United States v. Keith A. Va Lerie

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3394
___________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Keith A. Va Lerie, *
*
Appellee. *
___________
Submitted: April 12, 2005
Filed: October 3, 2005
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Before LOKEN, Chief Judge, McMILLIAN, WOLLMAN, ARNOLD, MURPHY,
BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON,
Circuit Judges, en banc.
___________
RILEY, Circuit Judge.
Keith Va Lerie (Va Lerie) was charged with possession with intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1), after
members of the Nebraska State Patrol (NSP) discovered cocaine inside Va Lerie’s
checked luggage at a Greyhound bus station. The district court granted Va Lerie’s
motion to suppress evidence, including the cocaine, concluding (1) the NSP
unlawfully seized Va Lerie’s checked luggage by removing it from the bus and to a
room of the bus terminal to seek Va Lerie’s consent to search the luggage; and
(2) Va Lerie’s apparent consent to a search of his luggage did not remove the taint of
the unlawful seizure. This appeal primarily asks whether the NSP’s removal of
Va Lerie’s checked luggage from the bus’s lower luggage compartment to a room
inside the bus terminal to seek Va Lerie’s consent to search the luggage constituted
a Fourth Amendment seizure. Reversing the district court’s seizure decision, we hold
such conduct did not constitute a seizure, because the removal of the luggage did not
(1) delay Va Lerie’s travel or significantly impact Va Lerie’s freedom of movement,
(2) delay the timely delivery of the checked luggage, or (3) deprive Greyhound of its
custody of the checked luggage. This appeal secondarily asks whether Va Lerie
voluntarily consented to a search of his luggage. We conclude he did. Therefore, we
reverse the district court’s decision granting Va Lerie’s motion to suppress, vacate its
suppression order, and remand for proceedings consistent with this opinion.
I. BACKGROUND
On December 23, 2002, Va Lerie was traveling on a Greyhound bus from Los
Angeles, California, to Washington, D.C., when the bus stopped around noon for
refueling at the Greyhound station in Omaha, Nebraska. During refueling and
cleaning, Greyhound required its passengers to get off the bus and wait inside the bus
terminal. NSP Investigator Alan Eberle (Investigator Eberle) was performing drug
interdiction duties at the Greyhound station when Va Lerie’s bus stopped for
refueling. During the refueling, Investigator Eberle looked inside the bus’s lower
luggage compartments, and he found a newer piece of luggage displaying a baggage
ticket with Va Lerie’s name, but no telephone number or passenger name tag. When
Investigator Eberle went to the rear baggage terminal to run a computer check of the
luggage’s claim number, he discovered the passenger had paid cash on the day of
travel for a one-way ticket to Washington, D.C. Investigator Eberle asked a fellow
law enforcement officer to remove the luggage from the bus and take it to a room
inside the rear baggage terminal. Law enforcement removed the luggage from the bus
and took it to the rear baggage terminal to seek the passenger’s permission to search
the luggage, as opposed to bringing the passenger to the bus in the refueling area,
because “Greyhound does not want to have passengers walking over by the refueling
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area.” Even though law enforcement took the luggage to the rear baggage terminal,
Investigator Eberle testified the luggage “was not in our custody[, but] was still in
Greyhound’s custody.”
Investigator Eberle then paged Va Lerie, who approached the ticket counter.
Investigator Eberle, wearing jeans, a t-shirt and a winter coat, displayed his badge,
identified himself as a law enforcement officer, and informed Va Lerie he was not in
trouble or under arrest. After Va Lerie agreed to speak with Investigator Eberle,
Va Lerie displayed his bus ticket and identification, which matched the information
on the luggage which had been removed from the bus. Va Lerie then agreed to follow
Investigator Eberle to a room in the rear baggage terminal where Va Lerie’s luggage
was being held. The room had two open doors, and one or two other officers were
already inside the room. Va Lerie confirmed the luggage belonged to him.
Investigator Eberle then declared he was a narcotics investigator who was watching
for people who might be transporting illegal drugs. When Investigator Eberle sought
permission to search the luggage, Va Lerie made an affirmative verbal response to the
request for consent to the search. After Va Lerie verbally consented to a search of his
luggage, another officer took approximately one minute to execute the search.
During the search, Va Lerie never objected, but he claimed the luggage actually
belonged to a friend. Law enforcement discovered five vacuum-sealed bags
containing cocaine inside Va Lerie’s luggage.
Va Lerie was charged with possession with intent to distribute 500 grams or
more of cocaine. 21 U.S.C. § 841(a)(1)-(b)(1). In two separate motions, Va Lerie
moved to suppress the evidence discovered from the December 23 search, arguing the
search violated the Fourth Amendment because (1) the search was conducted without
a search warrant, and (2) Va Lerie did not knowingly, intelligently, and voluntarily
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consent to the search.1 Nothing in Va Lerie’s motions claimed his luggage had been
unlawfully seized when the luggage was removed from the luggage compartment to
the rear baggage terminal.
At the beginning of the suppression hearing in front of a magistrate judge,
Va Lerie’s attorney stated, “With respect to [the motions to suppress], Judge, very
simple. Question of consent, no consent. Bus stop.” The government agreed “[t]he
issue on the search is simply whether . . . consent exists or doesn’t exist.” During the
suppression hearing, Va Lerie’s attorney implied, for the first time, he also was
arguing an unconstitutional seizure occurred. At that point, the magistrate judge
informed Va Lerie’s attorney his suppression “motion deals with a search of the bag
and probably not the seizure of the bag.” Va Lerie’s attorney replied, “That’s not the
input. It’s a Fourth Amendment violation. I’m not restricting it to–he never
consented to that being–that bag being seized and searched.” At that point, the
magistrate judge allowed Va Lerie to expand his motion to suppress to include an
unconstitutional seizure argument.
With the seizure issue before the court, the magistrate judge repeatedly asked
Va Lerie’s attorney to explain how “the relocation of the garment bag” from the lower
luggage compartment to a room inside the terminal, in compliance with Greyhound’s
request not to take passengers to the refueling area, constituted a seizure under the
Fourth Amendment. Va Lerie failed to provide the judge with authority supporting
his position. The government then asked the judge to force Va Lerie “to establish
some case law that I could respond to that somehow makes this removal of the bag
from the bus in the cleaning area to the baggage room to present it to its owner is a
constitutional violation.” Va Lerie’s attorney failed to respond to the government’s
plea for authority to support the seizure contention. The magistrate judge then gave
1
Va Lerie also moved to suppress statements he made on December 23. The
district court suppressed those statements, and they are not an issue in this appeal.
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the parties opportunities to file post-hearing briefs, which only the government filed.
Noting Va Lerie did not file a brief and never cited a single authority supporting his
seizure position, the government noted it did not know of any authority supporting
Va Lerie’s seizure argument. Thus, the government focused its argument on the
consent-to-search issue. Nonetheless, the government maintained “there is no
constitutional issue in the officers removing the bag from the bus in the cleaning area
to the baggage room which procedure was the one Greyhound, the bailee of the bag,
had asked the officers to follow.”
