United States v. Jose Martinez Escobar Vicky Lynn Loos, Also Known as Vicky L. Reppuhn

389 F.3d 781, 2004 U.S. App. LEXIS 24045, 2004 WL 2609076

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 18, 2004
• Docket: 03-4046
• Status: Published

Opinions

BYE, Circuit Judge.

The United States appeals the district court’s¹ order granting Vicky Lynn Loos’s and Jose Martinez Escobar’s motions to suppress evidence discovered in a warrant-less search of their luggage. We affirm.

I

On February 24, 2003, Loos and Esco-bar were traveling from Los Angeles, California, to a final destination of Saginaw, Michigan, aboard a passenger bus. At midday, the bus arrived at the bus terminal in Omaha, Nebraska, to refuel. During refueling, the passengers were allowed to disembark and remain at ease in the terminal.

During this Omaha refueling stop, members of the Omaha Metropolitan Commercial Interdiction Unit were stationed at the terminal so as to target drug-trafficking operations. During the refueling, two members of the unit, James Krans and Alan Eberle, visually inspected luggage stored in the bus’s cargo hold. Krans noticed two new green bags, similar in design, which were secured with “larger than normal padlocks.” The bags aroused the investigators’ suspicions and upon further scrutiny they determined the bags belonged to Loos and Escobar.

Krans and Eberle did not attempt to establish probable cause by subjecting the bags to a drug-dog sniff. Instead, they continued their investigation by attempting to determine if Loos and Escobar had purchased their tickets on the day of travel using cash. The bus company’s computer system, however, was not working so they asked a bus company employee to page the pair. Moments after the page, Loos approached the employee counter and Krans identified himself as a police officer. Krans told Loos she was not under arrest and had done nothing wrong but he needed to talk to her. Loos agreed to talk but became noticeably nervous. When Krans asked for identification, Loos returned to the table where she had been sitting with Escobar and retrieved her driver’s license from her purse. Krans and Eberle followed her to the table and continued the conversation. Among other things, Krans lied by telling Loos a drug-detection dog had in fact alerted on Loos’s and Escobar’s luggage and he asked her if she had the keys to the padlocks. Loos did not respond but began rummaging through her purse in an apparent attempt to locate the keys. Eberle took no active role in the conversation with Loos, but instead introduced himself to Escobar and asked to see his ticket. From the ticket, Eberle was able to determine it had been purchased utilizing cash on the day travel commenced.

Eberle and Krans continued questioning Escobar and Loos until Krans asked Loos to accompany him to the baggage area to identify her bag. Krans then turned and walked away, leaving Loos little choice but to follow him. Eberle, in turn, asked Es-cobar to accompany him to the baggage area. Like Loos, Escobar said nothing but complied with Eberle’s request.

The baggage area is a large room in a non-public part of the terminal. Once inside, Krans asked Loos if he could search her purse for the keys. Loos laid her purse on the table and told Krans to: “Go ahead.” As he searched the purse, another investigator appeared carrying the bags. Krans found the keys and asked if he could search her bag. Again, Loos responded with: “Go ahead.” At no time was Loos advised she was free to object to the search. As Krans searched Loos’s bag, Eberle asked Escobar for permission to search his bag. Escobar said: “Go ahead, you’re going to do it anyway.” Eberle informed Escobar he did not have to consent to the search, but as noted by the district court, the admonition “was ineffectual since Loos had already consented and both defendants were immediately put into custody before there was an attempt to search Escobar’s bag.” Appellant’s Ad. p. 39.

The search uncovered in excess of five kilograms of cocaine. Escobar and Loos were arrested and charged with conspiracy to possess and distribute five kilograms or more of cocaine, 21 U.S.C. § 846, and possession with intent to distribute five kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1). Loos and Es-cobar filed motions to suppress the drug evidence arguing the officers did not have a reasonable articulable suspicion to justify removing the bags from the bus or to detain the bags for further inspection. The government argued the officers had a reasonable articulable suspicion the bags contained illegal drugs, and even assuming they did not, Loos and Escobar consented to the removal of the bags from the bus. The government further argued Loos and Escobar consented to the search of their luggage thereby vitiating any problems with the detention.

