compartment."). Even if Kim "into the lean however, case, in this nature of the location doorway, we that Small blocked said of location because the characterization finding uphold of the district still disposi- private is public ás or the encounter position to evaluate who is in a better court encounter is consensual. tive as whether may have made testimony witnesses and credibility of wit- based on the its decision contrary disagree conclu- the dissent's We with "on nesses. that Small leaned While testified sion.

953 person a reasonable would see his Secondly, room what a guilty passenger would haven, as a safe feel and ette different from the how he public would react are irrelevant to analysis our coach areas of a recognize train. While we because “the person’ ‘reasonable presupposes test an innocent person.” the differences between a roomette in a Bos tick, 438, 501 U.S. at sleeper area, car and a S.Ct. at 2388. seat the coach do not believe an innocent do not would feel expectation believe that Kim’s pri compelled cooperate police by with vacy any overriding has some importance in our potentially, incriminating questions. In any analysis as to whether a seizure occurred. event, potentially incriminating questions are Expectation privacy significant is permissible. As the Supreme Court stated analysis of prohable consent came in Bostick: search, see, required making is a e.g., Ex The dissent reserves strongest its criti- Jackson, 727, parte U.S. L.Ed. 877 proposition cism for the (1878); officers States, 347, Katz v. United 389 U.S. approach can individuals as to whom 507,19 (1967). 88 S.Ct. L.Ed.2d 576 It sheds have no suspicion reasonable and ask them light no on what is consent or a consensual potentially incriminating questions. But concerned, encounter. As far as consent is this proposition by novel; no means one consent to an encounter in the has been endorsed Court num- privacy of his own home or in a public Terry, ber times. Royer, [Florida v.] Katz, square. 351, See 88 S.Ct. Rodriguez [469 U.S. 105 S.Ct. (“What person at 511 knowingly exposes to (1983)], L.Ed.2d 308 Delgado just are public, office, even in his own home or examples. few As explained, we have subject of Fourth protec Amendment today’s decision logically follows from tion.”); States, Lewis v. United those decisions breaks no ground. new (1966) (defen Unless the dissent overruling advocates right dant waived his to privacy in his home long, unbroken line of decisions dating inside). inviting an agent undercover back years, more than 20 its criticism is high expectation alone, privacy, will not not well taken. destroy the otherwise consensual nature of Little, (“The Id. See also 18 F.3d at 1506 Little, the encounter.4 See asking of ‘incriminating questions’ is irrele- (“expectation privacy a limited vant to totality of the circumstances sur- relevance”). encounter.”).5 rounding the Kim that contends Small asked fo We potentially hold that therefore incrimi- potentially cused and incriminating ques nating questions by do not themselves make tions. When questions, asked such ar an ruling, Kim coercive. In encounter so we note gues, “an passenger may innocent that Kim question, cites to well feel one Brief for obligated Appellant by coop demonstrate innocence at and thus the case does not eration,” present Appellant repeated Brief scenario of persis- the and at “a and individual, tent questioning of 'an guilty passenger must feel was and terrorized found to constitute an trapped,” investigative stop id. Kim points to question that Savage, States 889 F.2d Small asked: “You guys don’t have (D.C.Cir.1989). 1117-18 your luggage today, First, you?” do we do question not believe this was accusational. Kim argues next that Small asked his question The tone of way the implied no questions ain “blunt” and “direct” manner that Small accused or believed that Kim had which contributed to the coerciveness of the drugs in possession; his merely was disagree. encounter. We district court The inquiry. found that polite Small’s tone was and con- argument higher 4. Kim's expectation based 5. The cites to dissent several decided in for a cases privacy appears prior (1991) before argu- position to be a restatement of his Bostick contrary language quoted the Bostick encounter, as here. ment based on the location of the Those cases also conflicted with Little. We fol- factor, rejected which we have above. Such a Supreme low the language, Court and not the stated, we is at but most one factor in our bal- cases cited dissent. See at 964- Dissent ancing analysis. right to terminate Kim of to advise transcripts of failure reading the After versational. make the en- did not itself tapes our- the conversation listening to and questions court. unconstitutional. district counter selves, with the agree we cause a reasonable tone would Such number of that extent To the free to he was not that believe present individuals police officers the encounter. terminate any relevance during the encounter has smoothly and spoke Conceding that Small Bloom, believed analysis, as the court our type ques- “the focuses on Kim politely, (two agents versus one F.2d at asked, than their rather agent that the tions Ward, at citizen), and in private at 28-29. Appellant delivery.” Brief alone), (defendant hold that we was 1531-32 themselves questions argues that Kim govern in favor of the militates factor this Kim and Youn message that conveyed the During the entire encoun case. ment carrying drugs. being accused were alone, to be while ter, appeared to Kim as indi- themselves questions read the do not friend Youn accompanied Kim was drug possession. cating accusation police Another with him. present who was argument rests on To the extent that Kim sight to both out of officer asked, it is a recharac- questions types of Youn. that encounter argument of his terization reasons, reject Kim’s foregoing For the “poten- he was asked a seizure because transcript of reading the After contentions. which we incriminating questions,” tially Small, Kim and between the conversation rejected. already tape record- listening of the tone theory on his seizure also bases conversation, the en- we believe ing Kim his to advise failed fact that Small totality of the not coercive. counter requests or ter Agent’s right to decline volun- demonstrates circumstances such advice While the encounter. minate questions, and was Small’s tarily answered na consensual well be evidence during entire encounter.6 cooperative advice, the following the of an encounter ture Furthermore, say the district we cannot necessarily does not such advice absence of finding Agent Small did not court’s of the en nature eliminate consensual during questioning doorway block stated, Supreme Court As counter. therefore conclude clearly erroneous. We “[wjhile respond to will most citizens did was consensual the encounter so, do so people do request, the fact inadmissible tri- tainted fruit not produce not to re being are free told without al. na hardly consensual spond, eliminates Delgado, the response.” ture of III. A reasonable at 1762-63. his encounter with Kim contends that right not to know of his presumed person is his and therefore a seizure was prosecu fear of without questions answer to by that seizure. 436-37, was to search tainted Bostick, 111 consent at 501 U.S. tion. See we con Appellant at 35-37. As clearly rejected Brief at 2387. Courts 5.Ct. during [Fjourth [Ajmend seized that Kim was not clude “attempt Mirandize to naturally encounter, of taint Kim’s contention Kikumu States v. consents.” United ment Still, Cir.1990) to examine (3d appropriate we feel it 1084, (citing fails. ra, 1093 district court erred Bustamonte, 218, whether the separately U.S. 412 Schneckloth voluntarily to consented 2047, finding that Kim 2041, 227, L.Ed.2d 854 36 court’s luggage. The district of Kim’s (1973)). result, search believe that a As polite tone is His makes no threats. "[Small] analyzing several fac- us for 6. dissent faults gun. a does not show He contrary, conversational. we base our and To tors in isolation. like door-to-door salesman voluntary behaves much a He was the encounter conclusion that pros- keep the door and his foot can surrounding encoun- who all of circumstances (or a sale talking he made pect until including and and Kim's manner tone ter Small's business, arrest).” at 961-62 Dissent dissent itself Small's voluntary responses to Small. The n. 1. as follows: typical Small encounter describes 955 lug- 231-34, determination consent to search the his Id. consent. at 93 S.Ct. at 2049- fact, gage finding Schneckloth, is a see 412 227, 2047-48, at at U.S. S.Ct. and Applying principles these to the case sub subject only clearly to erroneous review. judice, we hold that the district court did not

