Opinion
8:03CR23
August 14, 2003
Introduction
Before me are the objections of both the government and the defendant, Filing Nos. 20 and 22, to Magistrate Judge Thalken's report and recommendation, Filing No. 19. The defendant contends that Magistrate Judge Thalken erred in finding that 1) the seizure of the defendant's garment bag was reasonable, and 2) the defendant consented to the search of the bag. The government objects to Magistrate Judge Thalken's conclusion that the defendant's statements were involuntary and hence may not be used for impeachment purposes at trial.
I have conducted a careful de novo review of the record pursuant to 28 U.S.C. § 636(b)(1)(A) and NELR 72.3(d), including the transcript of the suppression hearing, Filing No. 17 (hereafter, TR). I find that the defendant's objections should be sustained. I also find that the government's objection should be overruled.
Background
The magistrate judge's statement of the events leading to the defendant's arrest is detailed and accurate, so I need not engage in a lengthy recitation of the facts. Briefly, on
December 22, 2002, Nebraska State Patrol Investigator Eberle and other officers were engaged in interdiction duties at the Greyhound Bus station in Omaha. As Eberle examined the luggage stowed in a compartment under a bus from Los Angeles that had stopped in Omaha for refueling, he observed a newer black garment bag with a Greyhound baggage ticket indicating that the bag had been put on the bus in Los Angeles and was headed to Washington, D.C. The baggage ticket had no phone number, nor did the bag have a handwritten name tag.
Inside the terminal, Eberle had the claim number on the baggage ticket checked on Greyhound's computer system. The name associated with the bag was "Valerie Keith." Eberle learned that a one-way ticket had been purchased on the same day of travel. These factors suggested to Eberle that the bag might contain contraband. He therefore directed NSP officers to remove the bag from the bus and to bring it inside to the rear baggage terminal.
Officers then paged both "Valerie Keith" and "Keith Va Lerie" over the intercom. The defendant came to the ticket counter. Eberle testified that he identified himself, explained to the defendant that he was not under arrest or in trouble, and asked if the defendant would speak with him. The defendant agreed to speak to Eberle and gave Eberle his identification card and ticket when Eberle asked for them. Eberle returned them, then asked the defendant to accompany him to the rear baggage terminal. The defendant followed Eberle to the room, where two or three other officers, including Omaha Police Investigator Lutter, were waiting with the garment bag.
Eberle testified that when asked, the defendant admitted that the garment bag belonged to him. Eberle told the defendant he was investigating contraband being transported on buses from Los Angeles to the East Coast and asked the defendant for consent to search the garment bag. Eberle testified that the defendant consented. Investigator Lutter then searched the garment bag and found five vacuum-sealed bags of cocaine. During the search, the defendant allegedly told Eberle that the bag belonged to a friend.
The officers arrested the defendant. Eberle later gave the defendant his Miranda rights at a Nebraska State Patrol office using a Nebraska State Patrol advice of rights form. Eberle then asked the defendant to waive his rights and to allow Eberle to interview him. The defendant refused to sign the form and asked for an attorney. Eberle told the defendant he wanted to find out where and to whom the cocaine was headed so law enforcement could prepare to intercept the intended recipient. He also told the defendant that he likely would be federally prosecuted and that possible consequences would ensue. The defendant told Eberle he was concerned for his safety and still wanted an attorney. Investigator Lutter told the defendant that in his experience, no informant or cooperating witness had ever been injured as a result of cooperating. The defendant again expressed his fear of the people he was dealing with and again requested an attorney.
At the suppression hearing, the government conceded that the defendant's statements made during the interview could not be used in the case-in-chief, but asked that the statements be allowed for impeachment purposes.
Legal Analysis A. Seizure of the Garment Bag
The magistrate judge found that the officers' removal of the defendant's garment bag to the rear baggage terminal was not unreasonable. The magistrate judge observed that while the defendant may have had "a reasonable expectation that the bag would not be turned over to police investigators and subjected to a search , there is no legitimate expectation that characteristics on the outside of the bag would not be observed by law-enforcement investigators." Filing No. 19, Report and Recommendation at 6. The defendant contends that the removal of the bag was an unjustifiable seizure because 1) the defendant was not party to any understanding between interdiction officers and Greyhound that officers would remove baggage from the refueling area before questioning passengers about the baggage, and 2) in any event, the interdiction officers did not have articulable suspicions that criminal activity was afoot.