The magistrate judge determined the removal of Va Lerie’s luggage to a room
inside the rear baggage terminal was not an unreasonable seizure under the Fourth
Amendment because (1) Investigator Eberle had “the requisite level of reasonable
articulable suspicion in order to briefly detain the bag,” and (2) “the removal of the
bag was done in accordance to an understanding between Greyhound and the NSP to
prevent passengers from walking into the refueling area.” After judging the
credibility of both Va Lerie and Investigator Eberle, the magistrate judge concluded
Va Lerie voluntarily consented to the search of his luggage. In support of this
conclusion, the magistrate judge found (1) Va Lerie, a 37-year-old with three years
of college education, verbally consented to the search; (2) Va Lerie understood
Investigator Eberle’s questions; (3) Va Lerie was not impaired; (4) Investigator
Eberle displayed his badge, explained he was a narcotics officer, informed Va Lerie
he was not in trouble or under arrest, asked Va Lerie to follow him to the rear
baggage terminal, and asked Va Lerie for consent to search his luggage; (5) the search
occurred in a room with two open doors in the presence of two to four officers; and
(6) no evidence showed Va Lerie was under coercion or duress during his encounter
with law enforcement. Based on findings that law enforcement had reasonable
articulable suspicion to detain Va Lerie’s luggage and Va Lerie voluntarily consented
to the search of his luggage, the magistrate judge recommended the district court deny
Va Lerie’s motion to suppress the evidence obtained as a result of the search of the
luggage.
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Va Lerie objected to the magistrate judge’s recommendations that (1) the
seizure of Va Lerie’s luggage was reasonable, and (2) Va Lerie consented to the
search. The government filed no objections to the magistrate judge’s
recommendation that Va Lerie’s motion to suppress evidence be denied.2
Without holding another hearing, the district court considered Va Lerie’s
objections to the magistrate judge’s report and recommendation. Addressing the
seizure issue, the district court concluded “the removal of [Va Lerie’s checked
luggage] and its sequestration in a room of the bus terminal constituted an
unconstitutional seizure in violation of [Va Lerie]’s Fourth Amendment rights
because they occurred without consent, reasonable suspicion, probable cause, or a
warrant.”
After concluding law enforcement unconstitutionally seized Va Lerie’s
checked luggage, the district court then considered “whether [Va Lerie]’s alleged
consent to the search of the bag removed the taint of the unlawful seizure.” In
addressing this issue, the district court asked whether Va Lerie’s consent was
voluntarily given, and, if so, whether the “consent to the search was an independent
act of free will that broke the causal chain between the unconstitutional violation and
the consent.”
Regarding the voluntariness of Va Lerie’s consent to the search of his luggage,
the district court noted Va Lerie was a sober adult of normal intelligence; Va Lerie
voluntarily responded to Investigator Eberle’s page; Va Lerie acquiesced in
Investigator Eberle’s request to accompany him to a room with two open doors in the
rear baggage terminal where at least two other officers were waiting with Va Lerie’s
2
Not relevant to this appeal, the government objected to the magistrate judge’s
recommendation that Va Lerie’s suppressed statements could not be used at trial for
impeachment purposes. Overruling the government’s objections, the district court
suppressed Va Lerie’s statements. The government has not appealed that decision.
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luggage; Investigator Eberle testified Va Lerie consented; Va Lerie’s “own testimony
indicates that he did not object to the search”; Investigator Eberle was not in uniform
and did not display his weapon; and no law enforcement officer directly threatened
or coerced Va Lerie. Based on these findings, the district court, however, concluded
Va Lerie did not voluntarily consent to the search, because “there is no reason to
believe [Va Lerie] or anyone else–even most lawyers–would know that they could
refuse the request to search the bag.” Furthermore, the district court noted Va Lerie
“was alone, in a private room, with at least two armed police officers,” and the
officers already had Va Lerie’s luggage when they asked for consent to search it.
The district court then considered whether Va Lerie’s apparent consent purged
the unlawful taint of the unconstitutional seizure. In considering this question, the
district court noted little time had passed and no significant intervening events had
occurred between the unlawful seizure and Va Lerie’s apparent consent. The district
court concluded the law enforcement officers’ purpose in removing the luggage was
to obtain incriminating evidence, and their accommodation of Greyhound’s request
not to bring passengers to the refueling area, a policy of Greyhound for over a year,
was irrelevant. Thus, the district court determined Va Lerie’s “apparent acquiescence
[in the search] did not remove the taint of the illegal seizure.” Based upon this
reasoning, the court held “the evidence obtained in the search after the illegal seizure
is ‘fruit from a poisonous tree.’” Sustaining Va Lerie’s objections to the magistrate
judge’s report and recommendation, the district court granted Va Lerie’s motion to
suppress.
Acting with the approval of the United States Solicitor General, the
government timely filed this appeal. The government’s main contention is the NSP’s
removal of Va Lerie’s checked luggage from the bus’s luggage compartment to the
rear baggage terminal to seek permission to search does not constitute a seizure under
the Fourth Amendment, “because there was no meaningful interference with
[Va Lerie]’s possessory interest in the [luggage] on the part of the investigating
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officers.” Depending on this court’s resolution of the seizure issue, the government
also contends the district court should have adopted the magistrate judge’s
recommendation that Va Lerie consented to the search of his luggage.
A divided panel of this court affirmed the district court’s suppression of the
evidence obtained as a result of the search of Va Lerie’s luggage. United States v.
Va Lerie, 385 F.3d 1141, 1150 (8th Cir. 2004). In reaching this conclusion, the panel
majority held Va Lerie’s luggage “was seized within the meaning of the Fourth
Amendment when [Investigator] Eberle had the bag removed from the bus, taken to
a room inside the rear baggage terminal, and detained while the officer endeavored
to locate the bag’s owner and obtain consent to search the bag.” Id. at 1148. Because
the government conditioned its consent argument on prevailing with its seizure
argument, the panel held the government “waived the argument that [Va Lerie]’s
consent purged the taint of the illegal seizure if an illegal seizure occurred.” Id. at
1148-49. Thus, the panel never considered “whether the district court clearly erred
in its findings concerning the voluntariness of defendant’s alleged consent.” Id. at
1150. Two panel members urged the en banc court to “re-visit the issue of what
constitutes a seizure in the context of a temporary removal and inspection of packages
and luggage that have been sent or checked with common carriers.” Id. at 1151
(Melloy, J., concurring); id. (Riley, J., dissenting). The en banc court vacated the
panel’s opinion and granted rehearing en banc.
II. DISCUSSION
A. Standard of Review
In considering the district court’s suppression of evidence, we review the
district court’s conclusions of law de novo and its factual findings for clear error.
United States v. Barry, 394 F.3d 1070, 1074 (8th Cir. 2005). We will affirm the
district court’s order granting Va Lerie’s “motion to suppress ‘unless the decision is
unsupported by substantial evidence, is based on an erroneous view of the applicable
law, or in light of the entire record, we are left with a firm and definite conviction that
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a mistake has been made.’” Id. (quoting United States v. Welerford, 356 F.3d 932,
935 (8th Cir. 2004) (citation omitted)). Because a seizure decision involves a pure
question of law, we review de novo the district court’s holding that the removal of
Va Lerie’s luggage from the bus constituted a seizure in violation of the Fourth
Amendment. See United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001). We
review for clear error the district court’s factual finding that Va Lerie did not
voluntarily consent to the search. Welerford, 356 F.3d at 935.