See, Kikumura, e.g., 918 F.2d at 1093. We clearly in finding err that Kim consented to find no clear error in this case. luggage. search of his The tape record- ing of the conversation between Small and It is well settled government may that the Kim and transcript of that recording undertake a search without a warrant or spoke indicate Kim English well and an- probable cause if an individual consents to swered questions Small’s without hesitation. search, any and evidence discovered dur Kim had permanent been resident alien ing such a search be seized and admit the United States for years over twelve and Schneckloth, 219, ted trial. at 412 U.S. at high attended in Philadelphia. school (1973). S.Ct. at 2043-44 Our task is de important, Most when Small asked if Kim cide whether Kim to the search consented voluntarily consent to a search of his luggage. his luggage, readily responded, “Sure.” Supreme instructed, As the Court “[w]hen App. During at 34. the entire short conver- prosecutor rely upon seeks to consent to sation, cooperative. Kim was readily He justify search, the lawfulness aof he has the confirmed to identity Small the lug- of his proving was, burden of that the consent gage. Kim’s demeanor was no doubt a fact, freely voluntarily given.” Schneck strong indication of voluntariness. Even his loth, 222, (inter S.Ct. at companion travel Song Youn testified that omitted). quotation nal marks citations Kim was not at all reluctant permit “[WJhether consent a search was fact to search his luggage, and readily that Kim product or was the or duress ‘voluntar/ consented to the search. App. at 304. coercion, express implied, or question is a of Moreover, the short, whole encounter was fact be totality determined from the of all lasting only several minutes. There was no 227, the circumstances.” Id. at S.Ct. threat of against force Kim. Small was the 2047-48. Thus given consent was only officer visible to Kim and Youn. Nor by examining resolved be all relevant fac atmosphere was the coercive. Small was tors, giving without dispositive effect to polite and his tone was courteous and conver- single criterion. Certain factors that courts sational. repeated There was no pro- determining consider in whether confessions longed questioning. Nor did Small ask Kim voluntary, were such age as the ac direct, probing, incriminating questions. cused, education, intelligence, his whether During period, the entire Small mentioned he advised of constitutional rights, only that he looking illegal drugs. questioning whether the repeated That was probing not a or incriminating prolonged, id. at 93 S.Ct. at question; it was meant inform Kim are relevant to our examination. See United scope mission and Small’s of his search Velasquez, States v. 1081-83 so as not any event, to mislead Kim. In such (3d Cir.1989), denied, cert. 1017, 110 questioning dispositive alone is not under a (1990). totality analysis. of circumstances It certain- ly outweigh does not overwhelming evi- giving While not an exhaustive list of rele- dence analyzed of voluntariness as above. factors, vant Supreme the Court in Schneck- Nor do significant believe it that Kim was “[wjhile loth teach that knowledge did consent, not right advised of his to refuse right to refuse consent is one factor to be particularly in strong the face of evidence of account, taken into government the not need Schneckloth, voluntariness. See 412 U.S. at such knowledge establish qua as the sine 227-33, Kikumura, 2048-50; 93 S.Ct. at 918 Schneckloth, non of an effective consent.” at at at U.S. 2048. Nor S.Ct. is the government required reasons, to advise the defendant For foregoing the we conclude right to his refuse eliciting consent before that the court in finding district was correct Youn were Kim and methamphetamine. to the search voluntarily consented Kim

that then arrested. luggage. his person a reasonable that conclude We IV. for Kim’s authorization understand to his consent that contends Kim also to permission to include luggage his search to extend luggage did not of his search luggage. his inside any items found search within containers the sealed search of understanding. supports this sense Common drugs and therefore bags, of his one illegal looking for that he was indicated Small are inadmissible. containers in those found luggage. target was his search drugs, and reject argument. We to search permission for Small his gave Kim as those drugs. such luggage for Cans his search is an official “[w]hen It is clear that by a may thought luggage be by consent or found authorized —whether properly drugs. Thus to contain person scope reasonable valid warrant —the of a by the issuance luggage covered permission to search of its by the terms limited is of the search luggage. States, in that found 447 the cans v. United Walter authorization.” 2395, 2401, 65 100 S.Ct. U.S. in Jime Supreme Court ruling of the mea- (1980). for “The standard L.Ed.2d 1803-04, 249-52, no, under suspect’s consent scope suring the us, lends the one before analogous to a case ‘objective’ that of Fourth Amendment Jimeno, conclusion. to our support typical rea- would the reasonableness —what objectively that “it was held Supreme Court by the ex- have understood sonable that the conclude for the to reasonable suspect?” and the the officer change between car respondent’s to search general consent 248, 251, Jimeno, Florida v. within containers to search included consent (1991). 1803-04, L.Ed.2d 297 S.Ct. drugs. A reason might bear car which that inquiry is judice, the case sub Applied to the that expected to know be able person have un- person would a reasonable whether in some form generally are carried narcotics exchange between Small derstood 251, 111 U.S. at Id. 500 of a container.” to Kim’s authorization indicating that Kim as at 1804. per- drugs included luggage his search from distinguish this case attempts to Kim in- placed the sealed cans mission search the search was by pointing out that Jimeno luggage. his side compartment on sleeping around a conducted exchange be- therefore examine We Jimeno, in a car as than a train rather awhat Kim to determine tween Small were contained drugs in this case that the person would understand reasonable simply bag than cans rather sealed starting to be. Before scope of the consent that these conclude Jimeno. folded search, and his informed Kim Small un- principle do defeat distinctions for DEA he worked Song friend Youn one ruling that when derlying the Jimeno illegal drugs, and asked looking for and was permission search general gives Af- luggage. in their any drugs if had area, permission extends in a confined him, you volun- “Would asked ter Small a reasonable within area items App. at 34. to search?” tarily for me consent drugs. believe contain person would then iden- Id. Kim responded, “Sure.” the en- place where that the open- We believe Upon bags for Small. one of his tified significant because place took cans. counter bag, discovered some ing the Small Kim, as we operate coerce it did cans and what asked what above, permis- give general analyzed vegetable protein. it was for. Kim said Moreover, the luggage. sion to search that the was sure asked in this cans between sealed Kim said distinction vegetable protein. cans contained does not bags folded in Jimeno closed,” said, and re- case and “It’s nothing. Youn they both result because a different to mandate proceeded at 35. Small peated App. it. believe person would what a reasonable subse- are Agent Candelaria open the can repeat To drug containers. could function contained that the cans quently determined Court, language Supreme particular container, of the “a rea- ato Fourth Amend- person expected be provides sonable know that grounds ment no requiring for generally narcotics are form Jimeno, explicit carried some more authorization.” of a container.” Id. S.Ct. at 1804. Supreme note that the Court indicated already We have concluded above that very likely unreasonable think “[i]t Kim’s consent to search luggage his for suspect, by consenting that a to the search drugs extended to the cans in the luggage. trunk, agreed breaking open his of Of course Kim could have limited his consent a locked briefcase within the trunk.” Id. items, to certain but he had the burden to However, cans such as those found in the limitation, id., express which he did not judice ease sub are similar to locked readily do. Kim gave general consent to reject briefcases. argu We therefore search, without hesitation or limitation. ment on. language based of the above Even Youn subsequently testified that Kim Supreme addressing Court a different mat was not at all permit reluctant to Small to from United States v. support ter. We draw bags. App. search his at 304. (D.C.Cir. Springs, 1334-35 1991),where the court upheld said, closed,” the search of a The fact that Youn App. “It’s sealed baby powder help container. The court does not Kim. empha- It is worth rejected argument Youn, there an sizing Kim, almost identical said those words. Kim, to Kim’s: gave general who authorization to readily search luggage his own identified supports the evidence a view that Small, Therefore, said nothing. it was opening baby powder container did reasonable for Kim, Small to conclude that depend upon possession key, of a who bore the burden to permis- limit his own knowledge combination, anything of a sion, attempt did not impose any limita- merely other than removing its lid. Nei- general tions on his permission. all, After ther did the opening fact of its render it Youn, who guardian, was not Kim’s useless, anymore opening than the by not be considered person a reasonable destroyed folds paper the usefulness of the legally be able to limit Kim’s consent. bag in Jimeno. Id. at 1334-35. The same scenario occurred important, More Youn’s words would not in this case and reasoning we follow the be understood a reasonable aas Springs. limitation on Kim’s consent because Youn Finally, Kim contends that after Small ob- spoke those words not in attempt to limit general tained permission search, to search Kim’s response but rather in to Small’s luggage, he specif- should question, have also asked for ‘You’re sure that’s what’s inside permission and, ic to search bag each one of these?” Id. Youn’s answer was an- more importantly, for permission to open the cans way saying, other “I don’t know because it when Small lug- discovered them in Kim’s Accordingly, closed.” Kim did not limit his gage.7 argument Such an explicit general more consent any specific search to specific rejected authorization has reasons, been foregoing items. For the we hold Supreme Jimeno. Court that it was reasonable for Small to conclude Court suspect’s stated that if a consent that Kim’s consent to search extended to the reasonably “would be understood to extend cans found in luggage. Upon opening bag, Coffee, bought Small discovered some KIM: We it in and these. L.A. following colloquy cans. The ensued: Okay. SMALL: You’re what's in- sure that's SMALL: What is this stuff? side one of these? Vegetable protein. KIM: YOUN: It's closed. you SMALL: What do use it for? SMALL: Huh? got KIM: I don't know. it for— I YOUN: It's closed. YOUN: For health. SMALL: It's closed? present. KIM: —a App. at 34-35. prisent? present! gave SMALL: A A Who you, you know?

