United States v. Melissa Ann Harvey, United States of America v. Lisa Marie Flagella

961 F.2d 1361, 1992 U.S. App. LEXIS 6912, 1992 WL 74628
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 16, 1992
Docket91-2773, 91-2922
StatusPublished
Cited by52 cases

This text of 961 F.2d 1361 (United States v. Melissa Ann Harvey, United States of America v. Lisa Marie Flagella) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Melissa Ann Harvey, United States of America v. Lisa Marie Flagella, 961 F.2d 1361, 1992 U.S. App. LEXIS 6912, 1992 WL 74628 (8th Cir. 1992).

Opinions

PER CURIAM.

Melissa Ann Harvey and Lisa Marie Flagella appeal from the district court’s denial of their motions to suppress evidence. We affirm.

I.

Harvey and Flagella were travelling across the country on a Greyhound bus. [1362]*1362When the bus stopped at the North Little Rock, Arkansas, Greyhound bus station for cleaning and refueling, the passengers were told that they could exit the bus. Harvey and Flagella and other passengers did so.

Two Little Rock police detectives were monitoring the bus station for illegal narcotics smuggling. Along with a narcotics-sniffing dog, named Jupp, they inspected the baggage area in the underbelly of the bus and found no narcotics. The detectives and Jupp then boarded the bus. According to one of the detectives, as Jupp was walking down the aisle he lifted “his head and ... sniff[ed] high” indicating “that the odor of narcotics [was] above his head level.” At that point, the detectives opened some of the doors to the overhead baggage area, removed some of the bags, placed them at Jupp’s level, and allowed Jupp to sniff them. Jupp “alerted” to two bags. The detectives then returned all of the bags to the overhead storage area and exited the bus.

The overhead baggage area was described as similar to those found on airplanes. Unlike airplanes, however, the baggage area is not compartmentalized; there are no inner walls dividing the baggage area into individual compartments. Thus, the overhead area is really one large compartment, with individual doors above the seats. These doors cannot be locked to the exclusion of other passengers.

Harvey, Flagella, and the other passengers then returned to their seats on the bus. Before the bus departed, the detectives re-boarded, retrieved one of the bags to which Jupp had alerted, and asked the owner to identify himself. Flagella admitted that it was her suitcase, whereupon the detectives asked her to take it and wait outside the bus. The detectives repeated the procedure with the second bag, which was claimed by Harvey.

Once off the bus, the detective asked for and received permission from Flagella to search her bag. As the detective reached for her suitcase, however, Harvey intervened and requested that the detectives first obtain a search warrant. Flagella agreed. The women were subsequently advised of their rights and transported to the police station.

Once at the police station, appellants were placed in an interview room and informed that a search warrant would be obtained. After waiting a short time, appellants consented to a search of their bags. Uneasy with this change in attitude, the officers asked their superior officer to enter the room and he did so. After being read their rights once again, both appellants consented to a search of their bags so that, in their words, they “could get out of the room.” The officers searched the bags and discovered that each bag contained approximately five pounds of marijuana.

Harvey and Flagella moved to suppress the marijuana on the ground that it was obtained in violation of their Fourth Amendment rights. The district court1 denied these motions, and Harvey and Flagella entered conditional pleas of guilty, subject to their right to appeal the denial of the motions to suppress. Fed.R.Crim.P. 11(a)(2).

II.

Appellants first argue that a dog sniff is a search and that some degree of individualized suspicion is required to satisfy the requirements of the Fourth Amendment. We disagree.

The Fourth Amendment protects the “right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (citations omitted). In United States v. Place, 462 U.S. 696, 103 [1363]*1363S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court stated that:

[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.

Id. at 707, 103 S.Ct. at 2644. Appellants contend that this language is mere dictum and thus has no bearing on the resolution of their appeal.

“Whether or not the statement in Place was a holding or dictum, the Supreme Court has clearly directed the lower courts to follow its pronouncement.” United States v. Beale, 736 F.2d 1289, 1291 (9th Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). In Jacobsen, 466 U.S. at 123, 104 S.Ct. at 1661, the Court clearly treated the language in Place as a holding: “the \Place\ Court held that subjecting luggage to a ‘sniff test’ by a trained narcotics detection dog was not a ‘search’ within the meaning of the Fourth Amendment.”

The essence of the Supreme Court’s expositions in Place and Jacobsen, which we apply here, is that the investigative technique employed here is not considered to be a “search” since (1) it discloses only the presence or absence of a contraband item, and (2) its use “ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.”

Beale, 736 F.2d at 1291 (quoting Place, 462 U.S. at 707, 103 S.Ct. at 2644).

We conclude that Jupp’s sniff did not constitute a search and thus did not implicate the Fourth Amendment. First, the canine sniff intruded upon no legitimate privacy interest because it could reveal nothing about noncontraband items. Jacobsen, 466 U.S. at 123-24, 104 S.Ct. at 1662. Second, the canine sniff did not require any contact with the owners of the unattended baggage.2 The canine sniff did not cause the appellants to be detained or inconvenienced, and there is no evidence that it caused any annoyance or embarrassment. Beale, 736 F.2d at 1291-92 (citations omitted). Third, defendants have no reasonable expectation of privacy in the ambient air surrounding their luggage, and that is all that Jupp invaded.

Appellants next argue that even if the canine sniff is not a search, the initial removal of their bags from the overhead baggage area, constituted a seizure. We disagree.

In Jacobsen, the court defined seizures of property as “some meaningful interference with an individual’s possessory interests in that property.” 466 U.S. at 113,104 S.Ct. at 1656.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. McKnight
2019 CO 36 (Supreme Court of Colorado, 2019)
Pueblo v. Díaz Medina
176 P.R. 601 (Supreme Court of Puerto Rico, 2009)
El Pueblo v. Díaz Medina Y Otro
2009 TSPR 138 (Supreme Court of Puerto Rico, 2009)
State v. Jardines
9 So. 3d 1 (District Court of Appeal of Florida, 2008)
Nelson v. State
867 So. 2d 534 (District Court of Appeal of Florida, 2004)
United States v. Terriques
211 F. Supp. 2d 1137 (D. Nebraska, 2002)
United States v. Augustine DeMoss
279 F.3d 632 (Eighth Circuit, 2002)
United States v. Demoss
279 F.3d 632 (Eighth Circuit, 2002)
State v. Van Cleave
2001 NMSC 031 (New Mexico Supreme Court, 2001)
People v. Ortega
34 P.3d 986 (Supreme Court of Colorado, 2001)
United States v. Nicholas Vasquez
213 F.3d 425 (Eighth Circuit, 2000)
United States v. Ernest E. Gwinn
191 F.3d 874 (Eighth Circuit, 1999)
United States v. Ernest Gwinn
Eighth Circuit, 1999
United States v. Quiroz
57 F. Supp. 2d 805 (D. Minnesota, 1999)
United States v. Bond
213 F.3d 840 (Fifth Circuit, 1999)
Green v. State
978 S.W.2d 300 (Supreme Court of Arkansas, 1998)
State v. Lee
715 So. 2d 582 (Louisiana Court of Appeal, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
961 F.2d 1361, 1992 U.S. App. LEXIS 6912, 1992 WL 74628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-melissa-ann-harvey-united-states-of-america-v-lisa-marie-ca8-1992.