B. Seizure
Our federal Constitution mandates “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend. IV; see United States v. Ameling, 328
F.3d 443, 447 (8th Cir. 2003) (Fourth Amendment applies to states through the
Fourteenth Amendment). It can be argued our court has not spoken with a consistent
voice when considering what constitutes a seizure in cases involving law
enforcement’s interference with luggage or mailed packages.3 No matter the merits
3
Compare United States v. Gomez, 312 F.3d 920, 923-24 (8th Cir. 2002)
(finding “minimal interference with Gomez’s possessory interest” and holding no
seizure occurred when a drug interdiction officer at a U.S. Postal Service facility
moved a package to a command center twenty yards from a conveyor belt in a sorting
area), United States v. Vasquez, 213 F.3d 425, 426 (8th Cir. 2000) (holding no
seizure occurred when drug interdiction officers at a Federal Express facility
examined the outside of a package and subjected the package to a drug-sniffing dog),
United States v. Harvey, 961 F.2d 1361, 1363-64 (8th Cir. 1992) (holding no seizure
occurred when police removed luggage from a bus’s overhead luggage compartment
to the aisle below to subject the luggage to a drug-sniffing dog), and United States v.
Riley, 927 F.2d 1045, 1048 n.4 (8th Cir. 1991) (implying no seizure occurred when
police subjected an airline passenger’s checked luggage to a drug-sniffing dog), with
United States v. Morones, 355 F.3d 1108, 1111 (8th Cir. 2004) (holding seizure
occurred when a law enforcement officer at a Federal Express facility removed a
package from a conveyor belt to subject the package to a drug-sniffing dog), and
United States v. Demoss, 279 F.3d 632, 636 (8th Cir. 2002) (same). To the extent
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of that argument, we recognize a principled interpretation, and consistent application,
of the Seizure Clause of the Fourth Amendment, as explained by the Supreme Court
of the United States, is vital to the protection of civil liberties and also to law
enforcement’s ability to conduct itself in a constitutional manner in the modern era
where law enforcement’s duties safeguarding commercial transportation, whether by
air, land or sea, have never been more solemn. To that end, we strive to speak with
a clear voice when discussing the scope of the Seizure Clause.
The Fourth Amendment protects against both unreasonable searches and
unreasonable seizures. U.S. Const. amend. IV. Not surprisingly, the Supreme Court
has recognized the Search Clause is wholly distinct from the Seizure Clause, such that
courts applying these clauses must understand they provide different protections
against government conduct. See Segura v. United States, 468 U.S. 796, 806 (1984)
(“Different interests are implicated by a seizure than by a search.”). According to the
Supreme Court, a Fourth Amendment search “occurs when an expectation of privacy
that society is prepared to consider reasonable is infringed.” United States v.
Jacobsen, 466 U.S. 109, 113 (1984). On the other hand, a Fourth Amendment seizure
of property “occurs when there is some meaningful interference with an individual’s
possessory interests in that property.”4 Jacobsen, 466 U.S. at 113. While the Search
Clause protects an individual’s expectation of privacy, the Supreme Court has
these decisions are inconsistent with this opinion, they are no longer controlling
precedent in this circuit.
4
We are not dealing with a search issue; we are confronted with a seizure issue.
We also underscore this is not a seizure case involving luggage physically possessed
by a commercial bus passenger. See United States v. Place, 462 U.S. 696, 708 (1983)
(recognizing detention of luggage within passenger’s immediate possession intrudes
on passenger’s freedom of movement, such that the passenger’s travel plans may be
disrupted); cf. Hale v. Henkel, 201 U.S. 43, 76 (1906) (noting “a seizure contemplates
a forcible dispossession of the owner”). Instead, Va Lerie’s seizure case involves
checked luggage not in the passenger’s immediate possession.
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indicated the Seizure Clause relates, in part, to freedom of movement: “While the
concept of a ‘seizure’ of property is not much discussed in our cases, this definition
follows from our oft-repeated definition of the ‘seizure’ of a person within the
meaning of the Fourth Amendment–meaningful interference, however brief, with an
individual’s freedom of movement.” Id. at 113 n.5; see also Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 616 (1989) (“The initial detention necessary to
procure [] evidence may be a seizure of the person if the detention amounts to a
meaningful interference with his freedom of movement. Obtaining and examining
the evidence may also be a search if doing so infringes an expectation of privacy that
society is prepared to recognize as reasonable.”) (citations omitted). The Court also
has stated “not every governmental interference with an individual’s freedom of
movement raises such constitutional concerns that there is a seizure of the person.”
Skinner, 489 U.S. at 618. It necessarily follows that not every governmental
interference with a person’s property constitutes a seizure of that property under the
Constitution.
After announcing a seizure of property “occurs when there is some meaningful
interference with an individual’s possessory interests in that property,” the Court
concluded in Jacobsen that law enforcement’s exertion of dominion and control over
private property for its own purposes constituted a seizure in that case. Thus, the
facts of Jacobsen shed some light on how to apply the Supreme Court’s seizure
standard. In Jacobsen, Federal Express employees noticed a white powdery substance
inside a damaged package, which prompted the employees to contact the Drug
Enforcement Administration (DEA). When a DEA agent arrived and was told about
the white powdery substance, he opened the damaged package, removed four plastic
bags from a tube inside the package, removed traces of the white substance from the
plastic bags, and field tested the white substance. The field tests revealed the white
substance was cocaine. Other DEA agents also field tested the white substance.
When determining whether the agents unlawfully seized and searched the package,
the Court concluded the DEA “agents’ assertion of dominion and control over the
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package and its contents did constitute a ‘seizure.’” Id. at 120. After recognizing
“the Magistrate and the District Court found that the agents took custody of the
package from Federal Express after they arrived” even though the package’s owners
“had entrusted possession of the items to Federal Express,” the Court held “the
decision by governmental authorities to exert dominion and control over the package
for their own purposes clearly constituted a ‘seizure.’” Id. n.18. Notwithstanding the
Court’s seizure decision, the Court concluded the seizure was not unreasonable
because the agents had probable cause to believe the package contained contraband.
Id. at 121-22.
We do not believe the Court meant to express two different standards–i.e.,
meaningful interference with a person’s possessory interests and dominion and
control–when instructing courts how to apply Fourth Amendment seizure principles.
Instead, we believe the Court referenced dominion and control when applying the
seizure standard. That is, we believe the Court concluded law enforcement’s exertion
of dominion and control over the package for its own purposes–and in contravention
to Federal Express’s custody of the package–constituted a seizure under the Fourth
Amendment because it constituted some meaningful interference with a person’s
possessory interests. Thus, the seizure standard prohibits the government’s
conversion of an individual’s private property, as opposed to the mere technical
trespass to an individual’s private property. See, e.g., United States v. Karo, 468 U.S.
705, 712-13 (1984) (explaining the existence of a mere technical physical trespass to
an individual’s property “is only marginally relevant to the question of whether the
Fourth Amendment has been violated,” as “[a] ‘seizure’ of property occurs when
‘there is some meaningful interference with an individual’s possessory interests in
that property’”) (quoting Jacobsen, 466 U.S. at 113); Jacobsen, 466 U.S. at 124-25
(stating “the field test [of the white substance] did affect respondents’ possessory
interests protected by the [Fourth] Amendment, since by destroying a quantity of the
powder it converted what had been only a temporary deprivation of possessory
interests into a permanent one”); W. Page Keeton, et al., Prosser and Keeton on The
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Law of Torts § 15 at 92, 102 (5th ed. 1984) (recognizing the tort of conversion differs
from the tort of trespass in that conversion requires “an intent to exercise a dominion
or control over the goods which is in fact inconsistent with the [owner]’s rights,” and
noting “[t]he gist of conversion is the interference with control of the [owner’s]
property”). Because we do not believe Jacobsen enunciated separate standards for
seizure cases, we will not concern ourselves with trying to apply “both” standards.