958 the district findings of the review factual V. id., error, the “where clear court for that district Finally, argues Kim the ques- a mixed finding involves court’s district adjusting sen upwardly court erred scope fact, standard our tion of law enhancement by applying two-level tence scrutiny, ap- greater takes of review pursuant to justice, of for obstruction issue moves as the de novo review proaching provision mandates 3C1.1. That § U.S.S.G. strictly of strictly fact to one one from defendant the “[i]f enhancement a two-level omitted). (internal marks quotation Id. law.” attempted impeded, or or willfully obstructed the administration impede, or ques to obstruct address the threshold firstWe prosecution, investigation, during the justice the district facts that the tion of whether offense.” sentencing the instant adjust or upward upon apply to the court relied to provision applies This § 3C1.1. U.S.S.G. offense” within to the “instant related ment during a defendant’s made false statements The lan meaning of the Guidelines. the authorities. law enforcement cooperation with that “instant guideline indicates guage of the Banks, 964 F.2d v. See, States e.g., United offense of particular the refers to offense” — denied, (7th Cir.), “Any cert. of. 693 was convicted the defendant which (1992). 377 -, § 121 L.Ed.2d that 3C1.1 refers other than interpretation prosecution to obstruct to efforts court to the district led The facts only this mo render offense would conviction adjustment es- upward two level make the v. Perdo meaningless.” United States difier during his conduct sentially to Kim’s related (2d Cir.1991), quoted mo, Shortly government. cooperation with Accord, e.g., Belletiere, F.2d at 967. arrested, coop- Kim decided to he after was 1327, 1333 Barry, F.2d v. States United concealing his Deliberately DEA. erate with Furthermore, (D.C.Cir.1991). the Sentenc 1992, Kim July Angeles trip to Los first sup interpretation own ing Commission’s trip August 1992 agents that told guideline. As reading of the ports this only was his during he was arrested out, commentary section to pointed “[t]he further informed Angeles. He trip to Los section’s focus makes it clear 3C1.1 to had been agents that he asked DEA to intended or statements on willful acts gift, Philadelphia to bring cans back government’s investi impede the or obstruct him supposed to meet was someone Belletiere, at issue.” gation of the offense up at his pick them or station to train in order for Accordingly, F.2d at DEA deliver to to offered assist house. He upward apply a two-level district court recipi- methamphetamine the intended Kim’s obstruc adjustment, showing the facts agents at- DEA Philadelphia. The ent possessing the offense of must relate tion delivery controlléd stage tempted to distrib the intent methamphetamine with original No train. back placing Kim convicted, or its investi ute, was of which he Kim. The evidence up to meet one showed sentencing. prosecution, gation, already by that Kim had time revealed that to inform them employer’s home called facts that ar Kim contends DEA. cooperation with and his his arrest justice at obstruction guably constituted facts, there claims that on these Based conspiracy count only to the pertained most Fur- obstruction. of willful is no evidence than acquitted, rather of which he was if thermore, argues, even there argument is count. His possession obstruction, to the “instant it did not relate complete Albuquer offense was possession methamphetamine offense,” possession of took the government “[t]he que because distribute, he was of which with the intent Brief possession ended.” drugs and Kim’s conspira- convicted, solely related but coop false allegedly 48. His Appellant at acquitted. he was cy charge of which useful government was eration with the parties, argu so the third certain dis- to catch over the plenary review We exercise solely in the goes, and included application ment interpretation trict court’s acquit he conspiracy of which charged Sentencing Guidelines. States Cir.1992). (3d Belletiere, ted. disagree. recipient While is clear that Kim’s of methamphetamine. the Of cooperation conspiracy course, false related to the government’s this obstructed the in- charge, necessarily that fact alone does not vestigation of the intent element: no one that his conduct demonstrate could not also actually up showed to receive the metham- possession Viewing relate to the count. the phetamine from Kim. Accordingly, the facts whole, indictment the facts as a we con- upon which the district court based the two- cooperation clude that Kim’s false related to level enhancement intimately were related to possession charge Kim was con- investigation prosecution of two ele- possession may victed. The offense well possession ments of the offense and there- stopped government when the took the fore related to the “instant offense” within “investigation, from Kim. But meaning § of U.S.S.G. 3C1.1. prosecution, sentencing” or of that offense We next address the issue of whether stop point. at that did there is evidence of willful obstruction. The possession The offense of which Kim was language §of plainly requires 3C1.1 charged and convicted has three elements: upward adjustment be on based willful (1) possession Kim’s kilograms of six of the justice. obstruction of in- Willful obstruction (2) methamphetamine; knowledge his cludes' “providing materially false state- possessed the substance he was a controlled ment a law enforcement signif- officer that substance; (3) to distribute the intent icantly obstructed or impeded the official in- controlled substance. See U.S.C. vestigation prosecution or of the instant of- 841(a)(1). § government had the bur- comment, (n. fense.” Id. 3(g)). proving every beyond den of element a rea- carry sonable doubt. In order to that bur- denotes act Willfulness “an which is inten- den, government tional Belletiere, rather must conduct thor- than accidental.” (internal ough investigation every fact that F.2d at 965 quotation related marks omitted). to those government’s three elements. The In applying § the context of 3C1.1 investigation participants sentencing determination, of other the evidence directly upon scheme bore two must show that the “intentionally elements of defendant knowledge attempted the offense: Kim’s justice.” that the sub- obstructed to obstruct government sought stance cans was a controlled Id. Since the upward- substance adjust and his ly sentence, intent to Kim’s distribute. it bore the burden proving by preponderance of the evi- particular, In Kim’s material misstate- that, dence Kim willfully obstructed or at- participants about ments other trip and his tempted justice. to obstruct Id. July to California in of 1992 related to his knowledge methamphetamine in the cans. argues that the court district erred in prove knowledge, order gov- failing to specific finding make a factual prove ernment have needed to how the obstruction, willful which failure warrants a methamphetamine came posses- into Kim’s differently. remand. We read the record and, thus, sion needed accurate information During sentencing hearing, the district regarding preceding the events the encoun- specifically court stated that the court im- ter in front of August the train roomette on posed the sentence Kim for his serious 26, 1992. The evidence shows that Kim de- criminal conduct and “subsequent mis- liberately provided false and inaccurate infor- leading of investigation by the Government’s respect with mation to his contact and his telling, appearing help truth or Angeles July to Los trip of 1992. he, fact, them when doing [sic] was not prove element,

