United States v. Keith A. Va Lerie

385 F.3d 1141, 2004 U.S. App. LEXIS 21327, 2004 WL 2309270

Opinions

MCMILLIAN, Circuit Judge.

Keith A. Va Lerie (“defendant”) was charged by indictment in the United States District Court¹ for the District of Nebraska on one count of possession with intent to distribute 500 grams or more of a mixture containing cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1). Now before this court is an interlocutory appeal by' the government from an order of the district court granting defendant’s motion to suppress evidence obtained when defendant’s garment bag was searched while he was traveling by bus and stopped at a bus station. United States v. Va Lerie, No. 8:03CR23, 2003 WL 21956437 (D.Neb. Aug. 14, 2003) (memorandum and order) (hereinafter “District Court Order”). For reversal, the government argues that the district court (1) erred in holding -that defendant’s garment bag was “seized” within the meaning of the Fourth Amendment when the bag was removed from the bus and brought to a room in the rear baggage terminal for the purpose of seeking the owner’s consent to search the bag and (2) clearly erred in finding that defendant’s alleged consent to the search of his garment bag was not express and was not voluntarily given. For the reasons stated below, we affirm the order of the district court.

Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231. Jurisdiction is proper in this court based upon 18 U.S.C. § 3731. The notice of appeal was timely filed pursuant to Fed. R.App. P. 4(b).

Background

Defendant was indicted on January 23, 2003. On March 10, 2003, he filed his motion to suppress. The motion was submitted to a magistrate judge, who held an evidentiary hearing and permitted the parties to file post-hearing briefs. Following those proceedings, the magistrate judge issued a report and recommendation on June 10, 2003. United States v. Va Lerie, No. 8:03CR23, 2003 WL 21953948 (D. Neb. June 10, 2003) (hereinafter “Magistrate Judge’s Report”). In his report, the magistrate judge made the following findings of fact.

On December 23, 2002, defendant was traveling from Los Angeles, California, to Washington, D.C., on a Greyhound bus. The bus stopped for refueling at approximately 12:00 noon at the Greyhound bus station in Omaha, Nebraska. At that time, Investigator Alan Eberle of the Nebraska State Patrol (“NSP”) was at the Omaha Greyhound bus station performing duties for the NSP Commercial Interdiction Unit. While defendant’s bus was being refueled, Eberle looked in the lower luggage compartments of the bus. He noticed a newer-looking garment bag among three or four other bags inside one of the luggage compartments. That garment bag had a baggage ticket bearing an individual’s name but no telephone number. It had no additional handwritten name tag. Eberle ran a computer check of the claim number appearing on the baggage ticket and learned that the passenger, using the name “Valerie Keith,” had paid $164 in cash on the day of travel for a one-way ticket. Eberle then had NSP investigators remove the garment bag from the bus and take it into a room in the rear baggage terminal. Eberle had “Valerie Keith” or “Keith Valerie” paged over the intercom system with instructions to come to the ticket counter. When defendant responded, Eberle showed defendant his NSP badge and identified himself as a law enforcement officer. Eberle told defendant that he was not in trouble and not under arrest. Eberle asked defendant to produce his bus ticket and some identification, which defendant did. After confirming that the name on the ticket and identification matched the name on the garment bag, Eberle returned the ticket and identification to defendant. Eberle then led defendant to the room in the rear baggage terminal where defendant’s garment bag was being held. The room had two open doors, and inside the room were two or three officers. One of the officers in the room was Omaha Police Investigator Lut-ter. When asked if the garment bag was his, defendant confirmed that it was. Eberle told defendant that he was a narcotics investigator and that he was watching for people who might be transporting illegal drugs. According to Eberle, he asked defendant for permission to search the garment bag and defendant “made an affirmative verbal response to the request for consent to the search.” Magistrate Judge’s Report at 3.² Lutter searched the garment bag. The search took approximately one minute. During the search Eberle made a comment about the garment bag, and defendant responded that it belonged to a friend. Lutter found inside the garment bag five vacuum-sealed bags containing cocaine. Defendant was placed under arrest and taken to an NSP office where he was read his Miranda rights. Defendant declined to waive his Miranda rights, declined to be interviewed, and requested an attorney.³