Instead, we will focus on whether the NSP’s conduct constituted some meaningful
interference with Va Lerie’s possessory interests in his checked luggage.
Armed with the Supreme Court’s enunciation of Fourth Amendment seizure
principles, we ask whether law enforcement’s removal of a commercial bus
passenger’s checked luggage from the bus’s lower luggage compartment to a room
inside the bus terminal to seek the passenger’s consent to search the luggage
constitutes some meaningful interference with the passenger’s possessory interests
in his luggage.
Seizure issues involving checked luggage are hardly new for circuit courts. A
number of circuit court decisions addressing seizure issues similar to this case support
our holding the NSP did not seize Va Lerie’s checked luggage, because the removal
of the luggage did not delay his travel or significantly impact his freedom of
movement, affect the timely delivery of the checked luggage, or deprive Greyhound
of its custody of the checked luggage. Nearly two decades ago, the Fifth Circuit
confronted a similar case. In United States v. Lovell, 849 F.2d 910 (5th Cir. 1988),
border patrol agents saw a nervous airline passenger check his luggage. The agents
then went to the airline baggage area, removed the passenger’s checked luggage from
the baggage conveyor belt, and compressed the sides of the luggage several times.
When compressing the sides of the luggage, the agents smelled marijuana. The
agents then subjected the detained luggage to a drug-sniffing dog, which alerted to
the luggage. Based on this information, the agents obtained a search warrant,
searched the luggage, and discovered sixty-eight pounds of marijuana. Id. at 911.
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After being charged with possession with intent to distribute, the defendant moved
to suppress the marijuana, claiming “the agents’ removal of his luggage from the
conveyor belt and their manipulation and sniff of that luggage constituted a seizure
and search within the meaning of the fourth amendment.” Id. at 912. The district
court denied the motion to suppress, and the Fifth Circuit affirmed, holding the agents
did not seize the defendant’s luggage. Id. at 916.
In considering whether the agents’ conduct constituted some meaningful
interference with the defendant’s possessory interests in his checked luggage, i.e.,
whether a seizure had occurred, the Fifth Circuit focused on the defendant’s freedom
of movement and his expectation of timely delivery of his checked luggage. See id.
The court quoted Jacobsen and distinguished Place, noting the defendant “had
surrendered his bags to a third-party common carrier with the expectation that the
carrier would transport the bags to [the defendant]’s destination for him to reclaim
when he arrived” and the defendant’s travel would not “have been interfered with or
his expectations with respect to his luggage frustrated” had the agents not smelled
marijuana. Id. Thus, the court held “[t]he momentary delay occasioned by the bags’
removal from the conveyor belt was insufficient to constitute a meaningful
interference with [the defendant]’s possessory interest in his bags.” Id.
The Ninth Circuit later adopted the Fifth Circuit’s approach in Lovell in a case
similar to the one we confront today. In United States v. Brown, 884 F.2d 1309 (9th
Cir. 1989), the defendant, who appeared to be nervous, checked his new luggage after
paying cash for a one-way airline ticket. Based on this information, law enforcement
agents had the defendant’s checked luggage “held.” Id. at 1310. The agents then
asked the defendant if they could speak with him, informed him he was not under
arrest and that he was free to leave, and asked if they could search his carry-on
luggage as well as his checked luggage. The defendant consented to a search of both
his carry-on and checked luggage. Because the checked luggage was locked, the
agents asked the defendant for the keys to the luggage. Even though the defendant
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claimed he did not have the keys to the luggage, he produced a set of luggage keys.
When the defendant refused to accompany the agents when they took the keys to try
them on the checked luggage, the agents handcuffed the defendant pending the
search. The search of the checked luggage produced two kilograms of cocaine. Id.
at 1310-11. The defendant moved to suppress the cocaine, contending the detectives
violated the Fourth Amendment by stopping him and holding his checked luggage.
After holding the agents’ initial contact with the defendant did not constitute
a seizure, the court addressed an issue of first impression for that circuit: “whether the
brief diversion of [the defendant]’s suitcases from their journey to the cargo hold was
a seizure,” i.e., whether the detention of the defendant’s checked luggage was a
meaningful interference with the defendant’s possessory interest in his luggage. Id.
at 1311. The court first acknowledged the Place distinction the Fifth Circuit drew in
Lovell “between taking property from a traveler’s custody and merely detaining bags
which the traveler has already relinquished to a third-party common carrier.” Id. The
court then noted that, had the defendant not consented to a search of his luggage, “the
brief detention of [the defendant]’s bags would have in no way interfered with his
travel or frustrated his expectations with respect to his luggage.” Id. Thus, the court
held the agents’ detention of the defendant’s luggage in the cargo hold area of the
terminal did not constitute a Fourth Amendment seizure.5 Id.
A few years after Brown, the Ninth Circuit again addressed a seizure case in
the context of checked luggage. In United States v. Johnson, 990 F.2d 1129 (9th Cir.
1993), an airline passenger, who purchased a one-way ticket with cash, checked in
late such that his checked luggage could not be placed on the same flight, but was
scheduled to be placed on the next flight leaving two hours after the passenger’s
flight. Without interfering with the passenger in any way, law enforcement officers
5
We note the court also held “[t]he district court properly found [the defendant]
consented to the search” of his luggage. Id. at 1311-12.
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received permission from the airline to go onto the tarmac to investigate the checked
luggage. When the officers asked an airline representative if they could take the
luggage inside the terminal, the airline representative allowed the officers to take the
luggage to an airline office inside the terminal, “but refused to relinquish custody of
the luggage to the Drug Enforcement Agency (DEA) office at the airport.” Id. at
1130. The airline representative later “allowed the officers, with the airline
representative present, to take the luggage to the DEA office” inside the airport. Id.
at 1130-31. However, “[t]he airline maintained custody of the luggage at all times.”
Id. at 1131. After the luggage was taken to the DEA office, a drug-sniffing dog was
called to the scene, at which time the luggage was taken into a hallway for the dog-
sniff. When the dog alerted to the luggage, the officers seized the bags, obtained a
search warrant, searched the luggage, and discovered 2.9 kilograms of cocaine base.
Applying Brown, the Ninth Circuit held no Fourth Amendment seizure occurred
before the dog sniff. Id. at 1132-33. The court explained its rationale for determining
no seizure occurred:
Here [the passenger]’s only interest was that the airline, as his bailee,
would place his luggage on the next plane, which was to leave about two
hours after his plane. The entire process of removing the luggage from
the cart, taking it from one office to the other, and having the dog sniff
it, was completed prior to the time the luggage would have been placed
on the airplane. The airline did not give up custody of the luggage to the
narcotics officers until after the dog had indicated the presence of
narcotics. . . . Because nothing that the officers did interfered with the
[passenger]’s possessory interests in his luggage prior to the dog
sniffing, there was no seizure of the luggage.
Id. at 1132.
The Seventh Circuit specifically has considered the consequences of police
interference with luggage checked with Greyhound. In United States v. Ward, 144
F.3d 1024 (7th Cir. 1998), the defendant in Los Angeles checked his luggage with
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Greyhound, which placed the luggage in the bus’s luggage compartment accessible
only from the outside. The defendant did not board the bus, but instead flew to the
bus’s destination in Indianapolis to await the bus and claim his luggage. When the
bus stopped for a passenger meal break in Springfield, Missouri, drug enforcement
officers looked inside the luggage compartment and noticed a suspicious piece of
luggage. When no passenger claimed ownership of the suspicious piece of luggage,
an officer removed the luggage to subject it to a dog-sniff. After the bus left the
station, the officers subjected the detained luggage to the dog-sniff, and the dog
alerted to the luggage. Once a search warrant was obtained, an officer searched the
luggage and discovered a kilogram of cocaine and a semi-automatic handgun loaded
with hollow-point bullets. Officers later apprehended the defendant as he attempted
to claim his luggage in Indianapolis. Id. at 1028.
