Search and Seizure - Airport, Bus Station and Train Station Searches

United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105 (2002)

Police offices boarded an outgoing bus before departure and asked the passengers for consent to search their luggage. The officer did not inform the passengers that they could decline to give consent. The defendants consented to a search of their luggage and persons. The Eleventh Circuit had held that the consents were not voluntary because of the coercive nature of the interdiction activity, as well as the officers’ failure to advise the passengers that they could refuse to consent to a search. The Supreme Court reversed. According to Florida v. Bostick, 501 U.S. 429 (1991), every encounter between the police and a defendant on a bus is not necessarily a “seizure.” In this case, the Court held that the failure to advise the passengers of their right to refuse consent did not taint consent that was otherwise voluntarily given.

United States v. Sokolow, 490 U.S. 1 (1989)

The Court upholds the detention of a passenger and the subsequent search of his suitcase. The defendant made a quick roundtrip from Hawaii to Miami, used small bills, and an apparently false call-back number. This was sufficient to authorize a Terry stop.

United States v. Aquino, 674 F.3d 918 (8th Cir. 2012)

The police approached a bus passenger and interviewed him, ultimately asking him to leave the bus, retrieve his baggage and then hold his clothes close to his body so they could determine if there were any “bulges” that would indicate the presence of contraband. The defendant complied. The district court held that there was no articulable suspicion justifying the officer’s encounter with the defendant and further found that the encounter was not consensual, especially when the police lifted the defendant’s pants above his ankle to examine a “bulge.” Even after a “bulge” is observed, moreover, this information, alone, does not provide probable cause to arrest someone.

United States v. McCarty, 648 F.3d 820 (9th Cir. 2011)

TSA screening agents saw a dark object around a computer when the defendant passed through the security line. When the bags were opened, an envelope with newspaper and pictures emptied out and the agent saw child pornography in the pictures and then read the newspaper articles and found further evidence of child pornography related activity. A TSA agent’s search must be limited to its intended scope: aircraft security and ensuring that nobody is carrying weapons or other dangerous items on a plane. The Ninth Circuit decision thoroughly reviews the law governing the permissible scope of TSA searches and ultimately concludes that reading the newspaper articles went too far, but that the photographs seen by the TSA Agent may have provided a sufficient basis to support an arrest of the defendant. A remand for further fact-finding was necessary.

United States v. Alvarez-Manzo, 570 F.3d 1070 (8th Cir. 2009)

The police seized a suitcase from underneath an interstate bus during a layover at a bus depot. They brought the suitcase into the bus and asked the passengers to whom it belonged. The defendant eventually said that it was his. He agreed to exit the bus and went with an officerinto the bus station. Ultimately, he was arrested based on what was seen in his wallet and a search warrant was obtained to search the bag. The police did not act with the consent or at the direction of any employee of the bus company when they initially took the bag out cabbage compartment and brought it into the bus. This amounted to a seizure and because there was no warrant or probable cause, evidence discovered as a result of the seizure – which was both the contents of the wallet and the suitcase – was properly suppressed.

United States v. Goodwin, 449 F.3d 766 (7th Cir. 2006)

Judge Posner explains at some length the rules governing when the police may detain a passenger on a train and the length of time that this detention may last. He concludes that there is a sliding scale that reflects when the police learn the information that justifies the stop, the seriousness of the offense and the reasonable length of time it takes to investigate the suspicious circumstances. In this case, the court upholds the detention and use of a dog sniff, based on the defendant’s statements that he had lost the key to his luggage and thus, could not open it for the police. The defendant also met certain characteristics of the drug courier profile.

United States v. Escobar, 389 F.3d 781 (8th Cir. 2004)

The police were suspicious of the defendants’ bags that were in the baggage compartment of a bus. The bags were removed from the compartment and brought to a room where the defendants were being questioned. The officers told the defendants that a drug dog had alerted to the bags and that there was probable cause to search them (there had been no drug dog and there was not probable cause). The defendants then consented to a search. This was not a valid consent search. The environment was overly coercive and the misrepresentation that there was already probable cause to search tainted the voluntariness of the consent.