The Fourth Amendment of the Constitution forbids the seizure of personal property absent probable cause or at least reasonable suspicion. United States v. Place, 462 U.S. 696, 701 (1983). A seizure of property occurs when there is some "meaningful interference with an individual's possessory interests in that property." United States v. Jacobson, 466 U.S. 109, 113 (1984); United States v. Demoss, 279 F.3d 632, 635 (8th Cir. 2002). The question here, of course, is whether a seizure occurred and, if so, when.
Based on the facts before me, I can only conclude, for the reasons discussed below, that a seizure occurred when the officers removed the defendant's garment bag from the bus and took it inside the terminal. Since the officers at that point did not have probable cause, and only arguably had reasonable suspicion, the seizure was unlawful. Passengers on a bus unlike airline passengers — still retain some expectation of privacy in their baggage that the court is required to protect. I therefore find that this seizure and the subsequent search were unconstitutional invasions of the defendant's Fourth Amendment rights. The Eighth Circuit has ruled that travelers have "a privacy interest in the contents of their personal luggage that is protected by the Fourth Amendment." United States v. Gwinn, 191 F.3d 874, 878 (8th Cir. 1999) (emphasis added) (finding that an interdiction officer's "calculated and thorough squeezing and manipulation" of the exterior of a bag on a train's overhead baggage rack was an unreasonable search). To establish a legitimate expectation of privacy, a traveler must demonstrate that he or she had a subjective expectation of privacy and that the subjective expectation of privacy is one that society is prepared to recognize as objectively reasonable. United States v. Mohammed, 58 F.3d 353, 355 (8th Cir. 1995).
Based on the national security measures introduced following the events of 9/11, air travelers can no longer have a subjective expectation of privacy in luggage or personal property. See Note 2, infra. However, national security concerns with bus and train travel are somewhat less pressing than those with air travel. Bruce Richardson, president of a think tank called United Rail Passenger Alliance, illustrated these lessened concerns. "Let's face it, if you hijack a train, what are you going to do with it? . . . All you can do is force it to stop or go. There are no runaway scenarios here." Karlayne Parker, Buses, Trains Search for Security Solutions, Tampa Tribune, Oct. 21, 2001, 2001 WL 28746077. Because the mandatory search provisions for luggage and packages put on airplanes do not apply to trains or buses, train or bus travelers can at least argue that they have a subjective expectation of privacy in their personal property, subject to the many qualifications already imposed by Fourth Amendment case law. But whether a post-9/11 society would recognize any mass transit traveler`s subjective expectation of privacy as objectively reasonable is, obviously, another matter.
A traveler's privacy interest in personal luggage or other personal property does not necessarily extend to the exterior of the pieces, however, particularly when the traveler turns over control of luggage or personal property to a third party such as a common carrier. In Demoss, for example, the Eighth Circuit held that an officer did not seize a Federal Express package when he briefly lifted it from an airport conveyor belt, since once a sender relinquishes possession of personal property to a third party, the sender can no longer expect that the property "would not be handled or that physical attributes would not or could not be observed," especially by law enforcement officials. Demoss, 279 F.2d at 635. Likewise, a traveler placing luggage or other personal property in a bus or train's overhead storage compartment shared with other passengers has a lowered expectation of privacy since "other passengers or bus employees may move it for one reason or another." Bond v. United States, 529 U.S. 334, 338-39 (2000). See also Gwinn, 191 F.3d at 878-79; United States v. Harvey, 961 F.2d 1361, 1364 (8th Cir. 1991) (finding that removal of luggage from overhead storage compartment of bus to facilitate a canine sniff was not seizure).
