United States v. Bonnie Kaye Little

18 F.3d 1499, 1994 U.S. App. LEXIS 5414, 1994 WL 88834

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 22, 1994
• Docket: 92-2155
• Status: Published

Opinions

STEPHEN H. ANDERSON, Circuit Judge.

The government appeals from an order of the district court granting defendant/appellee Bonnie Kaye Little’s motion to suppress evidence seized pursuant to a search of her luggage on board a train in Albuquerque, New Mexico. After oral argument to a panel, but prior to a decision, we ordered this case reheard in banc. Upon review of the briefs and arguments of the parties, we hold that the district court employed the wrong legal standard when it granted the motion to suppress, in that it held that our prior cases compelled the conclusion that a police-citizen encounter at a train roomette, without a specific advisement by the police officer that the defendant need not answer questions, constituted an unlawful seizure. Our prior cases dictate no such per se rule. We therefore REVERSE and REMAND this case for further proceedings utilizing the proper standard.

BACKGROUND

Certain basic facts are undisputed. On January 27,1992, Drug Enforcement Administration (“DEA”) Agent Kevin Small received a tip that two passengers on the Southwest Chief Amtrak train due to arrive in Albuquerque at 1:25 p.m. might be carrying drugs. Neither of those individuals was Ms. Little.

In the course of questioning and eonsensually searching the luggage of those individuals, Agent Small noticed a large blue suitcase in the public baggage area of the train. The suitcase appeared to be new, was unlabelled, and, when the agent knelt down next to it, he detected “a chemical odor coming from the bag.” Appellant’s App., Tr. of Mo.Hr’g at 23. Agent Small was then joined by Detective Ivan Smith of the Albuquerque Police Department, who was under assignment to the DEA Task Force, and who also apparently detected a chemical odor coming from the bag. Agent Small testified he could not identify the odor, nor could he associate it with a particular drug or drug-related activity (such as an odor-masking agent). He asked the car attendant who brought the suitcase on board the train, and was told that it was the occupant of roomette 7. He checked the train manifest and determined that the occupant of roomette 7 was Ms. Little.

Accompanied by Detective Smith, Agent Small turned on a tape recorder to record his conversation and approached roomette 7. Detective Smith stood back in the vestibule area out of sight of the roomette, while Agent Small went to the room. The door to the roomette was open and Ms. Little was sitting inside. Agent Small stood outside the room, “in the hallway,” id. at 48, showed Ms. Little his DEA badge, told her he was with the Police Department, and asked if he could speak with her. She consented, and Agent Small proceeded to ask her a series of questions.¹

He asked her where she was traveling, to which she responded she was traveling from California to St. Louis. Agent Small asked to see her ticket, which she handed to him, and which evidenced that she had bought a one-way ticket with cash the day before. After returning the ticket, he asked for a picture identification, and she handed the agent a Missouri driver’s license belonging to Bonnie Little, with a St. Louis address on it. Agent Small promptly returned that to her as well. He then told Ms. Little that he was with the DEA, that he checked the train manifests for people traveling alone from California to the east on one-way tickets bought with cash because they sometimes carried drugs. He then asked her if she was carrying any drugs in her luggage, to which she responded she was not.

The agent testified that he had noticed a blue nylon bag next to Ms. Little. He asked her if the nylon bag was the only bag she had and she told him it was. When Agent Small asked Ms. Little if she would “voluntarily consent” to search the bag, she apparently hesitated, to which the agent responded:

You don’t have to. It’s completely voluntary on your part. You don’t have to let me do it. I don’t have a search warrant. You’re not under arrest. It’s up to you.

Government’s Ex. 2, tape recording. Ms. Little said she would prefer that he not search the bag.

Agent Small then asked her again if the bag was her only luggage, and she said it was.² The agent thereupon asked her if she would accompany him downstairs and look at something, which she agreed to do. They went to the public baggage area and Agent Small asked Ms. Little if the large blue suitcase was hers. She responded that it was. The agent asked if she would consent to having the bag searched, and Ms. Little asked if she had to consent to the search, to which Agent Small said, “No, you do not.” When the agent asked her if she had packed the bag herself and if she knew what was in it, she responded that she did not know what was in the bag, that she had not packed it, but had been given the bag by a “friend” in Los Angeles and told to take it to someone else in St. Louis.

