Opinion
8:03CR128
November 18, 2003
MEMORANDUM AND ORDER
Introduction
The defendants are charged with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1) and with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1). The defendants filed motions to suppress evidence resulting from the seizure and search of their luggage at the Greyhound bus station on February 24, 2003. Magistrate Judge Thalken conducted an evidentiary hearing on the defendants' motions, Filing Nos. 16 and 18, and issued a report and recommendation to the court, Filing No. 32, in which he recommended that the court deny the motions. The defendants filed objections, Filing Nos. 36 and 38, to the report and recommendation, along with supporting briefs, Filing Nos. 37 and 39.
This court agreed with Magistrate Judge Thalken's analysis and conclusions relating to the encounter and consent to search the luggage. See Filing No. 41, Memorandum and Order ("Mem."). However, the court also entertained a late objection from the defendants, Filing No. 40, claiming an illegal seizure of the defendants' luggage. Because the evidence offered at the suppression hearing was insufficient to resolve that issue, the court ordered an evidentiary hearing and further briefing. See Mem. at 8-9. The parties filed supplemental briefs, Filing Nos. 45, 47, and 54, and the court conducted an evidentiary hearing on October 9, 2003. Upon reviewing the entire record, the party's supplemental briefs, and the evidence adduced at both hearings, the court finds the seizure of luggage violated the defendants' Fourth Amendment rights and all subsequent evidence resulting from the seizure should be suppressed.
Background
The facts of the case are contained in this court's previous order, Mem. at 2-5, and more extensively in the magistrate's report and recommendation, Filing No. 32 at 1-9. For the most part, the parties do not contest the factual issues leading to the seizure of the luggage. Accordingly, the court incorporates the facts previously set forth and will forgo a lengthy rehearsal of the facts.
Briefly, the evidence adduced at the hearing shows that on February 24, 2003, Investigators James Krans (Krans) and Alan Eberle (Eberle) of the Nebraska State Patrol were involved in interdiction duties along with other members of the Commercial Interdiction Unit at the Omaha Greyhound bus station. The investigators were inspecting the luggage bays of a bus originating from Los Angeles which had stopped in Omaha for refueling. During their inspection, Krans noticed two newer, soft-sided bags that had been locked with larger-than-normal padlocks. The investigators checked the claim tags attached to the luggage and observed the name Vicki Loos on Greyhound-generated tags on both bags and Jose Escobar's name on a handwritten tag on one of the bags. Based on this information, the investigators attempted to run a computer check for additional information about the bags and the affiliated passengers. The computer check was unsuccessful, however, and the investigators had Loos and Escobar paged.
Loos responded to the page immediately. Krans identified himself to her as a police officer. Krans explained that Loos was not under arrest and not in any trouble, but that he would like to talk with her. According to Krans, Loos responded that would be fine and appeared to become nervous. Krans asked Loos for identification. Loos turned and walked towards the table where she had been sitting prior to being paged, while Krans followed. Shortly afterward, Eberle followed and confronted Escobar who was also at the table. Loos retrieved her licence from her purse and handed it to Krans. Krans then lied to Loos, telling her that a drug dog had indicated on her luggage. Krans questioned her about her purposes for traveling and about her luggage. Krans inquired about the padlocks on her luggage and Loos began to rummage through her purse for the keys. During Krans's exchange with Loos, Eberle was conducting a similar inquiry with Escobar.
Krans asked Loos if she would accompany him to the baggage area to identify her luggage. Loos followed Krans silently, and Eberle and Escobar followed shortly afterwards. Eberle contacted Investigator Plowman (Plowman) and asked him to retrieve the bags from the bus. Plowman retrieved the bags and met Eberle, Krans and the two defendants in the baggage area. Once inside the baggage area, Krans asked Loos if he could search her purse to find the key to the locks. Loos said, "Go ahead," and Krans searched the purse and acquired the keys. Locating one of the keys, Krans asked Loos if it was the key to the locks on the luggage and she replied that it was. Krans asked Loos if he could search her bag and she again said, "Go ahead." Escobar also gave consent to Eberle to the search of the other bag. However, before this search was conducted, Krans had uncovered cocaine in Loos's bag. Loos and Escobar were then placed under arrest and Escobar's bag was searched, uncovering more cocaine.
Discussion
Seizure
The government claims that bus passengers do not have an objective, reasonable expectation that their baggage will never be moved once placed in luggage bays on the underside of a bus. The government also claims that the bags' removal does not amount to meaningful interference with Loos and Escobar's possessory interests and thus is not a seizure. The court disagrees.