United States v. Hernandez, 279 F.3d 302 (5th Cir. 2002)

Suspicious of a bus traveler, a police officer took her luggage out of the baggage compartment of the bus and handled it, feeling (from the outside) the contents. This violated Bond v. United States, 529 U.S. 334 (2000), which held that such manipulation of luggage amounts to a search. The agent at that point entered the bus and secured the defendant’s consent to open the suitcase. This was valid consent. But, the consent was not sufficiently attenuated from the initial illegality to remove the taint. Thus, even though the search was conducted pursuant to the defendant’s consent, it was still the fruit of the illegal search that preceded it. “The officer decided to approach the defendant only after he had felt something suspicious in her suitcase.” This invalidates the consent search.

United States v. Pena-Saiz, 161 F.3d 1175 (8th Cir. 1998)

The police approached the defendant at the baggage claim area and brought her to the drug interdiction office where her luggage and a wrapped gift were searched. She was never told that she could refuse consent. Nothing was found in her belongings and the agents then said they wanted to frisk her. She initially refused, but relented when the agents said that she would be arrested. The ensuing search was unlawful. She was being detained at the time she was brought to the interdiction office; moreover her refusal to consent was not honored.

United States v. Ward, 144 F.3d 1024 (7th Cir. 1998)

The defendant checked his suitcase, which contained a kilogram of cocaine, on a bus from L.A. to Indianapolis, but did not board the bus. He flew to Indianapolis and awaited the arrival of the bus. When the bus stopped in St. Louis, the police became suspicious of the bag and took it out of the luggage compartment and asked the passengers if anybody claimed it. Nobody did, and the police confirmed that none of the passengers were heading for Indianapolis. The bus was taken out of the bus and the bus departed. Later, a drug dog alerted to the bag and a warrant was obtained. The Seventh Circuit concludes in this case that the luggage was “seized” when it was taken off the bus; however, there was a reasonable suspicion justifying the seizure. Relying on United States v. Place, 462 U.S. 696 (1983), the court held that detaining luggage is the same as detaining a traveler and must be supported by an articulable suspicion. See also United States v. Puglisi, 723 F.2d 779 (11th Cir. 1984). This rule applies even if, as in this case, the traveler was not accompanying his luggage, because the detention would have deprived the traveler of his luggage at the ultimate destination. See United States v. Van Leeuwen, 397 U.S. 249 (1970) (detaining mail is not unlawful if it is delivered the next day). Because there was an articulable suspicion, however, the dog alert and the execution of a search warrant was permissible.

United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998)

The Eleventh Circuit holds that an encounter between drug interdiction agents and the defendant, a passenger on a bus, was not consensual. The bus arrived at the Mobile, Alabama bus terminal, and before the passengers could exit, two agents entered the bus and asked each passenger for consent to search the on-board luggage; they did not tell the passengers that they could refuse consent to search the bags. The court held that this encounter was not consensual. Note that this decision pre-dates the United States Supreme Court decision in United States v. Drayton, supra which arguably overruled Guapi, though the Supreme Court did not expressly do so.

United States v. Washington, 151 F.3d 1354 (11th Cir. 1998)

Following the reasoning of United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998), the Eleventh Circuit concludes that officers who conducted a search of bus passengers did not have their voluntary and knowing consent, given the fact that the passengers were never told that they were free to decline to be searched and the manner in which the agents conducted the search. The search was conducted in the cramped quarters of an interstate bus and was consciously designed to take full advantage of a coercive environment. Under these circumstances, the typical bus passenger would not feel free to refuse the requests, but would consider these “requests” to be orders backed by the full force of the United States government. Note that this decision, as well as Guapi, were decided prior to the decision in United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105 (2002), which denounced the per se rule that all bus searches were non-consensual unless preceded with advice that the passengers were free to decline consent.