The agent then told Ms. Little that he was going to take the bag and subject it to a dog sniff because he thought it contained contraband. When a trained narcotics dog alerted to the suitcase, Agent Small arrested Ms. Little. The dog also alerted to the blue nylon bag Ms. Little had with her in the train compartment.³ When the two bags were searched, pursuant to a search warrant, each was found to contain fifteen kilograms of cocaine.

■ Ms. Little was indicted for possession with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). She entered a plea of not guilty and filed a motion to suppress the cocaine seized from her luggage, on the ground that the luggage had been seized without a warrant and that the affidavit in support of the search warrant did not state probable cause.

After conducting a hearing on the motion, the district court granted it, reasoning as follows:

[A] person such as the defendant in this case ha[s] a higher expectation of privacy when they engage a small room in trains.

And here as in the Ward case [United States v. Ward, 961 F.2d 1526 (10th Cir.1992) ] the Court finds that his questioning Ms. Little in this confined space away from the public was in effect a situation where she was not permitted to decline answering questions.

Moreover important in this case as pointed [out] in the Ward case is that at no time did Agent Small advise her that she could terminate the questioning.

And I note that throughout Agent Small was very pointed in his questioning of the defendant, and he was asking incriminating questions.

The Court in Ward states that in a Fourth Amendment inquiry it is relevant that an individual traveling in a private train roomette has a higher expectation of privacy than an individual traveling in a public passenger train.

And also as here that the officer’s confrontation of the defendant in a place where she had a legitimate expectation of privacy supports the conclusion, and I so conclude in this case, that the encounter occurred in a private, non-public setting as distinguished from an open public setting.

Appellant’s App., Tr. of Mo.Hr’g at 63-64. The court went on to conclude that Agent Small lacked reasonable suspicion to conclude that Ms. Little’s luggage contained narcotics, so as to justify a brief detention of the luggage to subject it to a dog sniff. The court held that the chemical odor was an insufficient basis for the detention, and “the information reflected and known to agent Small was not inconsistent with innocent travel on a train by anyone.” Id. at 65. The government appeals the district court’s order granting the motion to suppress, arguing that the encounter between Agent Small and Ms. Little was consensual and that Agent Small had reasonable suspicion to detain her luggage and subject it to a dog sniff.

DISCUSSION

When reviewing an order granting a motion to suppress, “we accept the trial court’s factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court’s finding.” United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) (citing United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir.1992) and United States v. Preciado, 966 F.2d 596, 597 (10th Cir.1992)). We review de novo the “ultimate determination of Fourth Amendment reasonableness.” United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993). ‘“If the district court’s factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible.’ ” United States v. Zapata, 997 F.2d 751, 757 (10th Cir.1993) (quoting United States v. Nicholson, 983 F.2d 983, 987 (10th Cir.1993)).

We consider first whether the district court correctly held that the encounter between Agent Small and Ms. Little was a seizure implicating the Fourth Amendment, rather than a consensual encounter. The Supreme Court in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), enunciated the test for determining whether an encounter is consensual or not:

[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.

Id. 501 U.S. at -, 111 S.Ct. at 2389. See also United States v. Laboy, 979 F.2d 795, 798 (10th Cir.1992); United States v. Bloom, 975 F.2d 1447, 1451 (10th Cir.1992). The test is objective (what would the police conduct have communicated to a reasonable person) and fact specific (based on “all the circumstances surrounding the encounter”).

Bostick explicitly held that the particular location of an encounter is but one factor in the “totality of the circumstances” test: “[wjhere the encounter takes place is one factor, but it is not the only one.” Bostick, 501 U.S. at -, 111 S.Ct. at 2387. Indeed, Bostick specifically rejected the Florida Supreme Court’s application of a per se rule that any police-citizen encounter occurring inside a bus, as opposed to outside the bus or in the bus terminal lobby, constituted a seizure.⁴ Rather, every case turns on the totality of the circumstances presented. When there is such a totality of the circumstances test, “only in rare instances will any one factor produce an inexorable conclusion that a seizure has occurred.” United States v. Jordan, 958 F.2d 1085, 1086 (D.C.Cir.1992); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973) (reviewing cases involving voluntariness of consent, concluding that “none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances”).