The seizure in this case is markedly different from "plain view" or "public observation" cases where police officers asserted only a little dominion or control over a package or luggage. See United States v. Harvey, 961 F.2d 1361 (8th Cir. 1992) (holding that after dog indicated to overhead compartment, officers did not seize bag by removing it and placing it on floor to facilitate another sniff); United States v. Demoss, 279 F.3d 632, (8th Cir. 2002) (package not seized by lifting it off a conveyor to observe outside characteristics). In the present case, the interdiction officers removed the bag from the bus, separated it from the rest of the luggage, and carried it into the baggage area. This degree of dominion and control constitutes a meaningful interference and is a seizure under the Fourth Amendment.
The Fourth Amendment protects an individual's privacy interests in the contents of personal luggage. United States v. Place, 462 U.S. 696, 707 (1983); United States v. Gwinn, 191 F.3d 874, 878 (8th Cir. 1999). Bus passengers obviously expect that their checked bags will be handled. Bond v. United States, 529 U.S. 334, 338 (2000). Consequently, not every interference with an individual's luggage constitutes a search or a seizure within the meaning of the Fourth Amendment. Gwinn, 191 F.3d at 878. But a bus passenger may still expect luggage will not be subjected to interference more intrusive than the incidental touching or moving that accompanies the rearranging of luggage in the baggage compartment under the bus or its transfer to another bus's baggage compartment. United States v. Va Lerie, 2003 WL 21956437 (D. Neb 2003). See also Bond, 529 U.S. at 339 (exploratory feeling of bag deemed a search); Demoss, 279 F.3d at 636 (moving the package away from conveyor belt to conduct a canine sniff constitutes a seizure). A bus passenger reasonably expects his or her baggage will not be carried away and sequestered by interdiction officers at connecting bus stations. Here, the interdiction officer removed the luggage from the bus, separated from the rest of the baggage, and carried into the private baggage area. By removing the luggage, Investigator Plowman exerted dominion and control over it. Consequently, it was seized for Fourth Amendment purposes. Id. See also Florida v. Royer, 460 U.S. 491, 503 (1983) (finding luggage seized when officers retrieved checked luggage from an airline).
The Eighth Circuit's decisions in Terriques and Demoss are particularly illustrative of the present situation. In both cases, the court held it was not a seizure to lift a package off a conveyor belt to observe its outside characteristics. United States v. Terriques, 319 F.3d 1051 (8th Cir. 2003); Demoss, 279 F.3d at 635-637. However, once the package was moved away from the conveyor belt and detained, investigators exhibited dominion and control over the package, and it was seized for Fourth Amendment purposes. Demoss, 279 F.2d at 635-637(seizure supported with reasonable suspicion); Terriques, 319 F.3d at 1056 (same). Similarly, interdiction officers are allowed to open up the luggage bay doors and adjust the luggage inside the luggage bay to make observations of superficial characteristics. Thus, adjusting the bag to check claim tags and make other exterior observations does not constitute a seizure. However, the act of physically removing a bag from the rest of the luggage and then taking it into a baggage area for identification and possible search is an exertion of dominion and control over the bag that constitutes a seizure.
Reasonable Suspicion
In deciding the degree of the Fourth Amendment violation, the court must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interest can support a seizure based on less than probable cause.Place, 462 U.S. at 703. In the Va Lerie decision, this court noted that based on the growing number of cases involving interdiction activities at the Omaha bus station, the heightened security measures imposed on air travel in the aftermath of the September 11 attacks apparently have forced drug traffickers to rely on buses. See Va Lerie, 2003 WL 21956437 at 6. Without a doubt, the government has a strong interest in monitoring and investigating buses for possible drug traffickers. If the luggage detention is minimal, sequestering a bag for a canine sniff or for identification is not so intrusive on an individual's Fourth Amendment interests that probable cause is required. Here, the detention of Escobar and Loos's luggage would not have violated their Fourth Amendment rights had the investigators had reasonable suspicion that the bags contained drugs. However, the facts available to the investigators at the time the bag was retrieved did not amount to reasonable suspicion. Hence, detention was not justified.
Detention of luggage requires either the owner's consent or reasonable suspicion supported by articulable objective facts indicating that the luggage contains contraband. United States v. Tillman, 81 F.3d 773, 775 (8th Cir. 1996). Without at least reasonable suspicion, officers may not even temporarily seize a person's luggage. United States v. O'Neal, 17 F.3d 239, 242 (8th Cir. 1994). Determined from the totality of the circumstances, "[r]easonable suspicion must derive from more than an `inchoate and unparticularized suspicion or "hunch."'" United States v. Green, 52 F.3d 194, 198 (8th Cir. 1995) (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)). "Conduct typical of a broad category of innocent people provides a weak basis for suspicion." United States v. Weaver, 966 F.2d 397, 394 (8th Cir. 1992).