United States v. Acosta-Colon, 157 F.3d 9 (1st Cir. 1998)

A drug dog alerted to suitcases that were destined from Puerto Rico to New York. Agents determined that the bags were checked by people related to the defendant’s reservation. When the defendant attempted to board the plane, he and three other passengers were handcuffed and brought to a customs area. Once in an interview room, the defendant was seen attempting toeat some paper (the claim tickets for the suitcases). This occurred about fifteen minutes after he was placed in the room. The bags had 15 kilograms of cocaine. The First Circuit concluded: (1) There was no probable cause for the arrest; (2) There was an articulable suspicion supporting a brief detention; (3) the detention in this case rose to the level of an arrest. The following factors are indicative of an arrest: the defendant was in handcuffs; transported to a different location; detained for more than a momentary period; was never informed of how long he would be detained. Though no factor is outcome determinative, in combination the circumstances in this case amounted to a de facto arrest. Because there was no probable cause, the evidence should have been suppressed.

United States v. Allen, 159 F.3d 832 (4th Cir. 1998)

The police entered a bus and questioned the occupants about their luggage. The defendant was asked if he had any bags and he pointed to a knapsack. The police pulled down the knapsack and asked for permission to search it. The defendant consented and the police found marijuana in the bag. The defendant was arrested. After he was removed from the bus, the police found another duffel bag which none of the other passengers claimed. The police searched that bag and found cocaine. The lower court upheld the search of the duffel bag on the theory that it inevitably would have been discovered. The trial court reasoned that if nobody claimed the bag, the police would have brought a drug-detecting dog to sniff the bag and if he alerted, the police would then obtain a search warrant and locate the cocaine. The Fourth Circuit reversed. There was insufficient evidence that a drug dog would have been summoned. In fact, testimony at the hearing demonstrated that there was a dog present, but that the dog had never been used inside the bus before (it had previously been used to sniff the undercarriage of the bus). Moreover, the inevitable discovery doctrine does not apply where the police were not already in the process of obtaining a search warrant when the illegal search occurred. Under the government’s theory, whenever there is probable cause, the inevitable discovery doctrine would apply. That is not the purpose of the inevitable discovery doctrine.

United States v. Acosta-Colon, 157 F.3d 9 (1st Cir. 1998)

Though the agents had an articulable suspicion justifying the detention of the defendants at the airport after a drug dog alerted to what the agents believed was the luggage of the suspects’ companions, the thirty-minute detention, during which time the defendants were handcuffed and missed their flight went too far and amounted to an arrest which required probable cause.

United States v. Doe, 61 F.3d 107 (1st Cir. 1995)

An airport security officer noticed a dense object in the defendant’s carry-on luggage. He pulled it out of the bag (which was a proper airport security search) and handed it to a DEA agent. The agent then punctured the bag to field test the contents. This was an illegal search which required a warrant. Exigent circumstances and probable cause justify the seizure of a bag such as this, but do not justify opening the bag or removing the contents.

United States v. Wilson, 953 F.2d 116 (4th Cir. 1991)

The defendant was encountered by task force agents at the airport. They asked if they could search him. He allowed them to search his carry-on bag and his person, but when they asked to search his coat which he had over his arm, he refused. They persisted. He refused. He walked away and the officers walked with him. At this point, the defendant was “detained” in sofar as he would have been aware that he was not free to leave in the sense of being free to “break off the encounter.” The information known to the police did not give them an articulable suspicion. Apart from looking suspicious, coming from a source city, providing only a checkcashing card for identification, and misrepresenting his itinerary, the only information known to the police was that there was a visible bulge in the coat pocket. A bulge in a coat pocket – not hidden from view – is not suspicious at all. The only suspicious factor was the lie about where the defendant was coming from. However, it is not clear why this would provide suspicion that the defendant was a courier. That is, why would someone coming from New York carrying drugs lie and state that he was actually coming form Boston? This does not support the inference that he was carrying drugs. The motion to suppress should have been granted.