To the intent to App. distribute language this.” at 612. This indicates government may identify have needed to that the district court found that Kim inten- waiting who was methamphetamine. tionally government misled order deliberately called the home of his em- investigation. thwart Bead in the con- (also ployer Kenneth Lee Kwang known as sentencing hearing, coupled text Yi), warning Suk him cooperation of his with cooperation with evidence of Kim’s false government, tipping record, thus off the intended misstatements the district Lee’s child, informed Kim called Lee and than more constituted statement court’s DEA, cooperating with justice. he was wife that obstruction

finding of willful tip off the intended knowing that this would no argues that there was Kim next testimony, Kim subsequent In his recipient. finding of the district support the to evidence disclosure, “ev- of this that because conceded court The district disagree. We court. App. at the situation. erybody” knew about misleading the finding Kim’s its made after review investigation only government’s hearing report and ing pre-sentencing recipient the that agents the the Kim first told App. at parties. See arguments from both home. or his to the train station come gov the reflects The record staying 589-612. at a last minute while But at the false state proved Kim’s deliberate story. ernment changed his agents, he the hotel with The dis agents. government to the ments recipient would con- that the said Then Kim clearly err. certainly did not trict court his beeper, was at through tact him home and asked then called his home. Kim first First, deliberately his concealed Kim him bring his beeper to his brother-in-law the July of 1992 when Angeles trip Los to afterwards, his brother-in- Shortly to use. Kim shipment due. methamphetamine Lee, brought law, accompanied Kenneth trip in order to lying to about admitted told the hotel room. Kim beeper to the investiga- government focus of shift the (when he spoke only Korean agents Lee Kim also App. him. at 382. away from tion to proceeded English) and spoke in fact about the government deliberately misled the agents him in Korean which speak to with who delivered identity the individual Subsequently no one methamphet- not understand. containing the did the cans him above, up cans of metham- up pick false- these showed As mentioned amine. impeded the directly phetamine. to and related hoods of the the elements investigation of one of scenario, the district factual From this knowledge of the count: Kim’s possession conclude, entitled, find that court was cans. contained substance controlled govern- intentionally Kim obstructed the find- Second, supports record also recipient investigation of the intended ment’s deliberately court that Kim ing the district related methamphetamine which of the investigation toas government’s misled drug. The to distribute the Kim’s intent recipient of the be the intended who would probably ma- that Kim court found district directly re- methamphetamine which cans pager story timing of his nipulated the element of to distribute to the intent lated to assure hotel in order bring Lee to the charge. contends possession cooper- acting if he Kim was him that Kim willful- evidence that was no direct there Clearly if Kim not. ating, in fact was but investigation. The district ly obstructed beeper, he could simply wanted however, infer court, that it could indicated it to the bring brother-in-law asked his of Kim’s conduct from the course willfulness alone, enlisting help of hotel, without App. at 593. cooperation. during the sham evidence Although was no direct there Lee. and conclude the record reviewed We have Kim, between Lee of the conversation court’s inference the district clearly inference was the district court’s error. clear erroneous. made several reveals that Kim record commentary to are aware agents government misrepresentations “testimony stating § 3C1.1 U.S.S.G. alleged cooperation during the course of light be evaluated should statements to assist government order with the U.S.S.G. to the defendant.” most favorable recipi- catching the intended government comment, 1). (n. Nonetheless, we 3C1.1, § into agents drug. He misled the ent of of conduct of course that the entire conclude in effect- would assist them believing that he cooperation government with the Kim’s false Philadelphia. On delivery in ing controlled finding of district supports the amply find out calling his home to pretext context, in mind we must bear court. given to their had birth his wife government’s prove that the burden is not to VI. doubt, position beyond its a reasonable but reasons, foregoing For the we will affirm only by preponderance of the evidence. respects in all judgment of conviction and

Belletiere, 971 F.2d at 965. sentence entered the district court. finally contends that he called Lee not tip recipient, BECKER, off the pay intended but to Circuit Judge, dissenting. courtesy call,” telephone “the of a Brief for appeal presents This two discrete Fourth Appellant employer. to his He asserts Amendment They but, issues. are both close this was “within the norm for a defendant respect, with all I believe majority that the just who has been arrested and has made an gotten First, them wrong. both I believe important government,” decision to assist the that the facts taken as a whole show that a argument, id. With this Kim attempts to person reasonable in posi- defendant Kim’s explain away impede his willfulness to tion would not have felt free terminate the investigation. encounter and hence that there was a sei- specifically, zure. More a seizure occurred reject this version of what occurred. Agent because Small confronted Kim in a believed, agree, district court and we non-public part train, of the blocked Kim’s truly that a cooperating defendant would not exit roomette, from the asked Kim focused cooperation. Although may undermine the it questions, and incriminating and never ad- be reasonable for a defendant to inform his vised Kim that right he had a to terminate family employer that he will not be home it, the encounter. As I see at the time Small scheduled, necessary for Kim to asked Kim drugs whether he had in his cooperating disclose that he was with the luggage, Small had seized him. And since government. options. He had several other Small had no suspicion reasonable at the Instead, he employer chose to call his under Kim, time he detained gave the consent Kim pretext calling of inquire his wife to luggage to search involuntary. Sec- about the birth of their child. Had he been ond, I think that even if majority right is forthright calling about employer, that Small had not seized Kim and that Kim’s agents may attempted stop him. consent to luggage the search of his was thus important, More phone disclosed voluntary, Small scope exceeded the of Kim’s cooperating call that he was govern- with the opened consent when he one of the sealed ment, knowing that the information would be Naturade Vegetable All-Natural Protein can- made known to others. must have isters luggage. he found Kim’s I would known that the effect of his call would tobe therefore hold suppress that the motion to tip off the recipient intended of granted should have been and that the con- danger being caught if he came to victions should be overturned. meet Kim. These facts rendered Kim’s ex- planation not credible. The district court did clearly inferring err in willfully that Kim I. THE SEIZURE