The magistrate judge determined that, at the time the garment bag was removed from the bus and taken to the room in the rear baggage terminal, a Fourth Amendment seizure occurred in the form of an investigative detention. Magistrate Judge’s Report at 5-6. The magistrate judge nevertheless opined that Eberle had “the requisite level of reasonable articula-ble suspicion” to justify the seizure. Id. at 6. The magistrate judge also noted that “the removal of the bag was done in accordance to an understanding between Greyhound and the NSP to prevent passengers from walking into the refueling area.” Id. at 6. The magistrate judge concluded that, under the totality of the circum stances, no Fourth Amendment violation occurred as a result of the seizure of defendant’s garment bag. Id. at 6-7. The magistrate judge additionally concluded that defendant had voluntarily consented to the search of the garment bag. Id. at 8-9. The magistrate judge thus recommended denial of defendant’s motion to suppress physical evidence obtained as a result of the search of the garment .bag.

The parties filed objections to the Magistrate Judge’s Report.⁴ Regarding the seizure of the garment bag, the district court held: “the removal of the defendant’s bag .and its sequestration in a room of the bus terminal constituted an unconstitutional seizure in violation of the defendant’s Fourth Amendment rights because they occurred without consent, reasonable suspicion, probable cause, or a warrant.” District Court Order at 11. Regarding the voluntariness of defendant’s alleged consent to the search of the garment bag, the district court noted, among other "things, that defendant was a person of sufficient intelligence to give consent, the officers were not required to tell him that he could withhold consent, and Eberle was in plain clothes with no visible weapon; on the other hand, defendant was “alone, in a private room, with at least two armed police officers” and “[h]is bag was already in the possession of law enforcement officers” when he allegedly gave his consent for them to search it. The district court concluded that, under the totality of the circumstances, “defendant’s consent was not voluntarily given.” Id. at 14. Moreover, the district court noted that little time had transpired between the seizure of the garment bag and defendant’s consent, and there were no significant ’ intervening events. The district court held that, notwithstanding Eberle’s testimony that he was merely accommodating Greyhound’s request that they not bring passengers to the bus while it was parked in the refueling area, the government had not met its burden to prove that defendant’s consent was an independent act of free will which broke the causal connection between the constitutional violation and the consent that led to the discovery of evidence. Id. at 12-16. The district court thus concluded that the taint of the illegal seizure had not been purged. The district court granted defendant’s motion to suppress, and the government timely filed this interlocutory appeal.

Discussion

As a general rule, “[w]e review the district court’s decision to grant a suppression motion de novo while reviewing the underlying factual determinations for clear error.” United States v. Logan, 362 F.3d 530, 532 (8th Cir.2004) (citing United States v. Walker, 324 F.3d 1032, 1036 (8th Cir.2003) (Walker), cert. denied, 540 U.S. 898, 124 S.Ct. 247, 157 L.Ed.2d 178 (2003)). For purposes of the issues raised by the government in the present appeal, we review de novo the district court’s legal conclusions concerning whether a seizure has occurred within the meaning of the Fourth Amendment, and we review for clear error the district court’s factual findings regarding the nature of defendant’s alleged consent to the search. See, e.g., United States v. Smith, 260 F.3d 922, 924 (8th Cir.2001) (“We review the question of whether a seizure has occurred de novo and the district court’s determination of voluntariness for clear error.”) (citing United States v. Mendoza-Cepeda, 250 F.3d 626, 628 (8th Cir.2001)).

Property is “seized” within the meaning of the Fourth Amendment when there is “some meaningful interference with an individual’s possessory interests in that property.” United States v. Demoss, 279 F.3d 632, 635 (8th Cir.2002) (Demoss) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)); United States v. Riley, 927 F.2d 1045, 1047 (8th Cir.1991) (same). The government first argues that defendant’s garment bag was not “seized” in the constitutional sense when Eberle had the bag removed from a lower luggage compartment on the bus and taken to a room in the rear baggage terminal at the Omaha Greyhound bus station. For support, the government highlights Eberle’s testimony at the suppression hearing that, in order to accommodate Greyhound’s request not to have excess people in the refueling area, it had been NSP’s practice for over a year to have any suspicious bag found on a bus brought into the rear baggage terminal before an attempt was made to contact the owner. Eberle also testified that NSP had never previously been advised that their practice of bringing bags into the rear baggage terminal was unconstitutional. He stated that it was his understanding that, when an NSP officer removed a bag from a bus in this manner, the bag nevertheless remained in Greyhound’s custody and the officers were merely taking care of it.

