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

Tenth Circuit

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 of Appeals for the Tenth Circuit·Decided September 13, 1994·No. 93-2196·Published·Cited by 6 cases

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. [514]*514Little, 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.

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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. [514]*514Little, 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.

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 (10th Cir. 1994).

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