The magistrate judge’s Report and Recommendation recommended denying the suppression motions. The district court, however, rejected the recommendation and granted the motions finding the officers lacked a reasonable articulable suspicion to justify detaining the bags, and the consent given by Loos and Escobar to detain the bags was not freely and voluntarily given. Finally, the district court determined Krans lied about having probable cause to search the bags, and Loos’s and Escobar’s consent to search was too close in time to the misconduct to purge the taint of the illegal detention. In other words, consent was not freely and voluntarily given.

II

The district court’s analysis addressed three distinct issues arising out of the search of Loos’s and Escobar’s luggage. First, the court analyzed whether removing the bags from the bus and carrying them to the baggage area was a seizure supported by a reasonable articulable suspicion. Second, the district court addressed whether Loos and Escobar consented to having the bags removed and brought to the baggage area. Finally, the district court considered whether Loos’s and Escobar’s consent to search the bags, which followed closely on the heels of the illegal detention, was valid. We find it unnecessary to explore the first two issues and focus our analysis on the third.²

We require a showing of reasonable articulable suspicion before law en-foreement is permitted to detain or seize an item for purposes of investigation, i.e., to establish probable cause. United States v. Logan, 362 F.3d 530, 533 (8th Cir.2004). If officers do not have a reasonable articu-lable suspicion sufficient to justify detaining an item, any subsequent search of the item will be held unconstitutional even though probable cause was later established. Here, however, the government never established probable cause. Thus, even assuming the initial seizure was proper, the search was permissible only if Loos and Escobar freely and voluntarily consented. See United States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir.2004) (citing Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (holding searches conducted without a warrant based on probable cause are presumptively unreasonable).

“Under the fourth and fourteenth amendments, searches conducted without a warrant issued upon probable cause are presumptively unreasonable, subject to a few specifically established exceptions.” Id. Consent to search is one such exception, and “[a] warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search.” United States v. Brown, 763 F.2d 984, 987 (8th Cir.1985). Whether consent is voluntarily given is a question of fact, Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and on appeal, we review the district court’s fact findings for clear error. United States v. Lee, 356 F.3d 831, 834 (8th Cir.2003).

The test applied to determine if consent is free and voluntary is whether, in light of the totality of the circumstances, consent was given without coercion, express or implied. Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041; Laing v. United States, 891 F.2d 683, 686 (8th Cir.1989). The government bears the burden of showing consent was freely and voluntary given and not a result of duress or coercion, Laing, 891 F.2d at 686, and the burden cannot be discharged by showing mere acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). “Rather, the government must show that a reasonable person would have believed that the subject of a search gave consent that was the product of an essentially free and unconstrained choice, and that the subject comprehended the choice that he or she was making.” Cedano-Medina, 366 F.3d at 684 (internal citations and quotations omitted).

Factors we consider when determining if consent was freely and voluntarily given, as set forth in United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.1990), include 1) age, 2) general intelligence and education, 3) whether the individual was under the influence of drugs or alcohol, 4) whether she was informed of the Miranda3 rights, and 5) whether she had experienced prior arrests and was thus aware of the protections the legal system affords suspected criminals.

Additionally, the environment in which the alleged consent was secured is also relevant. Accordingly, we consider 1) the length of time one was detained, 2) whether the police threatened, physically intimidated, or punished the suspect, 3) whether the police made promises or misrepresentations, 4) whether the suspect was in custody or under arrest when the consent was given, 5) whether the consent occurred in a public or a secluded place, and 6) whether the suspect stood by silently as the search occurred. United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001). We also consider “whether the defendant’s contemporaneous reaction to the search was consistent with consent.” United States v. Jones, 254 F.3d 692, 696 (8th Cir.2001). “The factors should not be applied mechanically, and no single factor is dispositive or controlling.” United States v. Bradley, 234 F.3d 363, 366 (8th Cir.2000) (internal citation omitted).

