United States v. Smith , 201 F.3d 1317 ( 2000 )

UNITED STATES of America, Plaintiff-Appellee,
v.
Ruvel Alfred SMITH, Jr., a.k.a. Rube Smith, etc., Defendant-Appellant.
No. 98-2100.
United States Court of Appeals,
Eleventh Circuit.
Jan. 27, 2000.
Appeal from the United States District Court for the Middle District of Florida. (no. 97-00120-CR-J_21B),
Ralph W. Nimmons, Jr., Judge.
Before EDMONDSON and MARCUS, Circuit Judges, and STROM*, Senior District Judge.
EDMONDSON, Circuit Judge:
Defendant, Ruvel Alfred Smith, Jr., appeals his convictions for conspiring to distribute cocaine and
possessing cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841 and 846. Defendant asserts that
the district court erred in denying Defendant's motion to suppress. We affirm.
BACKGROUND
This case arises from a bus check at a Jacksonville, Florida, bus station. On 5 May 1997, DEA
Special Agent Bruce Savell and Border Patrol Agent James Perkins were conducting narcotics-interdiction
surveillance at the bus station. Savell, inside the bus terminal, noticed Defendant's co-indictee, Joseph Tee
Bruton. According to Savell, Bruton constantly changed seats, walked around, and scanned the terminal.
Bruton watched every passenger who walked through the terminal. Bruton appeared nervous. Savell also
noticed two new, hard-sided, suitcases sitting unattended in the terminal. The suitcases appeared to be
expensive. Savell observed Bruton and the suitcases for approximately forty minutes.
At some point, Bruton met with Defendant inside the terminal. The two men engaged in a quick,
whispered conversation. Defendant and Bruton then turned away from each other and walked in opposite
*
Honorable Lyle E. Strom, Senior U.S. District Judge for the District of Nebraska, sitting by designation.
directions. After this exchange, Savell began to observe Defendant. Savell noted that Defendant also walked
around the terminal, switched seats, and went in and out of the terminal.
Soon thereafter, Bruton sat down with the previously unattended suitcases between his legs. A
boarding announcement was made for a northbound bus, and Bruton picked up the suitcases and walked
toward the boarding gate. As he approached the gate, Bruton slid one suitcase across the terminal floor to
Defendant. Bruton and Defendant each carried one suitcase through the gate.
Agent Savell waited for about four minutes and then went through the boarding gate. Savell saw the
two suitcases in the undercarriage of the bus. He checked the baggage tags attached to the suitcases; the tags
revealed that the suitcases belonged to a "Mr. Pender" and had originated in Miami, Florida.
At that point, based on his training and experience,1 Savell suspected that Defendant and Bruton were
carrying drugs in the suitcases.2 Savell requested and obtained the bus driver's permission to board the bus
and to conduct a bus check. Savell and Perkins, although dressed in plainclothes, displayed their badges as
they boarded the bus. The agents' firearms were concealed. Perkins announced to the passengers:
Good morning, ladies and gentlemen, my partner and I are both federal agents of the United States
Department of Justice. Nobody is under arrest or anything like that, we're just conducting a routine
public transportation safety check. When we get to you, if you would please show us your bus ticket,
some photo identification, if you have some with you, please. And, most importantly, if you would
identify which bags are yours on the bus, we'd appreciate it, and we'll be out of your way real quick.
Neither Savell nor Perkins expressly informed the passengers that their cooperation was voluntary. The
agents then, beginning in the back of the bus and making their way forward, spoke individually with each
passenger. The agents, in addition to inspecting each passenger's ticket and identification, asked each
passenger whether the passenger was carrying weapons, drugs, or large amounts of money. The agents stood
1
At the time of this incident, Savell had been a DEA agent for six years. During those six years, Savell
had conducted surveillance and searches at bus stations on hundreds of occasions.