impeded investigation. agree I majority with the that the seizure Accordingly, we question conclude that Kim willful- in this case falls under the rule of ly investigation Bostick, obstructed the prosecu- 429, Florida v. 501 U.S. 111 S.Ct. tion of the meaning 2382, instant offense within (1991), which tells us § of U.S.S.G. if, 3C1.1 and that person district that a has been seized under the finding court’s sup- circumstances, willful obstruction totality is of the a “reasonable ported by the record. The district court did would feel free to decline the officers’ applying not err in upward a two-level requests ad- or otherwise terminate the encoun- justment in Kim’s 436-37, sentence for obstruction of ter.” 501 U.S. S.Ct. at 2387.1 justice. A review of surrounding the circumstances 1. The encounter Angeles between Kim and Chicago. Agent Small oc- tween Los sleeper Candelaria) curred in a (along car on an AMTRAKtrain with Officer has become Chief," called the something legend "Southwest among judges travels be- of a the district expectation the same not have Kim, probably does how- between encounter sitting in his her as someone privacy person would ever, a reasonable shows expectation home, passenger’s a roomette the encounter. to terminate free not have felt a coach certainly higher much than privacy is with, occurred the encounter begin To view, expec privacy my passenger’s. setting. The roomette, non-public train an individual to that of quite similar tation is setting a factor non-public nature room, it is well a hotel has rented who that a a conclusion in favor of weighs non-public room is that a hotel settled police conduct because seizure occurred California, v. place. See Stoner to be more coercive. tends non-public areas 889, 893,11 489-90, L.Ed.2d Ward, v. States United See Amendment (1964) full Fourth (according Cir.1992) (10th (stating that “whether Eng Fung Jem guests); hotel protection to public view occurs an encounter (9th States, 803, 805 Cir. question of significant” particularly stay 1960) (“The appellant’s transience occurred). Ber See also a seizure officers searched room [hotel] 420, 438, 104 McCarty, kemer v. constitutional force of dilute the (1984) (ex does L.Ed.2d 317 question The hotel room protection. of an en importance recognizing the pressly there dwelling. That he lived appellant’s place).2 occurring public in a counter consequence.”). days is of no but several setting finding that the court’s The district Moreover, has been extended be- Stoner clearly was, errone- my opinion, in public temporary to cover other yond hotel rooms renting a roomette Although someone ous. events, analyze of this case on the facts we must judges appellate in the and in New Mexico drug at interdiction efforts own. His their

Tenth Circuit. singlehanded have train Albuquerque station jurisprudence about ly spawned an entire Cir- majority opinion Tenth in recent 2. The No fewer than trains. Small, and seizures on searches discussing United States banc case cuit en circuit, including opinions that published in banc), nine Cir.1994) Little, (10th {en 18 F.3d 1499 v. grapple Fourth opinion, with the an en banc non-public assumption a en- that questioned the by his See actions. issues raised Amendment police more coercive conduct counter makes the (10th Moore, Cir. 22 F.3d 241 v. States United setting. public Id. at in a when it occurs than (10th Little, 1994); F.3d v. 18 1499 United States stated, unpersuasively, that & n. 5. It 1504 Cir.1994) ); ( Zapata, 997 States v. banc United en (10th people may feel coerced when many in fact more Hall, Cir.1993); v. United States 751 F.2d may setting public and they are confronted Cir.1992); (10th United States v. 978 F.2d 616 they requests do not police because submit Cir.1992); (10th Bloom, United F.2d 1447 975 spectacle Id. of themselves. to make a want (10th Cir.1992); Ward, 1526 v. 961 F.2d States Scales, (10th Cir. 765 903 F.2d United States majority's Although view on this the Little Miller, F.Supp. 1990); 1485 811 States v. United appear appeal, it does not has question intuitive Armijo, (D.N.M.1993); 781 States v. United Supreme view of the accord with the be in (D.N.M.1991). F.Supp. 1551 Judge Logan pointed out in dissent in As Court. cases, reported Small’s method Based these on Little, explicitly stated Supreme in Court always apparently and operation is distinctive of essentially pub- warnings giving Miranda context Before the "Southwest the same. Little, inherently coercive. settings less are lic during Albuquerque run be- stops its in Chief” dissenting) (quoting (Logan, J. F.3d at 1511 18 Chicago, Angeles he and reviews tween Los 3149). Berkemer, 104 468 S.Ct. travelling looking passengers train manifest Berkemer, Supreme Court said: one-way paid for with sleeping tickets cars stop public, at least to typical [t]he traffic passenger, he a he finds such cash. When Passersby, or in other degree. on foot some cars, door, passenger's roomette stands knocks on interaction officer mo- witness the carefully begins doorway a construct- in the public both exposure to view re- This torist. question quickly inquisition leads ed policemen ability unscrupulous of an duces the voluntarily for me to you consent "Would illegitimate self-incrimi- means elicit to use tone is threats. His He makes search.” no nating the motorists and diminishes statements a does not show polite He conversational. that, cooperate, he will be does not fear if he a sales- gun. much door-to-door He behaves like subjected to abuse. keep door can foot man who prospect at 3149. Until the 104 S.Ct. U.S. at (or, in talking made a sale until he has therefore, otherwise, we Supreme states Court arrest). business, He is an enormous- Small's assumption that encoun- operate under must highly police officer. ly capable and successful settings non-public are with the upheld ters always been But his arrests and, inherently coercive. more challenge at all against Fourth Amendment See, e.g., dwelling places. United States v. lated to those duties of the train crew. The (9th Cir.1993) (tent Gooch, right of access to the hotel room manag- pitched public campground non-public ers housekeepers, for example, does not place protection entitled to same as a hotel transform the hotel room public place. into a room). recognized higher Courts have also Stoner, 489-90, See 376 U.S. at 84 S.Ct. at privacy private expectations living quar (noting although engaging ships. Alfonso, ters on See United States v. gives permission a hotel room maids, jani- (9th Cir.1985) (“The pri repairmen tors or to enter the room in the living quarters ship] vate are at least [of performance duties, of their permission such analogous result, private dwelling. to a As a give police does not license to enter to search search, of a even context border evidence); for incriminating Chapman v. private living quarters ship search of on a States, 610, 616, 365 U.S. require something should more than naked 776, 780, (1961) 5 L.Ed.2d 828 (explaining suspicion.”). suggest These cases that a although authority landlord had actual place sleeping private set aside for carries to enter into a house to “view [a tenant’s] higher expectation privacy with it a much gave permission search, waste” and non-public place. and should be considered police violated a rights tenant’s constitutional Olson, 91, 99, Minnesota v. Of. when searched the tenant’s house since (1990) (“We 1684, 1689, waste). the search was viewing unrelated to are at our most vulnerable when we are I why see no principle reason should not asleep because we cannot monitor our own apply equal with force in the train roomette safety security belongings. or the of our It setting. that, although is for this reason It virtually undisputed also day spend public places, all when we can cramped roomette awas and confined set sleep not in our own home we seek out roomette, ting. The was seven feet private .place sleep, another whether it be wide and less than deep, four feet was similar room, a hotel or the home of a friend. Sock moderately to a sized walk-in closet. The ety expects privacy at least as much in these only access to and from the roomette was places telephone in a temporari booth—‘a through a only door that was two feet wide. ly private place momentary occupants’ whose hallway doorway The outside the was itself expectations of from freedom intrusion are ” only two and a half cramped feet wide. Such recognized (quoting as reasonable.’ Katz v. confines increase the coercive nature of the States, 347, 361, 389 U.S. 88 S.Ct. encounter, máking likely it less that a rea 507, 517, (1967) (Harlan, 19 L.Ed.2d 576 J person sonable would feel free to terminate concurring))); United Eagon, States v. 707 Bostick, 429, it. 501 U.S. at S.Ct. at (9th Cir.1982) (“Those Cf. F.2d living on (“The cramped confines of a bus are one their greater expectation boats have a of relevant factor that should be considered denied, privacy night.”), cert. evaluating passenger’s whether a consent is (1983). I voluntary.”). roomette, believe that a train an enclosed sink, cabin awith bed and a no less a is Making the cramped encounter the temporary dwelling place pitched than a tent space confined even more coercive was the campground, private ship, berth on a fact that Small blocked Kim’s means of or a hotel room. argues, agree, exit. and I that the finding district court’s