But train passengers — and presumably bus passengers as well — have not yet had to surrender all subjective expectations of privacy in their personal luggage. The Supreme Court recognizes that while bus passengers expect that their bags may be handled, they do not expect "that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner." Bond, 529 U.S. at 338-339. "Unlike the situation with airline travel, train passengers are not routinely given advance notice that inspection of their luggage is a condition of their travel. Thus, it cannot be said that by utilizing train transport, they have impliedly consented to a subsequent search of their luggage." Gwinn, 191 F.3d at 874 n. 4.
Since the terrorist attacks of September 11, 2001, the degree of privacy that airline travelers may expect in their luggage has altered radically, as any recent passenger on a commercial airline will vouch. Federal law now requires screening of "all passengers and property, including United States mail, cargo, carry-on and checked baggage, and other articles, that will be carried aboard a passenger aircraft." 49 U.S.C. § 44901(a). In addition, federal employees must screen all checked baggage for explosives, manually if necessary. 49 U.S.C. § 44901(c) — (e).
Consequently, a bus passenger may still expect his or her bag will not be subjected to any interference more intrusive than "a canine sniff or the incidental touching that accompanies the moving of luggage from the overhead" or the rearranging of luggage in the baggage compartment under the bus. United States v. Winborn, 2002 WL 1484489, *5 (D.Neb. 2002). See also United States v. Ward, 144 F.3d 1024, 1033 (7th Cir. 1998) (observing that a person who surrenders bags to Greyhound for transport in a common luggage compartment "expects a significantly greater degree of handling by strangers than would a passenger who carried a bag with her onto the bus."). Furthermore, until Congress or the Eighth Circuit decides differently, a bus passenger's subjective expectation of privacy, however limited, is one that society is prepared to recognize as reasonable.
The evidence here does not suggest that the officers conducted the sort of "calculated and thorough" feeling and manipulation of the garment bag's exterior which the Eighth Circuit found overly intrusive in Gwinn. Eberle testified that he did not merely look at the bags under the bus; he said that he "move[d] them around to — you have to in order to actually look at the tags. You pick the bags up and sometimes we pull them out to look at them." TR at 32:9-11.
But neither was this merely the incidental manipulation of the defendant's bag by other passengers or bus employees recognized as permissible by Bond, or the facilitated canine sniff of Harvey.
The Supreme Court has held that the Fourth Amendment does not prohibit a temporary detention of personal luggage "for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics." United States v. Place, 462 U.S. 696, 698 (1983).
Rather, by removing the defendant's bag from the bus without his knowledge or consent and carrying it inside the bus terminal to a room inaccessible to the general public or to the defendant, see TR at 12:19-13:6, the officers substantially interfered with the defendant's possessory interest in the bag. See United States v. Terriques, 319 F.3d 1051, 1056 (8th Cir. 2003) (noting that when postal inspectors detained package to obtain a warrant, they exhibited "dominion and control" over the package that amounted to a seizure).
By removing and then detaining the defendant's bag in the baggage terminal, the officers "interfered with a possessory interest in the luggage . . . such that the expectation of timely delivery of the . . . luggage has been frustrated." Demoss, 279 F.3d at 640 (Hansen, J. concurring) (citing United States v. Johnson, 990 F.3d 1129, 1132 (9th Cir. 1993)). The officers removed and sequestered the bag without knowing whether their suspicions could be resolved before the defendant's bus left the station. Their testimony did not indicate that they made any arrangements for a sniff search, an act that might have justified the bag's removal.
Place, 462 U.S. at 705. They thus interfered with the defendant's "contractually-based expectation that he would regain possession of the bag" when the bus arrived at Washington, D.C. Ward, 144 F.3d at 1033.
Furthermore, analyzing the problem from a totality of the circumstances approach, the officers did not have reasonable suspicion, much less probable cause, to remove the bag and detain it. Reasonable suspicion is necessary to detain a person's luggage and it must derive from more than a hunch. United States v. Tillman, 81 F.3d 773, 775 (8th Cir. 1996). Without at least reasonable suspicion, an officer may not even temporarily seize a person's luggage.
United States v. O'Neal, 17 F.3d 239, 242 (8th Cir. 1994). A warrantless seizure and detention of packages or baggage being transported by third parties such as Greyhound is permissible only if the officers have a reasonable and articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 20-23 (1968); Place, 462 U.S. at 708.