Just as Bostick explicitly rejected any categorical distinctions based on the location of a police-citizen encounter on a bus (inside the bus, outside the bus, or in the bus terminal lobby), so, too, we reject the argument that the location of an encounter on a train (outside the train, in a public coach, or in a private roomette) is determinative of the seizure question.⁵ Any implication to the contrary from our previous opinions is overruled.

In so holding, we recognize the difficulties in providing guidance concerning the application of a totality of the circumstances test. Such a test is “necessarily imprecise.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). However, its focus is on “the coercive effect of police conduct, taken as a whole,” on a reasonable person. Id. at 573-74, 108 S.Ct. at 1979. It must “allow[ ] the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Id. at 574, 108 S.Ct. at 1980. That objective is defeated by rules which give determinative weight to the location of a police-citizen encounter. Cf. Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S.Ct. 515, 519-20, 93 L.Ed.2d 473 (1986) (reviewing cases involving “coercive government misconduct” and the “crucial element of police overreaching” violative of the Due Process Clause of the Fourteenth Amendment).

In concluding that the encounter between Agent Small and Ms. Little was a seizure, the district court specifically relied in part on our statement in Ward that:

it is relevant that an individual traveling in a private train roomette has a higher expectation of privacy than an individual traveling in a public passenger ear of the train.... [T]he officers’ confrontation of defendant in a place where he had a legitimate expectation of privacy supports the conclusion that the encounter occurred in a private, nonpublic setting....

Ward, 961 F.2d at 1531-32.

Whatever “higher” expectation of privacy a traveler may have in a private roomette, we hold that such roomettes do not confer upon occupants the same degree of privacy as a dwelling or hotel or motel room, and we overrule any contrary statement in United States v. Dimick, 990 F.2d 1164, 1166 (10th Cir.1993). See United States v. Rem, 984 F.2d 806, 812 & n. 3 (7th Cir.) (observing that privacy interest of travelers on public thoroughfares is “substantially less” than privacy interest in fixed dwellings), cert. denied — U.S. -, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993); United States v. Colyer, 878 F.2d 469, 475-76 (D.C.Cir.1989) (rejecting defendant’s argument that an Amtrak roomette is like a hotel room or apartment, finding that “[wjhile an Amtrak sleeper car may in some ways resemble a residence, it enjoys no such status in the law”); United States v. Tartaglia, 864 F.2d 837, 841 (D.C.Cir.1989) (“[A] passenger travelling in a • train roomette has a lesser expectation of privacy than a person in his home.”); United States v. Whitehead, 849 F.2d 849, 853 (4th Cir.) (“[W]e reject the contention that a passenger train sleeping compartment is a ‘temporary home’ for fourth amendment purposes. While occupants of train roomettes may properly expect some degree of privacy, it is less than the reasonable expectations that individuals rightfully possess in their homes or their hotel rooms.”), cert. denied 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988).

We need not determine the precise level of any “higher” expectation of privacy in a train roomette, however, because any such expectation of privacy has only a limited relevance to the question of whether a police-citizen encounter in such a roomette is consensual. “While a person’s ‘higher expectation of privacy’ in his or her train compartment would have some relevance if we were reviewing a search of the compartment, it has limited relevance to the question of whether a reasonable person would believe that he or she is unable to terminate the encounter.” United States v. Bloom, 975 F.2d 1447, 1453 n. 6 (10th Cir.1992); cf. INS v. Delgado, 466 U.S. 210, 217 n. 5, 104 S.Ct. 1758, 1763 n. 5, 80 L.Ed.2d 247 (1984) (stating that “the same considerations attending contacts between the police and citizens in public places” apply to contacts “inside a factory, a location usually not accessible to the public”).