United States v. Gonzales, 842 F.2d 748 (5th Cir. 1988)

A federal agent approached an air traveler and advised her that he was working narcotics and requested to look in her carry-on luggage. The Fifth Circuit concludes that this constitutes a “seizure” requiring reasonable suspicion. The Fifth Circuit later held that the Gonzales decision set forth the incorrect burden of proof to establish consent, but did not alter the holding regarding what constitutes a seizure. United States v. Hurtado, 905 F.2d 74 (5th Cir. 1990).

United States v. Caicedo, 85 F.3d 1184 (6th Cir. 1996)

The defendant arrived at the bus station in Cincinnati and a narcotics officer testified that he looked nervous. The officer followed the defendant until he got into the car of another person. The officer approached the car and asked the two if he could talk to them. The defendant (the passenger) got out of the car and – though the evidence was unclear, the appellate court concluded – the officer then frisked him and then asked for consent to search his backpack. The appellate court held that the evidence should have been suppressed. If the frisk occurred before the request for consent, then the defendant was at that time “seized” and there was no basis for this seizure. The ensuing consent, therefore, was invalid and the search of the backpack violated his Fourth Amendment rights.

United States v. Stewart, 831 F.2d 298 (6th Cir. 1987)(unpublished)(1987 WL 44968)

The Sixth Circuit holds that the indicia of the drug courier profile manifested by the defendant in this case did not authorize a Terry stop or a subsequent search. The defendant arrived in Atlanta on a flight from Florida and appeared nervous. She went to the luggage carousel and cursorily examined pieces of baggage and then went and claimed unclaimed luggage which had arrived on an earlier flight. When she went out to a taxicab stand, DEA agents approached her and began to question her. The agents also signaled the man who called the cabs to the door and instructed him not to call a cab for the defendant. Following a lengthy interrogation, the defendant consented to a search of her baggage. Cocaine was found. The Court initially concludes that the totality of the circumstances existing at the time the defendant was approached at the taxicab stand indicates that she in fact had been seized. The Court further concludes that there were not sufficient facts to give rise to an articulable suspicion that the defendant was transporting drugs. Consequently, the resulting consent was invalid and the evidence was suppressed.

United States v. Clardy, 819 F.2d 670 (6th Cir. 1987)

The defendant was on a flight from Miami to Atlanta. As he entered a taxicab in Atlanta, police officers conducted an investigatory stop. The police stated that he met one characteristic of the drug courier profile, travelling from Miami. However, he was accompanied by a personwho met several additional characteristics of the profile. The Court holds that this was not sufficient grounds to conduct the investigatory stop of the defendant.

United States v. Novak, 870 F.2d 1345 (7th Cir. 1989)

The defendants were approached in an airport walkway by six to nine law enforcement officers, one of whom was brandishing a gun. The defendant’s colleague was handcuffed. The defendant was then escorted to the sheriff’s office. This constitutes an arrest which was not predicated on probable cause.

United States v. Fletcher, 91 F.3d 48 (8th Cir. 1996)

The factors upon which the government relied in support of the detention of the defendant’s luggage were not sufficient. The defendant arrived in Des Moines from a source city; he was the first off the plane and went directly to a bathroom; he was “connected” with a white pickup that had supplemental gas tanks and out of state tags; he told the officers that he had a round trip ticket, when they knew, in fact, he had purchased the return ticket in cash; he was associated with a woman who lived at an address where a narcotics complaint had been made. These factors did not justify detaining his bags. However, having detained the bags, the officers then obtained a search warrant and the good faith exception to the exclusionary rule applied. Note, in this regard, that the court held that if facts are learned during an illegal detention that are then used to acquire a search warrant, the Leon good faith rule may still apply.