The government further argues that there is no meaningful distinction — in terms of interference with an individual’s possessory interests — between removing a bag from a luggage compartment and setting it down in or near the bus and moving the bag from the bus to a location farther away. The difference, the government maintains, is merely a “geographical consideration.” Brief for Appellant at 10.

The government also suggests that the handling of luggage not in an individual’s actual physical possession is analogous to the handling of packages placed in the mail stream. Id. (citing United States v. Harvey, 961 F.2d 1361 (8th Cir.1992) {Harvey) (per curiam), cert. denied, 506 U.S. 883, 113 S.Ct. 238, 121 L.Ed.2d 173 (1992); United States v. Riley, 927 F.2d 1045 (8th Cir.1991)). Thus, in further support of its argument that no seizure occurred under the Fourth Amendment, the government cites Demoss and United States v. Gomez, 312 F.3d 920 (8th Cir.2002) {Gomez), as analogous mail stream cases. The government also cites, as factually similar, a Seventh Circuit case involving a bag that was searched during bus transit, United States v. Ward, 144 F.3d 1024, 1030-33 (7th Cir.1998) {Ward) (“Although [the officer] lacked a reasonable basis to ‘seize’ the bag ... we do not agree that the bag was in fact seized in a way that implicated [the defendant’s] Fourth Amendment interests .... We are talking now solely about the removal of the bag from the common luggage area of the bus.”).

The government sums up its argument as follows:

The investigators’ activities with the bag in the instant case to the point where they first discussed the bag with [defendant] in the terminal office was not a constitutional seizure because it in no way produced any meaningful interference with [defendant’s] possessory interest in the bag. Taking the bag from the refueling area to the baggage office and to then find and converse with the bag owner required no constitutional “reasonable suspicion” because no constitutional seizure is disclosed by these facts. This assertion- is buttressed by the testimony of Investigator Eberle to the effect that the officers were merely complying with Greyhound’s wishes, and that as far as Investigator Eberle was concerned the bag was still in the “custody” of Greyhound even when he removed it to the office in the terminal.

Brief for Appellant at 12.

We disagree with the government’s assertion that, in the present case, the officers’ handling of defendant’s garment bag, prior to the point at which Eberle asked defendant for consent to search the bag, “in no way produced any meaningful interference with [defendant’s] possessory interest in the bag.” Id. This court has made clear that neither the mere removal of an item from its ordinary stream of travel, nor the distance it is moved, disposes of the Fourth Amendment “seizure” issue. Our precedents establish that a Fourth Amendment seizure occurs when an official “exert[s] dominion and control over the [item] by deciding to go beyond a superficial inspection of the exterior of the [item] and to detain the [item] for further inquiry into characteristics that [cannot] be observed by merely holding the [item].” Gomez, 312 F.3d at 923 n. 2, cited in United States v. Morones, 355 F.3d 1108, 1111 (8th Cir.2004).

Defendant had a reasonable expectation of privacy in the contents of his garment bag. That is not to say that defendant reasonably could expect that no one would handle, observe, touch, or move his garment bag. A bus passenger who has left his or her bag in a common luggage compartment of a bus reasonably expects the bag to be subject to some degree of handling and movement by others. “Passengers have no objective, reasonable expectation that their baggage will never be moved once placed in an overhead compartment. It is not uncommon for the bus driver or a fellow- passenger to rearrange the baggage in the overhead compartment or to temporarily remove the baggage and place it in a seat or in the aisle in order to rearrange and maximize the use of limited compartment space.” Harvey, 961 F.2d at 1363-64 (removal of bag from overhead compartment of bus and placement in the aisle was not a seizure of the bag under the Fourth Amendment); accord ‘Ward, 144 F.3d at 1032 (mere removal of bag from common luggage area of a bus was not a seizure implicating Fourth Amendment interests); cf. Demoss, 279 F.3d at 635-36 (“While [defendant’s] expectation that the package would not be opened and searched en route was legitimáte, ... there could be no expectation that the package would not be handled or that its physical attributes would not or could not be observed.”).