Confronted with the question of whether the drug enforcement officers violated
the Fourth Amendment by removing the checked luggage from the bus’s luggage
compartment, the Seventh Circuit focused on the defendant’s possessory interests in
his luggage. Id. at 1030-34. Initially, the court noted the defendant “had no
cognizable interest in repossessing his bag until the bus arrived” at its destination.
Id. at 1031. The court explained that the defendant, by “surrender[ing] custody of the
bag to Greyhound . . . could reasonably have foreseen that the bag would be handled,
moved around, and even taken off the bus, whether at intermediate stops when the
driver might need to remove the bag to sort and/or gain access to other luggage, or
at a hub like St. Louis where the bag would have been transferred to another bus.”
Id. at 1032. The court concluded the defendant “could have no reasonable
expectation, in other words, that the bag would not be touched, handled, or even
removed from the bus prior to the bag’s arrival” at its destination. Id. Because the
defendant had few possessory interests in his checked luggage, and because he should
have expected his luggage would have been handled by strangers, the court held the
officers “did not ‘seize’ [the defendant]’s bag merely by touching and then removing
it from the luggage compartment. Handling the bag to that limited extent did not
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impinge on any of the rights that the Fourth Amendment protects.” Id. at 1033.
Focusing on the defendant’s expectations of timely regaining possession of his
luggage from Greyhound, the court noted the officers’ interference with the luggage
would have constituted a seizure only when it “interrupted the bag’s transport” and
“interfer[ed] with [the defendant]’s contractually-based expectation that he would
regain possession of the bag at a particular time.”6 Id.
In reviewing the Supreme Court’s enunciation of Fourth Amendment seizure
principles, as well as the approaches taken by the Fifth, Seventh and Ninth Circuits
in applying Fourth Amendment seizure principles to checked luggage cases, we make
a few observations of our own. Because seizure is defined as some meaningful
interference with an individual’s possessory interests in his property, not all police
interference with an individual’s property constitutes a Fourth Amendment seizure,
i.e., the police do not seize property every time they handle private property. By
requiring some meaningful interference with an individual’s possessory interests in
property, the Supreme Court inevitably contemplated excluding inconsequential
interference with an individual’s possessory interests. We also readily recognize the
Supreme Court instructed courts to consider an individual’s possessory interests in
his property in determining whether a seizure has occurred.
Applying the Supreme Court’s definition of seizure with an eye toward the
applications provided by the Fifth, Seventh and Ninth Circuits over the past seventeen
years, we glean a number of principles that relate to checked luggage cases. First, the
Fourth Amendment’s Seizure Clause prohibits the government from restraining an
individual’s freedom of movement. Thus, if law enforcement’s detention of checked
luggage delays a passenger’s travel or significantly impacts the passenger’s freedom
6
The Seventh Circuit also recognized the critical difference between removing
luggage from a passenger’s immediate possession and removing luggage checked
with Greyhound and placed in a luggage compartment with other luggage. See id. at
1032 (citing and distinguishing Place, 462 U.S. at 708-09).
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of movement, the Seizure Clause is implicated. Second, a commercial bus passenger
has less possessory interest in checked luggage than he has in carry-on luggage in his
immediate possession. To be certain, a passenger gives up his immediate possessory
interest when he checks his luggage with the commercial carrier as bailee. At a
minimum, the passenger’s possessory interests in his checked luggage entail the right
(or at least the expectation) to regain custody, i.e., reclaim immediate possession of
the checked luggage at the passenger’s or the luggage’s destination. Finally, a
commercial bus passenger who checks his luggage should reasonably expect his
luggage to endure a fair amount of handling–if his luggage were not handled, it would
not reach its destination. For instance, a commercial bus passenger’s checked
luggage must be sorted, loaded, rearranged, possibly transferred to another bus, and
unloaded. The luggage may be damaged and require removal from the luggage
compartment. If a bus breaks down, a passenger should expect his luggage to be
removed from the luggage compartment and either transferred to another bus or taken
inside the bus terminal. As long as law enforcement officers do not deprive the
commercial carrier of its custody of the checked luggage, no meaningful interference
with the passenger’s checked luggage occurs.
Boiling these principles down, we believe courts must focus on three factors
when considering whether law enforcement’s interference with checked luggage
constitutes a seizure. First, did law enforcement’s detention of the checked luggage
delay a passenger’s travel or significantly impact the passenger’s freedom of
movement? Second, did law enforcement’s detention of the checked luggage delay
its timely delivery? Third, did law enforcement’s detention of the checked luggage
deprive the carrier of its custody of the checked luggage?7 If none of these factors is
7
To test the breadth of the carrier’s custodial rights, we ask whether the
government’s actions go beyond the scope of the passenger’s reasonable expectations
for how the passenger’s luggage might be handled when in the carrier’s custody. See,
e.g., Ward, 144 F.3d at 1032.
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satisfied, then no Fourth Amendment seizure has occurred. Conversely, if even a
single factor is satisfied, then a Fourth Amendment seizure has occurred.
Our holding is consistent with the holdings of other courts that have confronted
seizure issues involving checked luggage. See, e.g., State v. Peters, 941 P.2d 228,
232 (Ariz. 1997) (en banc) (holding the “warrantless detention [of checked luggage
at an airport] for examination without reasonable suspicion is not a seizure and is
permissible if made in such a manner that neither the traveler nor his luggage is
unreasonably delayed”)8; State v. Goodley, 381 So. 2d 1180, 1182 (Fla. Dist. Ct. App.
1980) (“It is obvious that [an airline] traveler who checks his luggage has no
knowledge and, in fact, no real concern as to precisely where his bag may be located
within the airline’s custody at any given time. It follows that the slight movement [by
law enforcement] of [the defendant]’s unopened bag from the [baggage] cart to the
floor [about a foot away so a drug dog could conduct a sniff search] . . . did not, even
remotely, amount to a fourth amendment seizure . . . .”); cf. United States v. Gant, 112
F.3d 239, 240, 242 (6th Cir. 1997) (holding police officers’ removal of luggage from
an overhead compartment of a Greyhound bus to subject the luggage to a drug-
sniffing dog did not constitute a seizure under the Fourth Amendment).
8
Citing “modern conditions,” the Arizona Supreme Court stated, “Today police,
airport security personnel, and travelers must all be concerned not only that drugs
may be transported but that explosives, incendiary devices, and other items that
threaten the safety of those on the airplane may be stored in luggage in the airplane’s
baggage compartment. Travelers today expect and want luggage X-rayed, sniffed,
felt, and handled in a manner that is as non-intrusive as possible but consistent with
ensuring that the checked luggage does not contain items that threaten their safety.
Brief, non-intrusive detention of checked luggage for such examination no longer
invades the traveler’s reasonable expectation of privacy, does not unduly interfere
with possessory rights, and is not a seizure under the Fourth Amendment.” Id. at 231.