In addition to the train roomette setting of the encounter between Agent Small and Ms. Little, the district court also emphasized Agent Small’s failure to specifically advise Ms. Little that she had the right to refuse to answer his questions. There is no per se rule requiring such an advisement. See Delgado, 466 U.S. at 216, 104 S.Ct. at 1762; Schneckloth v. Bustamonte, 412 U.S. 218, 231, 93 S.Ct. 2041, 2049, 36 L.Ed.2d 854 (1973); United States v. Zapata, 997 F.2d 751, 757 n. 4 (10th Cir.1993); United States v. Laboy, 979 F.2d 795, 799 (10th Cir.1992); Bloom, 975 F.2d at 1454-55; Ward, 961 F.2d at 1533.

Moreover, Agent Small did specifically tell Ms. Little that she need not acquiesce to a search of her luggage. While we do not suggest that an advisement concerning answering questions is the same as an advisement concerning the search of luggage, in this case Agent Small’s unambiguous and explicit advisement concerning the search of her luggage is relevant to the totality of the circumstances surrounding the encounter.

We reject Ms. Little’s argument that “because Ms. Little was a woman traveling alone, she, as the defendant in Ward, would be more easily intimidated than some other person.” Am. Appellee’s Answering Br. at 20. While in Ward we observed that the defendant’s “slight physique” and the fact that he had “recently undergone a kidney transplant for which he was still taking medication” suggested that he “was more easily intimidated than some other persons,” Ward, 961 F.2d at 1533, subsequent opinions have more clearly stated our view of the propriety of considering the particular personal traits or subjective state of mind of the defendant. We stated in Bloom, and reiterated in Laboy and Zapata, that the particular personal traits or subjective state of mind of the defendant are irrelevant to the objective “reasonable person” test set out in Bostick, “other than to the extent that they may have been known to the officer and influenced his conduct.” Bloom, 975 F.2d at 1455 n. 9; see also Zapata, 997 F.2d at 757; Laboy, 979 F.2d at 799.⁶ Thus, unless there is evidence that Agent Small knew of any particular personal traits or characteristics of Ms. Little, and they influenced his conduct, they are irrelevant to the question of whether the encounter between Agent Small and Ms. Little was consensual. And we reject any rule that would classify groups of travelers according to gender, race, religion, national origin, or other comparable status.⁷

Finally, we turn to the district court’s reliance on the fact that “Agent Small was very pointed in his questioning of the defendant, and he was asking incriminating questions.” Appellant’s App., Tr. of Mo.Hr’g at 63. The asking of “incriminating questions” is irrelevant to the totality of the circumstances surrounding the encounter. Indeed, Bostick specifically observed that police officers ask such questions, and in no way suggested that there is anything unlawful in the practice. Bostick, 501 U.S. at -, 111 S.Ct. at 2384.

Having clarified the appropriate legal standard governing the encounter between Agent Small and Ms. Little, we now consider whether the district court applied that standard in granting Ms. Little’s motion to suppress. We hold it did not. While not explicitly embracing any per se rules regarding encounters in train roomettes, the district court apparently gave determinative weight to both the roomette setting and to the failure to specifically advise Ms. Little that she need not answer questions, in the belief that Ward so dictated. In so doing, the district court, like the Florida court in Bostick, failed to fully explore the totality of the circumstances surrounding the encounter.⁸ We accordingly reverse the grant of the motion to suppress and remand this case for further proceedings, employing the correct legal standards governing police-citizen encounters. Anything in prior opinions that is contrary to the views expressed herein is overruled.

Because we remand this case for further proceedings, we do not reach the question of whether Agent Small had reasonable suspicion to detain Ms. Little’s luggage and subject it to a dog sniff. We do hold, however, that the record in this case clearly indicates that Agent Small did not have reasonable suspicion to detain the luggage prior to his encounter with Ms. Little. An unidentified chemical smell emanating from an unlabelled piece of luggage is not, by itself, sufficient to create reasonable suspicion. Cases generally require the officer to be able to link the smell to a particular controlled substance or illegal activity. See, e.g., United States v. Morin, 949 F.2d 297, 299 (10th Cir.1991) (probable cause based in part on the “strong odor of marijuana in the vicinity of the two bags”); United States v. Mueller, 902 F.2d 336, 339 (5th Cir.1990) (affidavit stating detection of “strong chemical odor of those chemicals commonly used in the manufacture of Methamphetamine” along with other statements established probable cause); United States v. Romero, 692 F.2d 699, 703 (10th Cir.1982) (“Officer ... was an experienced policeman familiar with the odor of marijuana. This odor, combined with [other factors] gave the officers probable cause.... ”); see also United States v. McKneely, 810 F.Supp. 1537, 1543 (D.Utah) (“An unidentifiable [chemical] smell alone is not sufficient to create a reasonable suspicion.”), rev’d on other grounds, 6 F.3d 1447 (10th Cir.1993).⁹

For the foregoing reasons, we REVERSE and REMAND this case for proceedings consistent herewith.