Initially the "indicators" that raised Krans and Eberle's suspicions were: 1) the bags were from Los Angeles, a "source city," 2) they appeared to be newer bags, 3) the bags had larger than normal locks, 4) one of the tags was missing a phone number, and 5) the bags were not overly packed. The officers' suspicions were heightened when they discovered after a brief interaction with the defendants that G) their tickets had been purchased with cash, and 7) purchased on the same day of travel. Lastly, both investigators testified that Loos became increasingly nervous throughout the encounter.
Suppression motions concerning interdiction units at airport, train, and bus terminals are increasingly common. The typical scenario involves an officer becoming suspicious due to "indicators" exhibited by a person or a piece of luggage. Based on these indicators, the officer instigates a consensual encounter, explaining to the person that he or she is not in trouble but that the officer would like to talk to them. After the introduction, the officer usually begins a brief interrogation, which eventually leads to a request for consent to search. The problem with this scenario, of course, is that the "indicators" which interdiction officers are using are typical of a broad category of people and do not always provide a basis for reasonable suspicion or the detention. Green, 52 F.3d at 198.
This court has held these "indicators" are too generalized to indicate criminal activity, much less to amount to reasonable suspicion the passengers are transporting narcotics. See Va Lerie, 2003 WL 21956437; United States v. Winborn, 2002 WL1484489 (D. Neb 2002); United States v. Shelton, 2002 WL1792087 (D. Neb 2002). Similarly, the Eighth Circuit has consistently found detentions based on interdiction "indicators" unjustified due to a lack of reasonable suspicion. See United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989); United States v. Fletcher, 91 F.3d 48, 51 (8th Cir. 1996); United States v. Eustaquio, 198 F.3d 1068, 1071 (8th Cir. 1999); United States v. Jones, 254 F.3d 692, 697 (8th Cir. 2001); O'Neal, 17 F.3d at 242; Green, 52 F.3d at 200.
Six of the "indicators" that the investigators here found relevant — source city, cash purchase, purchase on the same day of travel, newer bag, under-packing, and uncompleted claim tags — are commonly found in the above-cited cases but are generally not given much weight due to their innocent character. However, the size or unusual nature of the locks does not immediately suggest that a bag contains drugs. Factors like this that do not in any way indicate criminal activity have no role in assessing the validity of an investigatory stop. Green, 52 F.3d at 198. Although an officer could assume the locks were placed there for greater security to hide contraband, an equally plausible assumption is that the original locks were lost or that the luggage was sold without locks and the larger locks acquired later.
The only factor that might suggest criminal activity is Loos's growing nervousness throughout the encounter. However, a suspect's nervousness, by itself, has been widely scrutinized as a factor for developing reasonable suspicion. See United States v. Beck, 140 F.3d 1129, 1139 (8th Cir. 1998) (finding that suspicion associated with nervous behavior is at best minimal); White, 890 F.2d at 1418 (finding that becoming nervous when confronted by officers is not uncommon); Reid v. Georgia, 448 U.S. 438, 441 (1980) (finding that nervous conduct does not support a finding of reasonable suspicion). Given that Officer Krans told Loos a canine had indicated to her luggage, her nervousness is even less suspicious.
Whether these facts "amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances." United States v. Halls, 40 F.3d 275, 276 (8th Cir. 1994). In assessing whether the requisite degree of suspicion exists, the court must determine whether the facts collectively establish reasonable suspicion. Beck, 140 F.3d at 1136. "A combination of wholly innocent factors cannot combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation." Id. The factors giving rise to the investigators' suspicions are typical of the innocent behavior of a broad category of people. When considered under the totality of the circumstances, the investigators' observations did not amount to reasonable suspicion and could not justify the detention of the bag.
Consent
Investigators Krans and Eberle asked Loos and Escobar if they would accompany them to the baggage area to identify their luggage. Both defendants responded by silently following the officers into the luggage area. Plowman did not retrieve the luggage from the bus until after Loos and Escobar were asked and had agreed to identify their luggage. Although the parties did not raise the issue, the defendants' actions might justify the seizure on a basis of implied consent. See United States v. Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993) (consent is measured by what a typical reasonable person would have understood by the exchange between the officer and the suspect). However, the coercive conduct of the investigators precludes the court from finding that consent was given voluntarily.