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Our holding also comports with the views expressed by many judges in this
circuit. See, e.g., Va Lerie, 385 F.3d at 1150 (Melloy, J., concurring) (opining “that
a brief detention of a piece of luggage that does not result in the delay of either the
passenger, or ultimate delivery of the luggage, is not a seizure”); Gomez, 312 F.3d
at 923-24 (Bowman, J., with Hansen and Bye, JJ.) (holding no seizure occurred when
a drug interdiction officer at a post office moved a package to a command center
twenty yards from a conveyor belt in a sorting area); Demoss, 279 F.3d at 640
(Hansen, J., concurring) (choosing “to cast my lot with those cases both from this and
other circuits indicating that a piece of luggage . . . delivered to a common carrier is
not ‘seized’ within the meaning of the Fourth Amendment until the authorities have
interfered with a possessory interest in the luggage . . . such that the expectation of
timely delivery of the . . . luggage has been frustrated”); Vasquez, 213 F.3d at 426
(Fagg, J., with Wollman and Murphy, JJ.) (holding no seizure occurred when drug
interdiction officers at a Federal Express facility subjected a package to a
drug-sniffing dog); Riley, 927 F.2d at 1048 n.4 (Gibson, John R., J., with Magill and
Beam, JJ.) (implying no seizure occurred when police subjected an airline passenger’s
checked luggage to a drug-sniffing dog); cf. Harvey, 961 F.2d at 1363-64 (per curiam
with Wollman and Hansen, JJ., and Lay, J., dissenting) (holding police officers’
removal of luggage from a bus’s overhead luggage compartment to subject the
luggage to a drug-sniffing dog during a refueling stop did not constitute a Fourth
Amendment seizure).
Having announced what we hope are manageable factors to consider when
confronted with seizure cases involving checked luggage, we now apply those factors
to this case. First, the NSP’s brief and temporary removal of Va Lerie’s checked
luggage from the luggage compartment to ask Va Lerie to consent to a search did not
delay Va Lerie’s travel or impact his freedom of movement. Va Lerie’s travel was
delayed, and his freedom of movement impacted, only after the NSP searched the
luggage and discovered a large amount of illegal drugs. Second, the NSP’s removal
of Va Lerie’s checked luggage from the bus did not affect the timely delivery of the
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luggage. No evidence suggests the luggage would not have been placed back on the
bus for transport to its destination had it not been for the discovery of illegal drugs.
Finally, Va Lerie’s possessory interests in his checked luggage certainly included an
expectation that Greyhound–or others at Greyhound’s request–would remove the
luggage from the lower luggage compartment. The NSP would have preferred to
bring Va Lerie to the bus in the refueling area to seek permission to search, but
Greyhound asked the NSP not to bring passengers to that area. Thus, the NSP
removed Va Lerie’s checked luggage from the lower luggage compartment to a room
inside the terminal at Greyhound’s request. In doing so, the NSP never deprived
Greyhound of its custody of Va Lerie’s checked luggage.9 We conclude the NSP’s
removal of Va Lerie’s checked luggage from the bus to a room inside the terminal to
seek consent to search did not constitute a meaningful interference with Va Lerie’s
possessory interests in his luggage. Therefore, no Fourth Amendment seizure
occurred.10
9
Had the NSP exerted dominion and control over Va Lerie’s luggage such that
it deprived Greyhound of its custody of the luggage, then a seizure would have
occurred. That is what happened in Jacobsen. Federal Express employees notified
the DEA that a damaged package contained a white powdery substance. When the
DEA agents arrived to search the package and test the white powdery substance, they
took custody of the package by exerting dominion and control over it for their own
purposes, i.e., they converted the package. The DEA agents were not going to return
the package to Federal Express until after the agents searched the package and tested
the white powdery substance. Here, the NSP never deprived Greyhound of custody
of the checked luggage, at least not until Va Lerie consented to a search that unveiled
cocaine. Indeed, the NSP adopted the policy of removing the luggage from the bus
to present to the owner to seek consent to search at Greyhound’s prompting. We see
little, if any, distinction between the NSP’s removal of the luggage to present it to Va
Lerie to seek consent to search and the NSP simply asking Va Lerie to consent to a
search.
10
The Fourth Amendment prohibits unreasonable seizures. Because the
government does not argue the NSP’s conduct was reasonable and because we hold
the removal of the luggage from the bus to seek Va Lerie’s consent to search did not
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C. Consent to Search
Contingent upon our reversal of the district court’s seizure decision, the
government asks us to reverse the district court’s finding Va Lerie did not voluntarily
consent to the search of his luggage. Because we reverse the district court on the
seizure issue, we must examine the district court’s consent decision. If Va Lerie
voluntarily consented to the search of his luggage, then no Fourth Amendment
violation occurred in this case. See Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973); United States v. Brown, 345 F.3d 574, 579 (8th Cir. 2003).
In determining whether Va Lerie voluntarily consented to a search of his
luggage, we must consider the totality of the circumstances surrounding the alleged
consent, paying particular attention to the following factors:
personal characteristics of the defendant, such as age, education,
intelligence, sobriety, and experience with the law; and features of the
context in which the consent was given, such as the length of detention
or questioning, the substance of any discussion between the defendant
and police preceding the consent, whether the defendant was free to
leave or was subject to restraint, and whether the defendant’s
contemporaneous reaction to the search was consistent with consent.
United States v. Jones, 254 F.3d 692, 696 (8th Cir. 2001). After listening to the
testimony of Investigator Eberle and Va Lerie, as well as viewing their actual
testimony to make credibility determinations, the magistrate judge found Va Lerie
voluntarily consented to the search of his luggage. Without the benefit of viewing
Investigator Eberle and Va Lerie as they testified, the district court conducted a de
novo review of the record. After reviewing the record, the district court rejected the
magistrate judge’s recommended finding that Va Lerie voluntarily consented to the
search of his luggage.
constitute a seizure, we do not address the reasonableness of the NSP’s conduct.
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Based on our review of the record and the district court’s findings, we conclude
the district court erred in rejecting the magistrate judge’s recommended finding that
Va Lerie voluntarily consented to the search of his luggage. The following factual
findings strongly support a finding Va Lerie voluntarily consented to the search: (1)
Va Lerie is 37 years old, has three years of college education, and enjoys normal
intelligence; (2) Va Lerie voluntarily responded to Investigator Eberle’s page; (3)
Investigator Eberle displayed his badge, explained he was a narcotics officer,
informed Va Lerie he was not in trouble or under arrest, and asked Va Lerie to follow
him to the rear baggage terminal; (4) Va Lerie acquiesced in Investigator Eberle’s
request to accompany him to a room with two open doors in the rear baggage terminal
where one or two other officers were waiting with Va Lerie’s luggage; (5)
Investigator Eberle asked Va Lerie for consent to search his luggage; (6) Va Lerie
verbally consented to the search, according to Investigator Eberle; (7) Va Lerie
understood Investigator Eberle’s questions; (8) Va Lerie was sober and not impaired;
(9) Va Lerie’s “own testimony indicates that he did not object to the search”; (10)
Investigator Eberle was not in uniform and did not display his weapon; and (11) no
law enforcement officer threatened or coerced Va Lerie.
The only findings the district court mentioned to support its no-consent
decision were (1) the district court’s statement “there is no reason to believe
[Va Lerie] or anyone else–even most lawyers–would know that they could refuse the
request to search the bag”; (2) the officers did not give Va Lerie any Miranda
warnings; (3) Va Lerie “was alone, in a private room, with at least two armed police
officers”; and (4) the officers already had Va Lerie’s luggage when they asked for
consent to search it.