1 . The actual tape of Agent Small's encounter with Ms. Little was admitted into evidence in the district court, although a transcript made of the tape by the government was not admitted by the district court because of some apparent inaccuracies in its transcription. The transcript, but not the tape, was included in the record on appeal. We have supplemented the record on our own motion with the tape. Despite some suggestions to the contrary at oral argument of this case, the tape itself clearly indicates that Ms. Little consented when Agent Small first approached her and asked if he could speak with her.

2 . The government asserts that Ms. Little's responses to Agent Small's questions about whether the bag was her "only” bag amounted to a lie to Agent Small about her ownership of the blue suitcase, and that Agent Small knew she was lying. Ms. Little argues that the questions were ambiguous, and she interpreted them as questions about whether the small nylon bag in the roomette with her was her only piece of luggage in the room with her. The district court made no findings on this matter.

3 . Agent Small testified that he never saw the dog alert to the small bag, but that another officer told him the dog had alerted to the bag.

4 . Even though the Florida Supreme Court disavowed the express application of a per se rule, the United States Supreme Court concluded that the Florida court in practice followed such a rule, because it routinely and consistently granted motions to suppress evidence found during encounters inside buses. Similarly, even though this court has never explicitly adopted a per se rule regarding encounters inside train roomettes, some lower courts attempting to apply our decisions have concluded that our court has in practice followed a per se rule that such encounters are seizures. See United States v. Miller, 811 F.Supp. 1485, 1489 (D.N.M.1993).

5 . Our prior opinions in Ward and Bloom both discussed the nonpublic nature of the private train roomette, on the implicit assumption that a reasonable person would feel more vulnerable to coercion in such a nonpublic place, outside the view of others. We now make two observations about that. First, it is by no means obvious that private train roomettes are always less public than other parts of a train. See United States v. Kim, No. Crim. 93-87, 1993 WL 175251 at *5 (E.D.Pa. May 12, 1993) (encounter in private Amtrak roomette "not a nonpublic encounter ... [because it was] located in a 'well-trafficked’ area of the train"). Second, it is simply an assumption, unsupported by any specific data or evidence, that a person in a private train roomette, not in the view of other passengers, will feel more vulnerable to coercion than a person who is in the view of other people. It may be that many people would in fact feel more "coerced” in a public setting, where they might be embarrassed to decline police requests in the hearing and view of others.

6 . Characteristics such as whether the person being questioned is a child or an adult, for example, are objective and relevant.

7 . The dissent finds this statement "surprising” and fears it may be interpreted by district courts as a repudiation of part of our opinion in Zapata, 997 F.2d at 759. The dissent only reaches those conclusions by completely misinterpreting our statement. Of course age, gender, education and intelligence may be relevant in any particular case, to the extent they are objectively apparent. They should not, however, form the basis for general across-the-board categorizations of groups of travelers. Thus, what we reject are rules which state or imply that all women, all minorities, or all young people are always more vulnerable to coercion.

8 . On remand from the United States Supreme Court, the Florida Supreme Court in Bostick simply affirmed, without discussion, the lower court's decision denying Mr. Bostick's motion to suppress. Bostick v. Florida, 593 So.2d 494 (Fla.1992) (per curiam). No appeal has been taken.

9 . In holding that Agent Small lacked reasonable suspicion to detain Ms. Little’s luggage and subject it to a dog sniff, the district court observed that "the information reflected and known to Agent Small was not inconsistent with innocent travel on a train by anyone.” Appellant's App., Tr. of Mo. Hr'g at 65. On remand, the district court should consider that factors "quite consistent with innocent travel” may "taken together ... amount to reasonable suspicion.” United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989).