2
Savell testified that his suspicion was based on several considerations, including Bruton's scanning the
terminal and other bus passengers, Defendant and Bruton's nervous behavior, their whispered conversation,
and their leaving the suitcases unattended for more than half an hour in the terminal. Savell testified that, in
his experience conducting drug-interdiction at the bus station, drug couriers frequently leave their
narcotics-laden luggage unattended until immediately before boarding.
2
behind each passenger and did not block the aisle of (or exit from) the bus as they conducted their bus check.
The check of passengers failed to reveal a "Mr. Pender" aboard the bus.
When approached by the agents, Defendant offered a one-way ticket from Miami to Charleston,
South Carolina, and a driver's license for the agents' inspection. Bruton also displayed a ticket from Miami
to Charleston; Bruton said that he was carrying no identification. Defendant and Bruton each denied that
he was carrying drugs or weapons, that he had checked luggage, and that he was traveling with anyone.
Defendant and Bruton permitted the agents to search their carry-on luggage. The agents frisked Defendant
and Bruton, but they found no weapons.
After the agents completed their survey of the passengers, Savell retrieved the two pertinent suitcases
from the undercarriage and brought them aboard the bus. Savell asked whether a passenger claimed
ownership of the suitcases. No passenger claimed to own the suitcases. Savell then directly asked Defendant
and Bruton, individually, whether they owned the suitcases. Both Defendant and Bruton denied ownership
of the suitcases.
Savell and Perkins, assisted by two Florida Highway Patrolmen, then opened the suitcases. The
agents discovered eleven kilograms of cocaine in the suitcases. Defendant and Bruton were arrested.3 After
making the arrests, the agents discovered a bus ticket in the name of "Pender" concealed in a seat near
Defendant and Bruton.
Defendant moved the district court to suppress certain evidence, including the cocaine found in the
suitcases, the Pender ticket, and various statements made by Defendant. Defendant argued that the discovery
of all of this evidence flowed from the agents' check of bus passengers. Defendant asserted that the bus check
was an unlawful seizure of the bus passengers in violation of the Fourth Amendment. Thus, Defendant
contended, the evidence should be suppressed as "fruits of the poisonous tree." The district court disagreed,
3
Bruton pled guilty and later testified against Defendant at trial.
3
however, concluding that the bus check did not amount to a "seizure." The district court accordingly denied
Defendant's motion to suppress. Defendant was tried by jury and convicted. Defendant appeals.
DISCUSSION
Defendant contends that the district court erred in denying his motion to suppress because: (1) the
bus check was a "seizure" within the meaning of the Fourth Amendment; (2) the seizure was not reasonable
and violated the Fourth Amendment; and (3) the fruits of the seizure, therefore, must be suppressed. We
accept Defendant's first contention: Circuit precedent mandates the conclusion that the bus check was a
"seizure." We, however, conclude that the agents' seizure of Defendant aboard the bus was reasonable under
the Fourth Amendment.4 The district court, therefore, did not err in denying Defendant's motion to suppress.
1. WHETHER THE BUS CHECK WAS A "SEIZURE"
A well-established principle of Fourth Amendment jurisprudence is that a seizure does not occur just
because a police officer approaches a person and asks the person a few questions. Florida v. Royer, 460 U.S.
491, 497-99, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983). The Supreme Court, accordingly, has said that
a bus check, where government agents board a bus and ask questions of the passengers, is not necessarily a
seizure. Florida v. Bostick, 501 U.S. 429, 435-39, 111 S. Ct. 2382, 2387-88, 115 L. Ed. 2d 389 (1991).
Instead, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter,
the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the
police presence and go about his business.' " Id. at 437, 111 S.Ct. at 2387.
In United States v. Washington, 151 F.3d 1354 (11th Cir.1998), this court considered the propriety
of a bus check conducted in a manner nearly identical to the bus check in this case (and, involving the same
4
Because we conclude that the bus check was reasonable under the Fourth Amendment, we need not
consider the Government's alternative contention that, even if the bus check was an unreasonable seizure, the
fruits of the bus check are nonetheless admissible under the inevitable discovery doctrine. See generally, Nix
v. Williams, 467 U.S. 431, 443-45, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377 (1984) (adopting inevitable
discovery exception to exclusionary rule).