Of course a conductor that Small did not can enter the room- doorway clearly block the during ette at different trip. times the But erroneous. may kneeling the fact that a Small claimed that he conductor five to six enter to check or in emergency, during ease of an inches from the door much and that of the tickets (the may an attendant accepted enter to make encounter district court the bed and this up testimony, clean the morning, finding room the next does not he had been five door). expectation privacy lower passenger inches from the For Kim to have respect roomette with by leaving entries terminated the encounter into the purposes totally roomette for unre- required roomette would have him to vault virtually that Small it certain hallway, make doorway into Small, through a two foot

over (re- important periods room for space inside the landing leaned inches of approximately body prevent- thus during episode and Small’s less because of time ally somewhat part being occupied a from shut. considerable the door have ed would it hallway). I think is inconceivable problem majority tries to avoid free to have felt person would a reasonable testimony that he “was stating that Small’s him into the by passing over ignore Small uncontradicted. blocking the door” was during knelt hallway where narrow Both simply incorrect. That assertion Savage, United States encounter. Cf. was lean- testified that Small and Kim Youn (D.C.Cir.1989) (stating F.2d doorway, indeed against the side ing relevant been blocking door would have testi- itself. Youn leaning against the door it would of seizure because question “definitely in the door- fied that Small leaving from the defendant prevented have kind “He was way” and Kim testified compartment). doorway into leaning through the —not course, argued that Kim might be it Of leaning on the He was side compartment. simply the encounter have could terminated the door.” so, might If it shutting the door. tes- my opinion, both Youn’s Kim’s exit Small blocked matter whether against the leaning timony that Small think a reason- But I do not the train. from is inher- doorway throughout the encounter terminate think could able would 1) leaning against the ently because: credible -by slamming a with the encounter way to conduct doorway be the natural would Savage, 889 face. See in the officer’s door sitting anyone inside with a conversation nothing about whether (saying at 1116 2) ability roomette; it would allow door). I Indeed shut the could the defendant things passing fact that he was conceal much it matters am sure encounter; throughout to Candelaria meth- Kim had inquiry alternative pass 3) passengers to other allow other than terminating the encounter ods contrast, I be- hallway. By freely down that Small for the fact exiting the train five to six testimony he was lieve Small’s variety ways of terminat- left Kim a 1) the door is incredible because inches from that a rea- not mean does ing the encounter five to six inches really had been if Small felt free to use would have person sonable roomette, not have would there outside the would certain- example, a seizure For them. pass to without people room for enough been into the had Small entered ly have occurred Small, acknowledging and nowhere at least him the door behind re- shut roomette and or me” tape record an “excuse does have termi- gardless of could whether single passenger a even similar statement other means some nated encounter 2) corridor,3 given and passing Small climbing away, out go telling like Small in the train at large of noise amount a window. time, Kim could have doubtful that it seems event, that Kim any I do believe “polite and conversation- even heard Small’s during the encoun- door have could shut stayed five to six inches al” voice had Small court made findings the district The ter. roomette. outside the car, the train configuration of about occur non- only did the encounter Not and down the passing up the traffic about blocking setting with Small public, confined left room claim he hallway, and Small’s exit, also asked only but Small means walking up down the and passengers for the they passed body part when of Small’s some kneeling, least Small testified he 3. If he had been nothing tape been, and there is approxi- Kim’s indicating legs out roomette would have stuck had mately way they did. Unless hallway. That would into the 18 inches Angeles have people train from Los worse on the people the corridor with less left other have average people, or are more nim- touching manners than pass Small. without than 12 inches svelte,, expected some- one would have ble thing inches from the been five to six And if he had passing passengers tape where the passengers on the doorway, have other would left he acknowledged presence. There noth- Small's Again pass. it is only to seven inches to with six tape. ing the kind on the step over at likely they have had through in- potentially airport); Kim and Youn focussed and the St. Louis United States criminating questions. Gonzales, (5th Cir.1988) first asked v. 842 F.2d (seizure citizenship Appar- about their status. them airport in an occurred when a DEA ently, sight travelling of two Asian men agent told the defendant that he was “work- Philadelphia Angeles from Los made ing narcotics” and asked to look in the defen- aliens, they might illegal think that be bag), grounds, dant’s overruled on other questions and no doubt his communicated Hurtado, (5th United States v. 905 F.2d 74 thoughts Kim. these He then asked them Cir.1990).4 “[y]ou guys any drugs your don’t Furthermore, questioning did the luggage today, you?” By asking do this after Kim, seek to questions incriminate but looking informing over their tickets twice and were also blunt Although and direct. agent them that he was a DEA on the train majority importance dismisses the traffickers, this fact looking drug Small communi- by stating that polite Small’s tone was message specific that Kim cated was a conversational, response target agent’s investigation. misses At least point. Bluntness courts and directness two have found that a seizure oc- describe the type asked, questions ques- curred not the when officer asked similar manner See, they suspect. e.g., of a were asked. Nunley, tions See United States v. (8th Cir.1989) (not Nunley, 873 F.2d 873 F.2d at 184-85 mentioning even (seizure agent occurred as soon as an told whether the officer’s tone was confrontation- defendant). part the defendant that he was of a narcotics al or rude to Although trying stop drugs unit and was the flow of tone of the officer’s voice is relevant Indeed, Nunley airport post-Bostick Both were cases. a recog number of Gonzales cases case, In each the encounter occurred in an air- asking incriminating questions nize that —like terminal, port non-cramped public place asking carrying he whether or she is quite easy where it would have been for the question per relevant to the whether a —is away. They defendant to walk are therefore See, e.g., son was seized. United States v. one, much weaker than cases where similar McCarthur, (7th 1993) 6 F.3d Cir. questions were asked to a defendant who was (stating that one relevant consideration is wheth trapped space in the confined of the roomette. police through questioning er the indicate their it, As I see if it is true that a seizure occurred specific target, that the defendants were a like questions where similar were asked to a defen- asking carrying drugs); are United public setting, dant in a then it must be the case (7th Adebayo, States v. Cir. seizure would have occurred where such 1993) (discussing as relevant to the seizure anal questions cramped were asked in a and confined ysis police whether the asked the defendant setting. carrying drugs, explaining whether he was majority comments in a footnote that "the (7th Borys, States 766 F.2d 304 Cir. dissent has cited to several cases decided in or 1985), which held that (1991) relevant to the sei prior proposi- before 1990 to Bostick question contrary zure whether the officer informs an language [that tion may to the Bostick potentially incriminating questions conducting drug investiga ask individual that he is a with- converting out an seizure]. encounter into a tion and then asks the individual if he has Maj.Op. denied, - U.S. -, Those cases also conflicted with Little." possession), in his cert. at 954 n. 6. I no see conflict between Bostick (1993); S.Ct. Nunley and either Both cases em- Gonzales. Wilson, (4th States v. 122-23 Cir. ploy totality ap- the same of the circumstances 1991) (persistent questioning, polite, even when proach Nunley, endorsed in Bostick. 