Without reasonable suspicion, the investigators need Loos and Escobar's consent to justify the detention of their luggage. Tillman, 81 F.3d at 775 (requiring consentor reasonable suspicion to detain a person's luggage); Va Lerie, 2003 WL 21956437 at 6 (seizure violates Fourth Amendment rights if it occurs without consent, reasonable suspicion, probable cause, or a warrant). The test for determining the validity of consent is whether the consent is given voluntarily and without coercion. United States v. Briley, 726 F.2d 1301 (8th Cir. 1984). Consent is voluntary if it is the "product of an essentially free and unconstrained choice" and not' the product of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 225, 227 (1973). The court must inquire "whether the officers did anything to affirmatively communicate to the defendant that she was not free to terminate the encounter or to refuse the consent request." United States v. Zamoran-Coronel, 231 F.3d 466, 469 (8th Cir. 2000). When examining the officers' conduct in obtaining consent, the court may find their misrepresentation and deception to be evidence of coercion in a totality of the circumstances analysis. United States v. Carter, 884 F.2d 368, 375 (8th Cir. 1989); United States v. Briley, 726 F.2d 1301, 1304 (8th Cir. 1984). If the consent is given in reliance on the officer's deceit, the misrepresentation may invalidate the consent. Id.
Krans and Eberle asked Loos and Escobar if they would identify their luggage. The defendants responded by silently following the investigators to the back room. Even if these actions do constitute a consent request and subsequent consent, the implied consent is invalidated due to the coercive conduct of the investigators. Before asking Loos to identify her luggage, Krans lied to Loos and told her that a drug dog had indicated to her luggage. A reasonable person would not feel free to refuse an officer's request to identify his or her baggage if told that a canine had indicated towards it. In a legal sense, a statement that a drug dog has indicated to luggage is the same as stating there is probable cause that the luggage contains contraband and is subject to seizure. United States v. Gomez, 312 F.3d 920, 925-926 (8th Cir. 2002) (dog's indication alone is enough to establish probable cause and support the issuance of a search warrant); United States v. Brown, 345 F.3d 574, 580 (8th Cir. 2003) (once dog alerted there was probable cause van contained drugs). An officer's claim of authority to seize is in effect a claim that the person does not have a right to resist the seizure. United States v. Allison, 619 F.2d 1254, 1263 (8th Cir. 1980). "The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent." Holloway v. Wolff, 482 F.2d 110, 115 (8th Cir. 1973).
Typically the government shoulders the burden of proving consent and its voluntariness under the totality of the circumstances. United States v. Severe, 29 F.3d 444, 446 (8th Cir. 1994). Neither the government nor the defendants argued this issue. Since the court is ruling out a valid consent due to the coercive nature of the investigators' actions, the court is not required to determine whether a request to identify luggage and an affirmative response amount to a request for consent and subsequent consent for the seizure.
Although Krans directed this statement at Loos while Eberle was speaking with Escobar, its coercive effect is equally applicable to both defendants. Both defendants were seated at the same table while the investigators were speaking with them. Given the proximity of the parties, Escobar could clearly hear the statement. Consequently, the misrepresentation would have an equally coercive effect on his consent.
Investigator Krans's lie relayed a message that Loos and Escobar's consent was not required for the investigators to seize their luggage. Once the misrepresentation had been made, the implied consent (silently getting up and following the officers) was an acquiescence to the investigators' claim they had the legal right to retrieve and detain their luggage. Id. The defendants agreed to identify their bags in reliance on the investigators' deceit. Briley, 726 F.2d at 1304. The coercive nature in which the investigators obtained access to and then searched the luggage precludes a finding of voluntary consent. See Bumper v. North Carolina, 391 U.S. 543 (consent invalidated where officer claimed to have a warrant to search a house and did not have one); Holloway, 482 F.2d (same). Accordingly, the court is unable to justify the seizure based on implied consent.
The court's finding is that Krans's misrepresentation overstated the investigator's authority, effectually telling the defendants that their consent was not required and they did not have a right to resist the seizure. Informing a suspect of the right to refuse consent is generally not required. Schneckloth, 412 U.S. at 231. However, an officer cannot make misrepresentations that a suspect does not have that right. See id. at 229 (requirement of a voluntary consent reflects a fair accommodation of the constitutional requirements involved). The court distinguishes this case from cases dealing with misrepresentations leading to confessions. Typically misrepresentations by officers do not make a statement per se involuntary. Krimmel v. Hopkins, 44 F.3d 704. 709 (8th Cir. 1995); Fittie v. Solem, 775 F.2d 933, 945 (8th Cir. 1985). The misrepresentations in these scenarios typically entail promises of leniency or suggestions of possible sentences or evidence against the suspect. See United States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir. 2002) (promise of leniency, expressed disbelief in suspect's statements or lies to the accused about evidence against him do not necessarily render a confession involuntary); United States v. Astello, 241 F.3d 965, 968 (8th Cir. 2001). However, law enforcement is not allowed to make misrepresentations about a suspect's constitutional rights. Miranda's purpose is to prevent this type of coercion by requiring every suspect to be informed of his or her constitutional rights. See Miranda v. Arizona, 384 U.S. 436, 476 (1966) (any evidence that the accused was threatened, tricked, or cajoled into a waiver will show that the defendant did not voluntarily waive the privilege).