Here, Krans and Eberle summoned Loos to the employee counter to confront her with their suspicions. There is no evidence Krans threatened, physically intimidated or punished Loos or Escobar. Indeed, Krans told Loos she was not in trouble or under arrest. Nevertheless, after Loos produced her identification, Krans told her a drug-sniffing dog had given a positive indication of drugs in her travel bag.⁴ Next, Krans asked for the keys to unlock the padlocks and when Loos was unable to locate them, he suggested he should search her purse. Eventually, Krans asked Loos to accompany him to the baggage area — a non-public part of the terminal — and without waiting for a response, he turned and walked away leaving Loos no choice but to follow. Once in the baggage area, Krans renewed his request to search Loos’s purse. Loos told him to “[g]o ahead,” and after Krans located the keys and asked to search the bags, Loos again responded with “[g]o ahead.” At no time was Loos advised of her right to leave or refuse consent.

Simply telling a police officer to “fe]o ahead” with a search is not, in and of itself, proof of voluntary consent. See United States v. Morgan, 270 F.3d 625, 631-32 (8th Cir.2001). Further, while Miranda warnings “are not required for consent to a search to be voluntary ... they can lessen the probability that a defendant was subtly coerced.” Lee, 356 F.3d at 834 (citing United States v. Payne, 119 F.3d 637, 644 (8th Cir.1997)); see also Buffkins v. City of Omaha, 922 F.2d 465, 469 (8th Cir.1990) (“Although a seizure does not automatically occur if an officer does not inform a detainee that he or she is free to leave, the absence of such notice may imply that the detainee is being restrained.”) (citation omitted). Here, it is undisputed Krans and Eberle did not provide Miranda warnings or advise Loos and Escobar they were free to leave.

We recognize the Supreme Court has held when officers have no basis for suspecting a particular individual, they may generally ask questions of the individual, see INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), ask to examine the individual's identification, id.; United States v. Mendenhall, 446 U.S. 544, 557-58, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and request consent to search his or her luggage, see Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). Police may not, however, convey a message that compliance with their requests is required. Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Accordingly, the Supreme Court has held “[w]hen a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion— albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper, 391 U.S. at 550, 88 S.Ct. 1788; see also United States v. Briley, 726 F.2d 1301, 1304 (8th Cir.1984) (“The misrepresentation may even invalidate the consent if the consent was given in reliance on the officer’s deceit.”) (citations omitted).

When Krans represented a drug-sniffing dog had alerted on the travel bags, he communicated to Loos and Escobar there was probable cause to search and they had no choice but to permit it.⁵ This fact, combined with the location of the search and the officers’ failure to advise Loos she had a right to refuse consent, convinces us the district court was not clearly erroneous in determining her consent was tainted. Loos’s consent, preceded closely by Krans’s false claim of legal authority, merely demonstrates she acquiesced to the search believing she had no choice. Further, we agree with the district court that Escobar’s consent to search his bag was similarly tainted by Krans’s misrepresentation about the drug dog’s positive alert. Escobar was seated in close proximity when Krans claimed a drug dog had confirmed the presence of drugs in Loos’s and Escobar’s bags. Escobar’s mere acquiescence to the search is demonstrated by his equivocal grant of consent: “Go ahead, you’re going to do it anyway. Just go ahead and search.” Finally, inasmuch as Escobar was arrested before his bag was searched, we find Eberle’s admonition that he did not have to consent was ineffectual.

Accordingly, the judgment of the district court is affirmed.

1 . The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska.

2 . We express no opinion about whether the removal of the bags from the bus and carrying them to the baggage area was supported by a reasonable articulable suspicion.

3 . Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4 . We agree with the district court's conclusion that although Krans was speaking specifically to Loos, Escobar was seated in close proximity and could clearly hear the statement.

5 . Our cases make clear a positive alert by a drug dog constitutes probable cause. See Brown, 345 F.3d at 580; United States v. Gomez, 312 F.3d 920, 925-26 (8th Cir.2002).