4
officers). In that case, the two officers, casually dressed and with their weapons concealed, boarded a bus
at the Jacksonville bus station. The officers displayed their badges and announced:
Good morning, ladies and gentlemen. My partner and I are both federal agents with the United States
Department of Justice. No one is under arrest or anything like that, we're just conducting a routine
bus check. When we get to you, if we could please see your bus ticket, some photo identification if
you have some with you, please, and if you would please identify which bag[ ] is yours on the bus
we'd appreciate it and we'll be out of your way just as quick as we can.
Id. at 1355. The officers went to the rear of the bus and began working their way forward, speaking
individually with each passenger and asking them if they were carrying "drugs, weapons, large sums of
money, or firearms." Id. The officers stood behind each passenger as they spoke and did not block the
passenger's access to the aisle of the bus. Neither officer told the passengers that their cooperation was
voluntary. Id. at 1355-56. The court decided that, under those particular circumstances, the bus check
constituted a "seizure." Id. at 1357.
We see no important distinction between the conduct of the bus check in this case and the conduct
of the bus check in Washington. "[I]t is the firmly established rule of this Circuit that each succeeding panel
is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled
en banc, or by the Supreme Court." United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993). Given
the virtual identity of the essential facts, we, therefore, are bound by the Washington court's decision on the
question of seizure.5 Overcome by precedent, we must conclude that the bus check in this case amounted to
a "seizure" within the meaning of the Fourth Amendment.
2. WHETHER THE SEIZURE VIOLATED THE FOURTH AMENDMENT
5
That Washington controls our determination that this bus check is a seizure does not mean that every bus
check in this Circuit is a seizure. As the Supreme Court has acknowledged, whether a bus check constitutes
a seizure is a very fact-sensitive inquiry; for this very reason, the Supreme Court has rejected per se rules
governing bus checks. Bostick, 501 U.S. at 439, 111 S.Ct. at 2389. But, because we find the facts of legal
significance in this case identical to those in Washington, we conclude that Washington controls the seizure
issue in this case. See generally, New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1500 n. 7 (11th
Cir.1993) (Edmondson, J., specially concurring) (discussing precedential value of prior panel decisions).
5
Our conclusion that this bus check constitutes a seizure does not end our inquiry, however.6 Instead,
we must now examine whether the seizure was reasonable under the Fourth Amendment.7 The temporary,
investigative detention of a person is constitutionally permissible if there exists, at the time of the detention,
a reasonable suspicion that the person detained has been, is, or is about to be involved in criminal activity.8
United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir.1995). Because we conclude that such a reasonable
suspicion existed, at the time of the bus check, the district court did not err in denying Defendant's motion
to suppress.
Although reasonable suspicion "requires more than a hunch," id., "the requisite level of suspicion
to make an investigative stop is 'considerably less than proof of wrongdoing by a preponderance of the
evidence.' " United States v. Glover, 957 F.2d 1004, 1009 (2d Cir.1992) (quoting United States v. Villegas,
928 F.2d 512, 516 (2d Cir.1991)). In deciding whether the detaining officers had reasonable suspicion, we
look at the totality of the circumstances known to the detaining officers at the time of the detention. United
States v. Mikell, 102 F.3d 470, 475 (11th Cir.1996); United States v. Cruz, 909 F.2d 422, 424 (11th
Cir.1989). And, we view the totality of the circumstances in the light of the officers' special training and
6
"The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against
unreasonable searches and seizures." United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84
L. Ed. 2d 605 (1985) (emphasis in original).
7
Although Washington resolves the question of whether this bus check was a "seizure," it is wholly
inapposite to the second step of our inquiry: given that a seizure occurred, whether the seizure was a
reasonable one under the Fourth Amendment. In Washington, it does not appear that the Government
contended that (or that the court addressed whether), even if the bus check was a seizure, the seizure was
nonetheless reasonable: that is, the seizure was properly based upon the officers' reasonable suspicion or
probable cause. See Washington, 151 F.3d at 1357. In this case, the Government, however, vigorously
asserts that, even if the bus check was a seizure, it was a constitutionally valid seizure.