873 F.2d at itself, seizure). particular created a Wilson is 185; Gonzales, Apparently 842 F.2d at 748. ly noteworthy because in that case there were no majority language believes that the from the Bos- coercive of the elements encounter other than question tick case makes the whether focused questioning police. panel of the in that The incriminating questions were asked irrele- asking case could not reached its result if totality inquiry. vant to the of the circumstances incriminating questions were irrelevant nothing language I see of Bostick that inquiry. merely says leads to a such conclusion. Bostick majority's ig- Thus the claim that the dissent police may approach person po- a and ask construed, misplaced. Properly nores Bostick is tentially incriminating questions without neces- Bostick allows courts to consider the incrimina- sarily converting the encounter into a seizure. It ting questioning part nature of the as one of the proposition does not follow from such a totality of the And asking circumstances. this conclu- incriminating questions is irrelevant to fully post-Bostick question person sion is consistent with case of whether a reasonable would have felt free to terminate the encounter. law. my opin- In that there was seizure. may make show tone of voice that a forceful extent ion, the “totali- they approach must transforms think that such person a reasonable requests, analysis of Bostick ty see Sav- circumstances” comply with officer’s of the (D.C.Cir.1989), the lack image per approach se age, 889 F.2d at 1115 a mirror into entirely not tone does that a rejected such a forceful in Bostick teaches Bostick. questions of their direct deprive blunt and all of the evidence court must consider questions asked The coercive force. the cir- to determine whether combination trafficking drug citizenship and Kim about per- such that a reasonable cumstances were as could be sharp and focussed were as free to terminate would not feel son circumstances, given that Small under the question one factor The encounter. suspicion that absolutely articulable had no necessarily not create a seizure or does does committed, alone that let crime had been longer after Bostick. simply no relevant Kim had committed crime. imple- Perhaps a result of this failure undisputed that failed Finally, it is standard, majority fails Bostick ment the right Kim his to decline the to advise recognize although failure Small’s the encounter. agent’s requests or terminate right Kim that he had a to terminate advise unimpor- majority this fact as dismisses The may by itself create a encounter not advice stating that such “[w]hile tant seizure, tip could the balance nevertheless nature of of the consensual well be evidence totality of the circumstances under a true advice, following the the ab- an encounter particularly true in this analysis. This is necessarily of such advice does sence circumstances are otherwise case because nature of the en- the consensual eliminate critical, per- Bostick. Of so similar to typical of the counter.” This statement decisive, importance in was the haps Bostick major- majority’s approach to this case. police questioning officers fact that the two ity fact of the encounter examines each “specifically had advised Bostick on the bus fact, by and considers whether each isolation right con- that he had the to refuse Bostick itself, person made a reasonable would have 432, 438, sent.” not free to terminate the believe he was repre- If we believe that Bostick (“Nor Maj.Op. at 951-52 do encounter. See of the a case which the actions sents in a train is we believe a confined area enough amount to a almost coercive were coercive.”); Maj.Op. at inherently 952-53 seizure, warning the absence of such (“we expectation that Kim’s do believe similar to that Bostick should be situation any overriding privacy [in roomette] enough tip the balance. analysis importance in our as to whether a occurred”); Maj.Op. (“poten- at 953 seizure sum, setting given was non- tially incriminating questions do them- asking Kim and public and that Small was coercive”) (em- an encounter selves make incriminating questions blocking while Youn supplied). phases roomette, failure to the door to the Small’s Kim that he could terminate the en- advise majority’s implication The clear I a seizure. that, counter made the encounter analysis this case is unless the defen- that no reasonable would have piece believe can forward with a of evi- dant come under felt free to terminate the encounter per the encounter a dence that would make seizure, such circumstances.5 se the defendant will not be able 1) course, following Kim and Small knew the facts: Small's seizure of Kim would not Of tickets; 2) Amendment if he had reason- violate the Fourth purchased one-way tick- Youn had suspicion him. See United States able to detain cash; 3) purchased they upgrad- for had ets were 7, 1581, 1585, Sokolow, 1, 109 S.Ct. v. 490 U.S. 4) Angeles; sleeper a car en route from Los ed to Ohio, (1989); Terry v. 392 U.S. 104 L.Ed.2d 1 5) they travelling Philadelphia; Kim was to were (1968). Small did Korea; 6) Youn was a citizen born in naturalized not, however, suspicion. At the have reasonable Marines; 7) the U.S. Youn's ticket was drugs whether he had time Small asked Kim (there "Terry is no evidence that name of Park” (the luggage his time that I believe seizure the time of knew that this was an alias at Small occurred because this time the encounter encounter, (8) however); train mani- space, only cramped, non-public but had assigned sleep- incriminating questioning), had the name "Wonz” to the fest involved focused and II. THE suspect, by consenting OF CONSENT that a to SCOPE the search of trunk,, agreed his to breaking open prior Kim to Even if did not seize Small a locked briefcase within the trunk.” Id. luggage, search of his search of the Small’s (Fla. Wells, (citing State v. 589 So.2d 464 vegetable protein the sealed canisters he 1989)). Jimeno, Wells, Each officer luggage within the violated the Fourth found requested this case consent to search for scope Amendment because it exceeded the narcotics; thus the defendant in each case mentions, majority the consent.6 As the contexts, making consented under similar bag to and Kim Small asked search Kim’s scope of their consent similar. Hence the said he could. Small then saw six metal- question ultimately posed by this case is lidded, factory-sealed canisters “Na- labelled factory whether the sealed canister is more Vegetable turade All-Natural Protein.” like a locked a paper bag.7 briefcase or folded permission, asking Without and after they a Kim told Small that were meant to be majority’s entire discussion of this factory present, opened the seal and question is as “cans such follows: as found asking him handed the canister to Candelaria judice the case sub are not similar to locked poke to around inside the can to see what he simply briefcases.” That a conclusion. question could find. The is whether Small There is no discussion of the relevant differ- reasonably believed that Kim’s consent to objects purposes ences between the two for gave permission luggage search his to scope of the reasonable of a consent majority open the canisters. The holds that my opinion, search. the difference be- disagree. I did. paper bag tween the folded in Jimeno and Jimeno, We know from Florida v. the locked briefcase in Wells has to with do (1991), L.Ed.2d 297 greater expectation privacy the owner’s objec- scope that the of a is defined search paper the contents of the than in briefcase a tively approach a and that under such an bag, greater property the owner’s suspect’s general a car consent search having interest in not lock on his brief- paper bag includes consent to search a folded having than in paper bag case broken his lying on the floor of the car. 500 U.S. at opened. 