However, a bus passenger traveling with luggage placed in a common compartment of the bus does not reasonably expect that his or her luggage will be physically removed from the bus without his or her knowledge and detained so that consent to a search of the luggage may be sought. In such a situation, a detention for the purpose of seeking consent to search is not materially different from a detention for the purpose of conducting a canine sniff. In either situation, the item in question is detained to pursue investigative measures beyond what reasonably should be expected by an individual having possessory interests in the item. Indeed, the Seventh Circuit’s decision in Ward, upon which the government relies, supports this view. In that case, the Seventh Circuit reasoned that the owner of a bag, which was being shipped by bus without any accompanying passenger, had no reasonable expectation that the bag, having been surrendered to the bus company for transport, would not be touched, handled, or even removed from the bus while en route to its destination; however, the court went on to hold that, when the officer — having unsuccessfully attempted to identify the bag’s owner — then decided to detain the bag for purposes of conducting a canine sniff, he did seize the bag within the meaning of the Fourth Amendment. Ward, 144 F.3d at 1033-34 (“[H]is initial decision to detain the bag for the canine sniff risked a delay for which the Fourth Amendment would require justification.”); cf. Walker, 324 F.3d at 1036 (“It is clear under our precedent that when [the postal inspector] moved the package to a separate room for a canine sniff, the package was seized for Fourth Amendment purposes.”) (citing De-moss, 279 F.3d at 636-37). We therefore hold in the present case that defendant’s garment bag was seized within the meaning of the Fourth Amendment when Eberle had the bag removed from the bus, taken to a room inside the rear baggage terminal, and detained while the officer endeavored to locate the bag’s owner and obtain consent to search the bag. Because there is no dispute in the present case that Eberle lacked reasonable suspicion to support a seizure of the garment bag if one occurred,⁵ we hold that the seizure violated defendant’s rights under the Fourth Amendment. The seizure of defendant’s garment bag without reasonable suspicion was unconstitutional notwithstanding the government’s claims that Greyhound had asked NSP not to bring passengers into the refueling area, that Eberle believed the bag remained in Greyhound’s custody at all relevant times, and that defendant was unaware that his garment bag was being removed from the bus and handled by the NSP officers.

The government further argues that the district court clearly erred in finding that defendant did not voluntarily consent to the search of his garment bag and that he also did not explicitly consent to the search. Brief for Appellant at 13 (quoting District Court Order at 14 (“Certainly the defendant did not explicitly consent to the search. Based on all these factors, I conclude that the defendant’s consent was not voluntarily given.”)). The government explains that it is separately challenging the district court’s failure to find express consent because “[cjlearly an explicit consent carries a presumption of voluntariness that might be harder to discern in an implicit consent.” Brief for Appellant at 16. However, regarding the district court’s separate adverse finding that defendant’s consent was not an independent act of free will, see District Court Order at 16, the government asserts:

The district court’s discussion of whether the defendant’s consent to search was a[n] “independent act of free will that broke the causal chain between the unconstitutional violation and the consent” is really irrelevant in light of the United States’ assertion that no unconstitutional seizure took place. The only question presented is whether the consent — whether it be the implicit consent found by the court below or the explicit consent advanced by the United States on this appeal — was voluntary in light of the totality of the circumstances.

Brief for Appellant at 20-21.

In other words, the government’s whole argument vis-a-vis the alleged con sent to the search of the garment bag is premised upon the assumption that, when defendant’s garment bag was removed from the bus and placed in the room in the rear baggage terminal, no seizure occurred within the meaning of the Fourth Amendment. The government has thus waived the argument that defendant’s consent purged the taint of the illegal seizure if an illegal seizure occurred.⁶

As the district court explained, the law is well-established that, if the garment bag was seized in violation of the Fourth Amendment, the evidentiary fruits of that seizure must be suppressed unless the government, in relying upon defendant’s consent to the search, can prove (1) that the consent was voluntary and (2) that it was an independent act of free will that broke the chain of causation between the illegal seizure and the consent that permitted the discovery of evidence. See District Cburt Order at 12-14 (“The challenged evidence is admissible if 1) the consent was voluntarily given, and 2) the consent was ‘an independent act of free will.’”) (citing United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir.1993)); see also United States v. Becker, 333 F.3d 858, 861-62 (8th Cir.2003) (“Even if [the defendant’s] consent to the search was voluntary, we must also consider, for purposes of the Fourth Amendment, whether [the defendant’s] consent was given in circumstances that render it an independent, lawful cause of [the officer’s] discovery of the methamphetamine”)⁷; United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.1994) (where the defendants were detained in violation of the Fourth Amendment, “[t]he further question [was] whether [one of the' defendant’s] consent, found to be voluntary by the District Court, was ‘sufficiently an act of free will to purge the primary taint.’ ”) (citing Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)), cert. denied, 514 U.S. 1134, 115 S.Ct. 2015, 131 L.Ed.2d 1013 (1995); Brown v. Illinois, 422 U.S. 590, 601-02, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (“[E]ven if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains. In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ ”).