Given the numerous facts supporting a finding of voluntary consent, we reject
the district court’s finding that Va Lerie did not voluntarily consent to the search of
his luggage. First, the district court surmised anyone, including attorneys, would not
have known they had the right to refuse to consent to the search of the luggage, and
-24-
noted the officers failed to give Va Lerie any Miranda warnings. The Supreme
“Court has rejected in specific terms the suggestion that police officers must always
inform citizens of their right to refuse when seeking permission to conduct a
warrantless consent search.” United States v. Drayton, 536 U.S. 194, 206 (2002).
Although Investigator Eberle did not specifically warn Va Lerie of the pitfalls of
consenting to a search of his luggage containing five vacuum-sealed packages of
cocaine, Investigator Eberle did seek permission to search the luggage, which implied
Va Lerie could refuse permission and, therefore, supports a finding of voluntary
consent. See id. at 207. We also recognize the record does not suggest Va Lerie did
not know he had the right to refuse to search; instead, the record reflects Va Lerie
expressly consented to the search and never objected to the search.11
Second, we are not persuaded that two or three officers being armed with
holstered firearms in a private room inside a bus terminal negates Va Lerie’s consent.
Id. at 205 (“That most law enforcement officers are armed is a fact well known to the
public. The presence of a holstered firearm thus is unlikely to contribute to the
coerciveness of the encounter absent active brandishing of the weapon.”). Taken in
context with the totality of the circumstances, these findings do not overcome the
district court’s other findings, both explicit and implicit, that “[t]here was no
application of force, no intimidating movement, no overwhelming show of force, no
brandishing of weapons, no blocking of exits, no threat, no command, not even an
authoritative tone of voice.” Id. at 204.
11
If the district court’s unsubstantiated observation that most lawyers do not
know the police have no right to search luggage without probable cause or consent
is correct, we would be sadly disappointed. The Supreme Court teaches, “In a society
based on law, the concept of agreement and consent should be given a weight and
dignity of its own. Police officers act in full accord with the law when they ask
citizens for consent. It reinforces the rule of law for the citizen to advise the police
of his or her wishes and for the police to act in reliance on that understanding. When
this exchange takes place, it dispels inferences of coercion.” Id.
-25-
Finally, we give little weight in this case to the officers’ presenting Va Lerie’s
checked luggage to him when requesting permission to search, because this evidence
does not transform the consensual encounter between the NSP and a bus passenger
into a coercive encounter. Given our holding that the NSP was not constitutionally
forbidden to remove the checked luggage from the bus to present the luggage to
Va Lerie to seek consent to search, we would be hard-pressed to conclude such a
presentation would be any different than simply asking Va Lerie for permission to
search his checked luggage. See, e.g., Brown, 884 F.2d at 1311-12 (holding airline
passenger voluntarily consented to a search of his checked luggage).
Accordingly, we reverse the district court’s erroneous consent determination,
because Va Lerie’s consent to search his luggage was voluntary.
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s decision granting
Va Lerie’s motion to suppress, vacate the court’s suppression order, and remand for
further proceedings consistent with this opinion.
WOLLMAN, Circuit Judge, concurring.
With the exception of footnotes 8, 9, and 11, which I view as unnecessary to
the resolution of the issues before us, I concur in the court's opinion.
COLLOTON, Circuit Judge, with whom McMILLIAN, ARNOLD, BYE and SMITH,
Circuit Judges, join, dissenting.
I believe the court’s holding conflicts with the Supreme Court’s decision in
United States v. Jacobsen, 466 U.S. 109 (1984). I therefore respectfully dissent.
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The question presented in this appeal is whether Nebraska State Police
investigators effected a “seizure” of Keith Va Lerie’s luggage, within the meaning of
the Fourth Amendment, when they took physical possession of his garment bag and
carried it from the Greyhound bus on which Va Lerie was traveling to a room in the
bus terminal, for the purpose of summoning Va Lerie and seeking his consent to
search the bag as part of their investigation of suspected drug trafficking. Although
the magistrate judge recommended denying Va Lerie’s motion to suppress on the
ground that investigators had “reasonable suspicion” to seize the bag, the government
has abandoned that argument on appeal, and does not otherwise argue that a seizure
of the luggage was “reasonable.” See Brief of Appellant at 5 (“[T]he United States
does not advance the proposition that there was reasonable suspicion to remove the
garment bag from the area where the bus was being refueled to the office in the bus
terminal itself. Rather, the United States argues that that activity does not constitute
a seizure for constitutional purposes.”) (emphasis in original); cf. United States v. Van
Leeuwen, 397 U.S. 249, 252-53 (1970). Nor does the government contend that Va
Lerie’s alleged consent to search the luggage was an independent act of free will that
purged the taint of any unconstitutional seizure. See United States v. Va Lerie, 385
F.3d 1141, 1149-50 (8th Cir. 2004); id. at 1150 (Melloy, J., concurring) (“The
government made the tactical decision to challenge the district court decision solely
on the grounds that the district court was wrong in its ruling that a seizure
occurred.”). The critical question before us, therefore, is whether the luggage was
“seized,” and Jacobsen dictates that the answer is yes.
Jacobsen involved a Federal Express package en route to the residence of
Bradley and Donna Jacobsen in Apple Valley, Minnesota. See United States v.
Jacobsen, 683 F.2d 296, 297-98 (8th Cir. 1982). The package was damaged by a
forklift at the Minneapolis-St. Paul airport Federal Express office, prompting Federal
Express employees to examine the contents. When they discovered a white powder
inside the package, Federal Express personnel notified the Drug Enforcement
Administration, and agents traveled to the airport to investigate. Federal Express
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employees invited an agent to examine the contents of the package, 466 U.S. at 119,
121, and after the box was placed on a desk in the Federal Express office, the agent
proceeded to reopen the package and conduct a “field test” on the white powder. Id.
at 111-12.
In discussing whether the DEA agents made an initial “seizure” of the package
before conducting the field test, the Court first made the general statement that “[a]
‘seizure’ of property occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” Id. at 113. In applying that
standard to the facts of Jacobsen, the Court concluded that “the agents’ assertion of
dominion and control over the package and its contents did constitute a ‘seizure.’”
Id. at 120. The Court explained that although the Jacobsens “entrusted possession of
the items to Federal Express, the decision by governmental authorities to exert
dominion and control over the package for their own purposes clearly constituted a
‘seizure,’ though not necessarily an unreasonable one.” Id. at 120 n.18. This holding
is consistent with the Court’s later observation that “[f]rom the time of the founding
to the present, the word ‘seizure’ has meant a ‘taking possession,’” and that “[f]or
most purposes at common law, the word connoted . . . bringing [an object] within
physical control.” California v. Hodari D., 499 U.S. 621, 624 (1991) (internal
citations omitted).
There is no viable distinction between this case and Jacobsen on the question
whether governmental authorities effected a seizure. Although Va Lerie entrusted
possession of his luggage to Greyhound, NSP investigators exerted dominion and
control over the luggage for their own purposes. That is, they identified the luggage
for investigation, took physical possession and control of the garment bag at the bus,
and moved it to a non-public room in the bus station, where three or four investigators
were present. United States v. Va Lerie, No. 8:03CR23, 2003 WL 21956437 (D. Neb.
Aug. 14, 2003), at *1, 4; United States v. Valerie, 2003 WL 21953948 (D. Neb. June
10, 2003), at *1 (report and recommendation). They did so for the purpose of
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furthering their law enforcement investigation of potential drug trafficking by
summoning Va Lerie and seeking his consent to search the luggage. Valerie, 2003
WL 21956437, at *1. According to Jacobsen, therefore, this action by the NSP
investigators constituted a seizure. 466 U.S. at 120 n.18.