251-52, 111 S.Ct. at 1804. But we also know believe, however, larger heightened that consent a container I search that a ex- pectation privacy does not include consent to search all smaller can be- evidenced something gift-wrapping containers inside. Id. As Jimeno itself stat- other than a lock— ed, very likely package, example. “[i]t is unreasonable to think around a Of course improper involuntary, er. These facts are all consistent with innocent seizure was absent a travel, woefully particu- Apparently, fall short break in the causal chain. the ma- suspicion justify Terry stop. jority larized sufficient to concedes that there was no break in causa- Compare (3d Cir.1993) Coggins, United States 986 F.2d 651 tion between Small's initial encounter with Kim Thus, (reasonable suspicion bag. exists when and his search of the if the seizure profile improper, the defendant matched the standard the fruits of the search should couriers, name, drug using suppressed. a false rented a have been it, returning car for a few hours before appeared highly agitated, majority nervous and and was 7. The frames the issue as a matter of traffickers). traveling recognized drug reasonably with two whether or the canisters could drugs. have contained It frames the issue in this majority question way propo- 6. The addresses the because it abstracts from Jimeno voluntarily requests permission consented to Small's search of sition that when an officer luggage permission given, and concludes that Kim did so con- search for and such permission sent. It then concludes that "the district court "the items within that extends finding voluntarily was correct in that Kim con- area that reasonable would believe drugs.” luggage.” reading sented to the search of his I am not contain Such a of Jimeno can- entirely why majority right. clearly sure has chosen to not be Jimeno states that it would particular analysis. suspect undertake this consent have been "unreasonable” to think that a that, seizure, apparently concedes in- absent a consents search of locked briefcase luggage (though consent to of search not the side a car trunk when he consents to search container) voluntarily given. certainly sealed course, think Of the trunk. Yet it is reasonable to seizure, improper if there was an Kim's that a locked suitcase in those circumstances luggage pursuant drugs. consent to the search of the contains obviously already opened con- of an or a box the lid package like a can of food sealed drugs. looking for tainer when he is shrink-wrap around it does plastic with strong privacy interest. really evidence Springs reached its conclusion part display promi- products will often Labels on baby powder distinguishing the container package. This is nently contents of a .lime- briefcase discussed from the locked impor- becomes the second distinction where 1) baby powder ño grounds: two tant, property to search however. Consent 2) key, opening did not have a container reasonably to mean con- be construed cannot baby powder would not render container There is a damage property. sent to above, For the reasons discussed it useless. packages, strong property interest in sealed Amend- forecloses Fourth neither distinction damages opening the value them often First, as was protection in this case. ment that interest. above, although the locked nature mentioned strong evidence of of the briefcase my All-Natural opinion, In the Naturade private, it keep intent to its contents owner’s took from Vegetable Protein canister Small key that a or lock is neces- does not follow than a can of luggage was no different sary container to be outside the for a box or fish, milk, locked brief- tuna a carton of or a scope of a consensual search of this kind. case, seriously dam- all which would be Second, Springs’ “use- discussion aged opened. the seal was bro- once Once agreement prin- suggests with the less[ness]” ken, simply not be able to the canister reasonably extend ciple that consent does not keep spoilage from to the its contents free damage physically that will to searches And if it was same extent it could before. property being searched. As discussed gift, as Kim told before meant to be a above, case, applied to the facts of this when lid, good much opened the it would not be he suggests principle this that Small exceeded opened. I believe it to be unreasonable once scope Kim’s consent. police officer to think that consent to for a becoming in this area of It is a shibboleth open up a luggage includes consent to search say law for courts to are package, particularly one that bears sealed usually loosely throughout larg- not scattered tampering no and which visible evidence See, Jimeno, e.g., 500 U.S. at er containers. going to used the officer has been told is be 1804; Springs, 251-52, 111 S.Ct. at gift. as a appro- fully I that it is at 1334-35. concede cites United States majority Although the priate police for a officer to look at smaller (D.C.Cir. Springs, 1334-35 may possi- luggage containers found in 1991), support its conclusion that an officer bly drugs. police offi- contain But once during can break into sealed containers either cer has looked at the item and search, Springs I consensual do believe sealed, wrapped or it is unreasonable for the Springs, proposition. In al stands for police think that the consent to officer to though baby a lid powder container had luggage gives him license to dam- search the (which majority disingenuously somewhat asking age opening the item it without “seal”), calls a there was no evidence permission.8 opinion that the container was sealed respectfully I dissent. factory that it vacuum seal cov sense had fact, baby powder ering opening. its suggesting pry had marks on it

container already opened the con

that someone had Springs really Id. at 1332. Thus

tainer. can holds that a officer remove canister, Moreover, stating opened statement did not mean that before Small that Youn’s said, open but rather a reason- Small should not the canister "[i]ts Youn closed.” I believe that simply he that he did not know what was in able officer would take that to mean that majority, majority According an- open canister. "Youn's the container. The should way saying, problem away part by know attempts swer was another '1 don't to wave this America,

UNITED STATES

Plaintiff-Appellee, MOORE, Defendant-Appellant.

Jerry A.

No. 93-5767. Appeals,

United States Court

Fourth Circuit.

Argued 1994. March

Decided June ” say But did not “I closed.”

because it is closed.’ Youn said, closed.” He “It's don’t know because

Case Details

Case Name: United States v. Yong Hyon Kim

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 30, 1994

Citation: 27 F.3d 947

Docket Number: 93-1726

Court Abbreviation: 3rd Cir.