The government bears the burden to prove that defendant gave consent that was both voluntary and an independent act of free will. See Brown v. Illinois, 422 U.S. at 604, 95 S.Ct. 2254 (“And the burden of showing admissibility rests, of course, on the prosecution.”). In light of the government’s tactical decision in the present interlocutory appeal not to challenge the district court’s adverse finding that defendant’s alleged consent was not an independent act of free will, the exclusionary rule applies. Accordingly, we need not consider whether the district court clearly erred in its findings concerning the voluntariness of defendant’s alleged consent.

Conclusion

The order of the district court granting defendant’s motion to suppress is affirmed.

Footnotes

1

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

2

. However, when Eberle later filled out a police report concerning the incident, he provided no details about what defendant said to give consent to the search of the garment bag. Magistrate Judge’s Report at 3.

3

. After defendant expressly declined to waive his Miranda rights and requested an attorney, Eberle and Lutter continued to press him to cooperate. Eberle told defendant that he (defendant) "would probably be federally prosecuted if he did not cooperate and possible consequences would ensue”; when defendant expressed fears about cooperating, Lutter stated that "in his (Investigator Lutter's) extended experience, he had never had an informant or cooperative be injured as a result of [his or her] cooperation.” Magistrate Judge’s Report at 3-4. In his motion to suppress, defendant sought suppression of all statements he made after invoking his Miranda rights. The government argued that, notwithstanding the admitted Miranda violation, the statements in question should nevertheless be admissible to impeach defendant. The magistrate judge rejected the government's argument and recommended suppression of defendant’s statements. Id. at 10-11. The government objected to that aspect of the magistrate judge’s report and recommendation. On review, the district court held that the statements were "inadmissible at trial for any purpose, including impeachment.” District Court Order at 16-17. The government has not appealed that ruling.

4

. Defendant objected to, among other aspects of the Magistrate Judge's Report, the conclusions that the seizure of the garment bag was based on articulable suspicion, that the seizure was reasonable, that he gave consent to the search of the garment bag, and that such consent, if given, was valid. The government objected to the magistrate judge's report insofar as it ''denie[d] the use of defendant's statements for impeachment purposes should the defendant testify at trial.” See Original U.S. District Court File (Documents # 20 and # 22). On review, the district court additionally addressed the question of whether a Fourth Amendment seizure had occurred as a result of the garment bag being removed from the bus and detained in the room in the rear baggage terminal, even though the government did not specifically object to that aspect of the Magistrate Judge's Report.

5

. The government expressly declines to challenge the district court’s adverse holding that Eberle lacked reasonable suspicion to support a seizure of the garment bag if one occurred when the bag was removed from the refueling area and brought to the rear baggage terminal. See Brief for Appellant at 5 ("[T]he United States does not advance the proposition that there was reasonable suspicion to remove the garment bag from the area where the bus was being refueled to the office in the bus terminal itself.”) (emphasis original).

6

. Just as the government has made the tactical decision not to challenge the district court’s lack-of-reasonable-suspicion holding in this interlocutory appeal, see supra note 5, so too has the government decided not to challenge the district court's adverse finding that defendant’s alleged consent was not an independent act of free will that broke the causal chain between the unlawful seizure and the alleged consent leading to the search of the garment bag.

7

. Regarding this second factor—that is, whether the consent was an independent act of free will—this court further explained: “In determining whether the taint is purged from evidence seized during the allegedly unlawful detention, we consider the following factors: (1) the temporal proximity between the illegal search or seizure and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” United States v. Becker, 333 F.3d 858, 862 (8th Cir.2003) (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d416 (1975)).