Eberle testified that his attention was drawn to the defendant's bag because it was new and because it had no handwritten name tag. Lack of a name tag alone does not create probable cause or even reasonable suspicion, Gwinn, 191 F.3d at 879 n. 5 (observing that "[m]any passengers do not place name tags on their luggage, particularly carry-on luggage"), particularly since the defendant's bag did have a Greyhound baggage tag. Nor could the "newness" of the defendant's bag alone have provoked reasonable suspicion, since all bags are, at some point, "new." Eberle did not testify that he noticed any unusual bulges, bumps, or smells coming from the bag. In fact, nothing about the external appearance of the luggage was different from the thousands of other bags deposited with common carriers by innocent travelers each day.
Therefore, if reasonable suspicion to seize and detain the bag existed, it could only be based on the information Eberle obtained from the Greyhound computer system about the bag. The computer revealed that the passenger with whom the bag was associated had purchased for cash a one-way ticket from Los Angeles (a known source city for drugs) to
Washington, D.C. on the same day travel. Although this combination of factors might have applied to scores of innocent bus passengers traveling on the day of the search, Eberle nevertheless claimed that he suspected, based on his experience as an interdiction officer, that the defendant's bag might contain contraband.
"Conduct that is typical of a broad category of innocent people provides a weak basis for suspicion." United States v. Tillman, 81 F.3d 773, 775 (1996). The totality of the circumstances here represents conduct typical of innocent people. There is no credible evidence that a person who paid $169 cash for a one-way bus ticket from Los Angles to
Washington on the day of travel engaged in suspicious activity. See, e.g., White, 890 F.2d 1413, 1417 (8th Cir. 1989) (finding that officers lacked reasonable, articulable suspicion to justify detention of a defendant or his luggage after the defendant deplaned from drug-source city, even though the defendant had purchased one-way ticket with cash).
The government seeks to apply the reasonable suspicion analysis previously used in airport search cases in this bus transportation case. Other than an interdiction officer's bare allegations about a particular bag's suspicious appearance, a court has no criteria for fairly deciding what luggage is reasonably suspicious and what luggage is not reasonably suspicious. Common experience suggests that most air passengers purchase tickets in advance, but there is no evidence that the same can be said for bus passengers. Common experience also suggests that most plane tickets are not purchased with cash, but again, there is no evidence that the same can be said for bus tickets. Common experience further suggests that the same holds true for the day on which bus versus airline passengers actually purchase tickets. In general, bus tickets are cheaper than most plane tickets. Bus transportation is more likely to be used by people who cannot afford the more costly plane tickets or who may not have credit cards with which to charge air fare in advance of departure.
Bus tickets thus are more likely purchased for cash and on the same day of travel. The cold truth is that drug trafficking via bus, rail, and private transportation is increasing since all airplane luggage and packages can be searched. In response, the grounds for searching bus and rail baggage have quickly become so generalized that the government is now freely searching any bag that a government agent deems "suspicious."
This court has heard every imaginable basis for searching so-called "suspicious" luggage: it is old, it is new; it had a handwritten identification tag or it did not; it is a soft bag, a garment bag, a duffel bag; the possessor is too nervous, too self-assured, too calm, too jittery; the bags are overstuffed or they are underpacked. In truth, the only consistent factors this court has discerned are, one, that the defendants are usually African-American or Hispanic and, two, they are traveling from the west or southwest parts of this country. The defendants' race or ethnic appearance may have no validity because the government has never produced as evidence statistics on the racial breakdown of individuals stopped for suspicious bags or on the racial breakdown of bus passengers in general. The geographic origin of a bus itinerary may also have no validity because local interdiction officers, by their own admission, only search buses traveling eastward from the west and southwest. See, e.g., 8:03CR128, Filing No. 30, Transcript, 8:1-10. Ultimately, law enforcement officers offer no objective evidence whatever about the criteria for suspicious luggage.
