United States v. Allen John Lemos, Jr., A/K/A J. Lance

35 F.3d 513, 1994 U.S. App. LEXIS 25463, 1994 WL 498652

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 13, 1994
• Docket: 93-2196
• Status: Published

Opinions

PAUL KELLY, Jr., Circuit Judge.

The government appeals from the district court’s granting of Mr. Lemos’ motion to suppress evidence obtained incident to a search of his luggage. We have jurisdiction under 18 U.S.C. § 3731 and we reverse for further proceedings.

We have concluded that this appeal should be remanded in light of United States v. Little, 18 F.3d 1499 (10th Cir.1994) (en banc), insofar as the factors evaluated by the district court do not constitute a nonconsensual encounter as a matter of law. See id. at 1504-05. We do note our agreement with the district court’s conclusion that reasonable suspicion did not exist when Agent Candela-ria began questioning Mr. Lemos. See United States v. Hall, 978 F.2d 616, 621 (10th Cir.1992); United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.1992).

On remand, the district court should consider whether there existed a sufficient level of individualized suspicion necessary to seize Mr. Lemos’s luggage. This inquiry should include whether this incident was really commenced by a search, whatever thereafter developed, requiring probable cause, as discussed in Judge Seth’s concurring opinion.

REVERSED and REMANDED.