United States v. Green, 52 F.3d 194 (8th Cir. 1995)

The police approached the defendant because she was single, travelling alone, carrying a duffel bag, but no purse, and was taking “counter-surveillance” measures. She agreed to talk with the police, but appeared nervous. She had difficulty producing identification or her plane ticket. The police then asked for permission to search the duffel bag which she declined to give. The police would not let her leave, stating that a drug dog was being summoned. At this point, the defendant was in custody. Moreover, the information known to the police was not sufficient at that point to justify the stop. The inability to locate a plane ticket, after the trip has ended, is not suspicious; “counter-surveillance” may simply be a traveler’s efforts to get their bearings in a new surrounding; and the fact that the defendant arrived from a source city, without more, simply does not establish an articulable suspicion, or probable cause to justify the detention, awaiting the arrival of a drug dog.

United States v. O’Neil, 17 F.3d 239 (8th Cir. 1994)

The defendant and his brother arrived at a bus station in Minnesota from a source city, Chicago. The defendant and his brother walked immediately and briskly to the exit and were carrying athletic type bags. The brother had both of the bus tickets; the defendant, when confronted by drug agents, began sweating profusely. This information did not justify the officer’s seizure of the athletic bag. Becoming nervous when confronted by the police is not an unusual reaction. Though there was insufficient information to seize the bag, the defendant immediately revealed that there was cocaine in the bag, therefore, there was probable cause to obtain a search warrant.

United States v. $7,850, 7 F.3d 1355 (8th Cir. 1993)

The defendant purchased a ticket with cash to fly from Minneapolis to Nebraska; he carried no identification or baggage; he was seen by the ticket agent to have a large wad of cash; he lied to an officer about whether he had been at the airport the day before (he had been seenthere by another officer); a NADDIS report indicated that he had a heroin supplier in Nebraska. These facts did not amount to probable cause to seize the currency. (Because the district court did not consider whether there was an articulable suspicion justifying the seizure, that was not addressed by the appellate court).

United States v. Millan, 912 F.2d 1014 (8th Cir. 1990)

The police stopped a traveler based on the fact that he arrived from San Francisco, was among the first to leave the airplane, he had only carry-on luggage, dressed casually, wore a gold necklace, and had long hair. He had purchased his ticket with cash the day before but was traveling under his own name. The Eighth Circuit holds that this information was not sufficient to justify a seizure. Furthermore, the fact that agents noticed “bulges” in his jacket pockets did not justify the seizure.

United States v. White, 890 F.2d 1413 (8th Cir. 1989)

The defendant arrived at the St. Louis airport and attracted the attention of DEA agents who were suspicious of his carry-on bag, the flight from Los Angeles, his nervousness, and his use of a one-way cash ticket. On the basis of these factors, the agents seized the defendant’s luggage but permitted him to depart. The agents subjected the luggage to a drug-detection dog which alerted. The Court holds that probable cause did not exist to seize the bag; however, after the dog alerted, the police obtained a search warrant and the good faith exception to the exclusionary rule operated to permit introduction of the evidence.

United States v. Ross, 32 F.3d 1411 (9th Cir. 1994)

The government’s involvement in promulgating the FAA guidelines to combat hijacking is so pervasive “as to bring any search conducted pursuant to that program within the reach of the Fourth Amendment.” Thus, when an airline employee searches a passenger’s baggage at the ticket counter because of certain characteristics of the traveler (paid in cash, produced no identification) this is a search which must be scrutinized under Fourth Amendment standards. In this case, the search of the luggage by the employee violated the standards of Terry and United States v. Place, 462 U.S. 696 (1983). The information was not sufficient to justify opening up the luggage, or the containers found inside. The X-ray found no evidence of an incendiary device, or any other dangerous device.

United States v. Garzon, 119 F.3d 1446 (10th Cir. 1997)

Police boarded a bus in Denver and asked all the passengers to disembark, holding their carry-on luggage in their right hand so a drug dog could sniff the luggage. The defendant exited the bus, but left two bags on the bus. The police took the bags off the bus, put them on a cart and a drug dog alerted to the bags. The bags were opened and found to contain cocaine. The Tenth Circuit held that the bags were not abandoned by the defendant. The government conceded that the officer had no lawful authority to order all the passengers off the bus. The lower court’s only basis for finding abandonment was the court’s holding that the defendant failed to heed the officer’s unlawful order that all luggage be removed from the bus. This did not support a conclusion that the defendant abandoned his luggage.