Given the pervasive nature of drug abuse in this country and the reality that the transportation of drugs has moved from the air to the ground since 9/11, this court has little doubt that a search of all the luggage on board any bus or train would yield a surprising number of bags containing drugs. But since the Fourth Amendment has not yet been officially suspended for bus and train travel, this belief cannot be tested. Therefore, until Congress or a higher court determines that bus and train travelers no longer have any expectation of privacy with regard to their luggage or personal property, this court finds that 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.
B. Search of the Garment Bag
Because the seizure of the bag was unconstitutional, the next issue becomes whether the defendant's alleged consent to the search of the bag removed the taint of the unlawful seizure. The defendant objects to the magistrate judge's finding that his consent was knowingly and voluntarily given, noting that the police report failed to state how or when the defendant consented to the search.
When a person consents to a search following an illegal detention or seizure, that consent "may, but does not necessarily, dissipate the taint" of the prior Fourth Amendment violation. United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). "Under the `attenuation' exception to the exclusionary rule, evidence that is in some way the product of illegal police conduct may be admitted if it has become so distanced from the underlying illegal police conduct as to dissipate the taint of the illegal search or seizure." United States v. Goodrich, 183 F. Supp.2d 135, 145 (D.Mass. 2001) (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)).
The challenged evidence is admissible if 1) the consent was voluntarily given, and 2) the consent was "an independent act of free will." Chavez-Villarreal, 3 F.3d at 127. The first prong of this test examines whether the defendant was coerced; the second prong examines whether the alleged consent was causally connected to the constitutional violation. Id. The government bears the burden to prove by a preponderance of the evidence that consent to search was freely given. United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001) (citing United States v. White, 81 F.3d 775, 780 (8th Cir. 1996)).
To determine the first prong, that is, whether a defendant voluntarily consented to a search, the court must consider the defendant's "age, intelligence, intoxication, advice of Miranda rights, and previous arrests." United States v. Reinholz, 245 F.3d 765, 780 (8th Cir.), cert. denied, 534 U.S. 896 (2001) (citing United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990)). The court also considers the environment in which the consent was allegedly given, looking at the length of detention, any threats or misrepresentations by police, whether the suspect was in custody or under arrest, whether the place where the arrest occurred was public or private, and whether the suspect made any contemporaneous objections or representations. Id.
Here, the defendant is an adult who on the day of his arrest appeared to Eberle sober and of normal intelligence; in fact, the defendant at the suppression hearing testified that he had attended college, TR at 79:9-15. He voluntarily came to the ticket counter when summoned by Eberle's page over the terminal intercom. After confirming that the defendant's name matched that on the baggage ticket, Eberle asked the defendant to accompany him, and the defendant acquiesced. Eberle led the defendant out of the public area of the terminal and to the rear baggage terminal, where at least two other officers were waiting with the bag in a room with two open doors. Eberle testified that the defendant then consented to the search, but what the defendant said or did to consent is unclear from the testimony. See TR at 19:22-25; 49:20-50:9; 51:10-53:1; 53:9-55:18; 73:3-74:7; 76:1-77:6; 81:17-82:18; 85:8-25.
The defendant's own testimony indicates that he did not object to the search. TR at 82:7-18. Although the defendant testified that he did not know his rights at the time of the search, officers are not required to tell bus passengers that they have a right to refuse to cooperate and to refuse consent to a search. United States v. Drayton, 536 U.S. 194, 206-207 (2002);
United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001) (citing United States v. Barahona, 990 F.2d 412, 417 (8th Cir. 1993)). The officers did not give the defendant his Miranda warnings until after he had been transported from the bus terminal to a Nebraska State Patrol office for questioning. The record does not make clear whether the defendant had a history of prior arrests. Eberle was in plainclothes and his weapon was not visible. Nothing in the testimony suggests that Eberle or Lutter directly threatened or coerced the defendant.
However, there is no reason to believe that the defendant or anyone else — even most lawyers — would know that they could refuse the request to search the bag. The defendant here was alone, in a private room, with at least two armed police officers. His bag was already in the possession of law enforcement officers, and they then asked him if they can search the bag. Under the totality of the circumstances, no reasonable person would believe that he or she had a choice about the search. 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.