Attenuation
After the illegal seizure of the luggage, Loos and Escobar consented to the search of their luggage. In the previous order, the court found that both defendants' consent was voluntary. See Filing No. 41 at 8. Accordingly, admissibility is dependent on whether the defendants' voluntary consent was sufficient to purge the taint of the illegal seizure under the principles of Brown v. Illinois, 422 U.S. 590 (1975).
See United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993) (stating that admissibility turns on a two-pronged inquiry: 1) whether consent was voluntarily given, and 2) whether it was an independent act of free will).
In order to admit the fruits of the investigators' search, the government must show Loos and Escobar"s consent was an intervening independent act of free will sufficient to purge the primary taint of the unlawful invasion. Id. at 598 (citing Wong Sun v. United States, 371 U.S. 471, 486 (1963)). The question is whether the evidence has come about by exploitation of the primary illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id.
In determining whether the taint has been sufficiently attenuated, the court must consider three factors: 1) the temporal proximity of the seizure and the consent, 2) the presence of intervening circumstances, and 3) the purpose and flagrancy of the official misconduct. Id. at 603-04. See also United States v. Moreno, 280 F.3d 898, 900 (8th Cir. 2002). The government bears the burden to show that the causal connection between the illegal seizure and the consent had been broken. Brown, 422 U.S. at 604. Under the circumstances of this case, the government is unable to carry this burden.
After agreeing to identify their bags, Loos and Escobar were escorted back to the luggage area. Within a minute Plowman arrived with their luggage. After already inquiring about the key to the luggage, Krans asked Loos for permission to look through her purse to find the key and Loos agreed. Krans located the key, held it up to her face, and asked if he could search her luggage. Loos consented to the search. During the interaction between Krans and Loos, Eberle was asking Escobar for permission to search his luggage. Escobar consented by saying, "Go ahead, you're going to do it anyway. Just go ahead and search." Eberle explained to Escobar that he did not have to let the officers search. However, Krans had already received consent from Loos and began to search her bag.
Under these circumstances, the Brown factors all weigh in favor of exclusion. Similar to the events described in Va Lerie, the temporal proximity, lack of intervening factors, and purpose of the investigators' conduct all support a finding that the consent was not an independent act of free will. Consent to search was given within minutes of the bags' removal. The actions of Krans and Eberle support the causal connection between the illegal seizure and the consent rather than attenuate it. Immediately after Loos and Escobar followed the investigators back to the baggage area, Krans asked to look in Loos's purse for the key, removed it, and asked for consent to search the baggage. According to the record, these are the only events in between the seizure and the consent. Eberle's testimony that he informed Escobar that he did not have to consent would be a consideration. However, it 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.
As in Va Lerie, the investigators' clear purpose was to gain consent from Loos or Escobar and search their bags. See Va Lerie, WL 2003 21956437 (decision to seize and sequester was motivated by a desire to find evidence despite the lack of a search warrantor probable cause) (citations omitted). After briefly asking them for identification and their travel itinerary, Krans lied to Loos about the drug dog and asked for the keys to the luggage. When she didn't provide them, Krans asked her to accompany him back to the baggage area to identify her luggage. The interaction between Eberle and Escobar was similar. The pretextual nature of the officers' request to identify their luggage is apparent considering that Loos and Escobar's names were on the claim tags and the investigators already knew to whom the luggage belonged. Once in the baggage area, albeit with consent, Krans asked Loos to go through her purse, went through it, found the key, put it up to her face, and asked her for consent to search. Clearly, the investigators' motives were to get both defendants in the baggage area, with their luggage, receive consent, and search.
These facts can only support a finding Loos and Escobar's consent to search their luggage was obtained by exploitation of the illegal seizure. The subsequent consent is not sufficient to purge the taint of the illegal seizure. Accordingly, the defendants' motions to suppress should be granted.
IT IS ORDERED:
1. The objections, Filing Nos. 36, 38 40, to the report and recommendation, Filing No. 32, are sustained;
2. The factual background of the report and recommendation, Filing No. 32, is adopted, but the report is not adopted in all other respects; and
3. The defendants' motions to suppress, Filing Nos. 16 and 18, are sustained.