8
In general, a seizure is constitutionally infirm unless the seizing officer has probable cause. Lindsey v.
Storey, 936 F.2d 554, 558 (11th Cir.1991). Where, however, the seizure is brief and minimally intrusive—a
temporary, investigative detention—the seizing officer only need have "a reasonable articulable suspicion
based on objective facts that the person has engaged in criminal activity." United States v. Blackman, 66 F.3d
1572, 1576 (11th Cir.1995). Given the minimal degree of intrusiveness involved in the bus check in this case,
we treat the bus check as a temporary, investigative detention, requiring only a reasonable suspicion. See id.
at 1576-77.
6
experience. United States v. Brignoni-Ponce, 422 U.S. 873, 884-86, 95 S. Ct. 2574, 2582, 45 L. Ed. 2d 607
(1975); see also United States v. Cortez, 449 U.S. 411, 417-19, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981);
United States v. Bowles, 625 F.2d 526, 533-34 (5th Cir.1980). We also bear in mind that behavior, seemingly
innocuous to the ordinary citizen, may "appear suspect to one familiar with the practices of narcotics
couriers." Glover, 957 F.2d at 1010; see also United States v. Mendenhall, 446 U.S. 544, 562-65, 100 S. Ct.
1870, 1882, 64 L. Ed. 2d 497 (1980) (Powell, J., concurring); United States v. Gonzalez, 969 F.2d 999, 1004
(11th Cir.1992).
In this case, given Agent Savell's training and experience, we conclude that the totality of the
circumstances created a reasonable suspicion that Defendant and Bruton were engaged in criminal activity.
Defendant and Bruton both appeared nervous in the bus terminal. See United States v. Cruz-Hernandez, 62
F.3d 1353, 1356 n. 2 (11th Cir.1995) (considering suspect's nervousness as factor contributing to reasonable
suspicion). Defendant and Bruton's whispered conversation in the bus terminal and their joint transportation
of the suitcases made apparent that they were traveling together; yet, they waited separately in the bus
terminal, before the boarding call, apparently attempting to conceal their association. See Bowles, 625 F.2d
at 534-35 (considering suspects' "efforts to hide association" in airport terminal as factor contributing to
reasonable suspicion). Defendant and Bruton left their new, expensive suitcases unattended until immediately
before boarding; Agent Savell testified that this is a common practice among drug couriers. See Brignoni-
Ponce, 422 U.S. at 885, 95 S.Ct. at 2582 ("In all situations, the officer is entitled to assess the facts in light
of his experience in detecting [narcotics trafficking]."). The suitcases originated in Miami, a known "source
city" for narcotics on the East Coast. See Bowles, 625 F.2d at 534 (finding fact that suspect was traveling
from known drug source city "not an insignificant factor"). And, Bruton scanned and surveilled the terminal,
watching every person who passed by him in the bus station. See Mendenhall, 446 U.S. at 564, 100 S.Ct. at
1882 (Powell, J., concurring) (noting as factor in reasonable suspicion analysis that suspect "scanned the
7
entire gate area"); see also United States v. Puglisi, 723 F.2d 779, 789 (11th Cir.1984); Bowles, 625 F.2d
at 535; United States v. Barnard, 553 F.2d 389, 391-92 (5th Cir.1977).
We conclude that, at the time of the bus check, ample facts existed to give rise to a reasonable
suspicion that Defendant and Bruton were involved in criminal activity. The temporary, investigative
detention of Defendant aboard the bus, consequently, was reasonable under the Fourth Amendment. The
district court, therefore, properly denied Defendant's motion to suppress. Defendant's convictions and
sentence are AFFIRMED.
AFFIRMED.
8