United States v. Little, 60 F.3d 708 (10th Cir. 1995)

A train passenger was seized for Terry purposes when an agent questioned her in her roomette and asked incriminating questions in a manner which indicated that she was not free toleave. The agent also failed to advise the defendant that she was free to decline answering the questions.

United States v. Lambert, 46 F.3d 1064 (10th Cir. 1995)

The defendant purchased a plane ticket from Los Angeles to Wichita, Kansas with cash. When he arrived in Kansas, DEA agents approached him and asked if they could speak with him. He provided his driver’s license which they retained during further questioning. His license, plane ticket and other identifying information were all in order and consistent. Finally, the agents asked him if they could search his suitcase, which he declined. They then seized his suitcase and allowed him to leave. This was an unlawful detention without adequate foundation and the evidence obtained from a subsequent search of the suitcase (done under the authority of a search warrant) should have been suppressed. The defendant was detained at the point in time that the officer retained his driver’s license.

United States v. Washington, 151 F.3d 1354 (11th Cir. 1998)

Two federal agents boarded a bus in Jacksonville and, holding their badges above their heads, announced that they would like to see the identification of the passengers. The agents did not tell anyone that they were free to refuse to cooperate, or to refuse to consent to a search. When they approached the defendant, they asked if they could look inside his luggage and then, when the agents saw an unusual bulge in the defendant’s pants, asked if they could search him. Again, he consented. The Eleventh Circuit held that this was not a lawful search, because the consent was not freely and voluntarily given. There is no doubt in this case that the encounter began with a “show of authority,” because the agent held his badge above his head and identified himself as a federal agent. He announced what he wanted the passengers to do, and what he was going to do. Absent some positive indication that they were free not to cooperate, it is doubtful a passenger would think he or she had the choice to ignore the police presence. Most citizens, the court observed, believe that it is their duty to cooperate with the police. Though the court declined to hold that police must advise suspects of their right to refuse to consent to a search, in this context, this is exactly what was needed. As the court held, “It seems obvious to us that if police officers genuinely want to ensure that their encounters with bus passengers remain absolutely voluntary, they can simply say so. Without such notice in this case, we do not feel a reasonable person would have felt able to decline the agents’ requests.”

United States v. Guapi, 144 F.3d 1393 (11th Cir. 1998)

At the bus station in Mobile, Alabama, two officers boarded the bus and announced that “with the passengers’ consent” they were going to quickly search all of the luggage on the bus for contraband. Nobody was told that they could exit the bus with their luggage, or that they were permitted to refuse the request. Though the court stopped short of holding that voluntary consent requires proof that the target was aware of his or her right to refuse consent, in this situation, there was no voluntary consent. The actions of the police, in the language of Florida v. Bostick “would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Note that this decision predates the United States Supreme Court decision in United States v. Drayton, supra which arguably overruled Guapi, though the Supreme Court did not expressly do so.

United States v. Gibson, 19 F.3d 1449 (D.C.Cir. 1994)

Defendant purchased a one-way ticket on an Amtrak train, with cash, several minutes prior to departure time. When he arrived at Union Station, he was approached by the police. Heclaimed to have been at a funeral, but his clothing did not seem appropriate. He had no identification. When the police called the telephone number listed on the reservation, there was no answer. The Court of Appeals holds that this does not amount to probable cause to arrest and the arrest and ensuing search were illegal. Even after having his suspicions aroused, the fact that the police officer frisked the defendant and felt a hard flat object in his pants did not increase the knowledge of the officer to the level of probable cause. “The Fourth Amendment stands in the way of the police arresting people simply because they appear suspicious and may be hiding something.”