To determine the second prong, that is, whether a defendant's consent to the search was an independent act of free will that broke the causal chain between the unconstitutional violation and the consent, three factors are relevant: "the temporal proximity of the [seizure and the consent], the presence of intervening circumstances, and particularly, the purpose and flagrancy of the official misconduct." Brown v. Illinois, 422 U.S. 590, 603-04 (1975); see also United States v. Moreno, 280 F.3d 898, 900 (8th Cir. 2002). The burden is on the government to prove that the connection between the illegal arrest and the confession has been broken. Brown, at 604.
First, the temporal proximity of the unconstitutional seizure of the bag and the defendant's consent to search it strengthens the connection between the two and weighs in favor of excluding the evidence as an involuntary consent. Very little time elapsed between Eberle's decision to remove and sequester the defendant's bag and the defendant's consent to search it. In that time, Eberle paged the defendant to the ticket counter, told him there was a problem with his bag, asked him to accompany him to the rear baggage terminal, and upon entering the baggage room, asked for his consent to search. No more than a few minutes could have elapsed.
Second, the court must inquire whether intervening circumstances purged the taint of the unlawful seizure. Common examples of intervening circumstances include telling a suspect he can refuse consent to a search, releasing a suspect from custody, bringing the suspect before a magistrate, or permitting the suspect to speak to a lawyer. See, e.g., Moreno, 280
F.3d at 901; United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1300 (9th Cir. 1988). Here, however, nothing in the record indicates the presence of an intervening circumstance which led the defendant to consent to the search. Therefore, this factor suggests that the defendant's consent was not voluntary.The final Brown factor examines the purpose and the flagrancy of the official's misconduct. Eberle testified that he brought the bag inside to the rear baggage terminal because Greyhound discourages interdiction officers from speaking to bus passengers and others in the refueling area. TR at 58:15-59:2. According to Eberle, interdiction officers apparently had been removing and sequestering bags pursuant to Greyhound's policy for over a year prior to the events at issue without any legal challenge. TR at 59:3-22. However, Greyhound's policy cannot make the seizure constitutionally permissible. While Greyhound had the right to remove a bag in its custody and control and take it to a private area inside its terminal, the officers did not. Furthermore, the officers could have obviated this entire issue had they used Eberle's drug dog, who was apparently at the bus station on the day in question. Eberle offered no reason for seizing the bag rather than subjecting it to a canine sniff. See TR at 25:16-26:4. While the officers' seizure was not a "flamboyantly flagrant" Fourth
Amendment violation, I find Eberle's decision to seize and sequester the bag "was clearly motivated by an unrestrained desire to find evidence despite the lack of search warrant or probable cause." Goodrich, 183 F. Supp.2d at 148. The officers asked for the defendant's consent to search only after they had already examined and handled the bag and then carried it inside the terminal. Such thorough "dominion and control" might easily have also included exploratory — but still illegal — manipulation of the bag's contents.
I find that all three of the Brown factors weigh against a finding that the defendant's consent was an independent act of free will. I find that the causal chain between the illegal seizure and the defendant's consent was never broken. The defendant's apparent acquiescence did not remove the taint of the illegal seizure. Consequently, the evidence obtained in the search after the illegal seizure is "fruit from a poisonous tree." For these reasons, the defendant's motion to suppress the evidence is granted.
C. Use of Va Lerie's Statements for Impeachment Purpose
For the reasons stated in Magistrate Judge Thalken's report and recommendation, I find that the government has failed to carry its burden of proving by a preponderance of evidence that the defendant voluntarily made the statements to Eberle and Lutter. Consequently, the statements will be inadmissible at trial for any purpose, including impeachment. Accordingly,
IT IS ORDERED:
1. The defendant's objection, Filing No. 22, to the report and recommendation, Filing No. 19, is sustained;
2. The government's objection, Filing No. 20, to the report and recommendation, Filing No. 19, is overruled;
3. The report and recommendation, Filing No. 19, is adopted in part as detailed in this memorandum and order; and
4. The defendant's motions to suppress, Filing Nos. 11 and 13, are sustained.