Jacobsen cannot be distinguished on the ground that the DEA agents destroyed
a quantity of the white powder in the Federal Express package by conducting a field
test. Cf. ante, at 13 (citing Jacobsen, 466 U.S. at 124-25, for the proposition that “the
field test did affect respondents’ possessory interests”). The Court was clear that an
“initial ‘seizure’” involving a “temporary deprivation of possessory interests,” 466
U.S. at 124-25, took place when agents made “the decision . . . to exert dominion and
control over the package for their own purposes,” id. at 120 n.18, not when an agent
destroyed some of the powder. The Court separately analyzed the significance of the
field test, concluding that it reasonably “converted what had been only a temporary
deprivation of possessory interests into a permanent one.” Id. at 124-25. Nor did the
occurrence of the initial seizure in Jacobsen depend on the fact that agents intended
“to search the package.” Cf. ante, at 22 n.9. Jacobsen did not involve a Fourth
Amendment “search” at all, 466 U.S. at 120, 124, and the Court subsequently relied
on Jacobsen when it held unanimously that “seizures of property are subject to Fourth
Amendment scrutiny even though no search within the meaning of the Amendment
has taken place.” Soldal v. Cook County, 506 U.S. 56, 68 (1992).
Under the test applied by the court today, the initial seizure in Jacobsen would
not be a seizure. First, the initial seizure of the Federal Express package of course did
not delay any travel by the Jacobsens or impact their freedom of movement. Second,
there is no reason to believe the “temporary deprivation” occasioned by the “decision
. . . to exert dominion and control over the package” delayed the delivery of the
Jacobsens’ package, and the Court in no way relied on potential delay in announcing
its conclusion. In fact, after only a “short time” at the Federal Express office
(including further investigation beyond the initial seizure), the package was
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“rewrapped and Federal Express was directed to deliver the package to the addressee
shown on the label.” 683 F.2d at 297; see also 466 U.S. at 111-12.
And third, if law enforcement’s physical possession and control of Va Lerie’s
luggage – in a room inside the bus terminal without Greyhound personnel present –
did not temporarily deprive Greyhound of its custody of the luggage, then neither did
the DEA’s possession of the Federal Express package in Jacobsen deprive the courier
of its custody of the package. The majority says the NSP “never deprived Greyhound
of its custody” of the garment bag, because “NSP removed Va Lerie’s checked
luggage from the lower luggage compartment to a room inside the terminal at
Greyhound’s request.” Ante, at 22. By that reasoning, Federal Express surely was
not “deprived of custody” when the Jacobsens’ package was “placed on a desk” in the
Federal Express office, 466 U.S. at 111, and examined by a DEA agent, after Federal
Express employees “invited the federal agent to their offices for the express purpose
of viewing” the contents of the package. Id. at 119.12 And if the NSP did not exceed
12
The better view, in my judgment, is that the DEA agents in Jacobsen and the
NSP investigators in this case took “custody” of the package and luggage,
respectively, when they took physical possession and control of the containers for the
purpose of investigating their contents. See Black’s Law Dictionary 390 (7th ed.
1999) (defining “custody” as “the care and control of a thing . . . for inspection,
preservation, or security”); ante, at 19 (equating “custody” with “immediate
possession”). The subjective belief or assertion of an NSP investigator that Va
Lerie’s bag “was not in our custody,” ante, at 3, certainly is not dispositive, and the
district court made no finding that the investigators’ physical possession and control
of the luggage for investigative purposes did not amount to “custody” of the luggage.
Rather, the district court found that the NSP investigators “removed,” “detained,”
“seized,” “sequestered,” and exerted “thorough ‘dominion and control’” over the
garment bag. Va Lerie, 2003 WL 21956437, at * 2, 4, 8. Cf. Jacobsen, 466 U.S. at
120 n.18 (noting district court found that agents “took custody” of package, and
holding that exertion of “dominion and control” over package constituted a seizure).
In any event, under either approach to the issue of “custody,” there is no perceptible
distinction between this case and Jacobsen.
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Va Lerie’s “reasonable expectations for how the passenger’s luggage might be
handled,” ante, at 20 n.7, (despite no apparent evidence that Greyhound itself
typically moved checked luggage from the bus to rooms inside the terminal during
intermediate stops), then the DEA agents who effected the “initial seizure” of the
Jacobsens’ package (prior to the field test) certainly did not exceed reasonable
expectations about handling of the package by the private carrier when they merely
replicated what Federal Express itself already had done. 466 U.S. at 119-20. Thus,
the court’s three-factor test, as applied, conflicts with Jacobsen.
Although the court asserts that its new test comports with the views of many
judges in this circuit, ante, at 21-22, none of our prior holdings dictates the
conclusion reached today.13 To be sure, our court has recognized that not every
interference with a person’s property constitutes a “seizure” under the Fourth
Amendment, because some interferences are not “meaningful.” E.g., United States
v. Gomez, 312 F.3d at 923. But in arriving at its holding, the court is forced to
overrule or distinguish without explanation several decisions – rendered by some of
the same judges cited by the majority – recognizing that law enforcement’s exercise
of dominion and control over an object entrusted to a bailee, for the purpose of
conducting investigation beyond an observation of the object’s exterior, does
constitute a “seizure” under Jacobsen. See ante, at 9 n.3.
13
The only holdings said to be on point are United States v. Gomez, 312 F.3d
920, 923-24 (8th Cir. 2002), and United States v. Vasquez, 213 F.3d 425, 426 (8th
Cir. 2000). Gomez itself, however, stated that a seizure does occur when, as here, an
officer exerts dominion and control over an object “by deciding to go beyond a
superficial inspection of the exterior of the packages and to detain the packages for
further inquiry into characteristics that could not be observed by merely holding the
package.” 312 F.3d at 923 n.2 (citing Jacobsen, 466 U.S. at 121 n.18). Vasquez is
distinguishable, because it held that there was no seizure where officers did not take
possession of packages at a sorting station, but merely brought a narcotics dog to sniff
the packages as a Federal Express driver “continued to load the accumulated parcels
unimpeded.” 213 F.3d at 426.
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Most recently, in United States v. Morones, 355 F.3d 1108 (8th Cir. 2004), we
held that a deputy’s removal of a FedEx package from an outbound conveyor belt for
the purpose of subjecting the package to a canine sniff was a “meaningful
interference” with “possessory interests” under Jacobsen, despite the government’s
assertion that no evidence showed that the brief detention of the package would have
delayed its delivery. Id. at 1111. This holding followed ineluctably from Jacobsen,
which even analogized the field test for which the package was detained to a “sniff
test” by a trained narcotics dog. 466 U.S. at 123-24. We previously reached the same
conclusion in at least two other cases. United States v. Walker, 324 F.3d 1032, 1036
(8th Cir. 2003) (“It is clear under our precedent that when [the agent] moved the
package to a separate room for a canine sniff, the package was seized for Fourth
Amendment purposes.”); United States v. Demoss, 279 F.3d 632, 636 (8th Cir. 2002)
(“As Meyer moved the package away from the conveyor belt and detained the
package for a canine sniff, he ‘exert[ed] dominion and control over the package,’ that
is, the package was seized for Fourth Amendment purposes.”) (citing Jacobsen, 466
U.S. at 121 n.18); see also Gomez, 312 F.3d at 923 n.2; United States v. Fuller, 374
F.3d 617, 621 (8th Cir. 2004).
The three-judge panel that first heard this case acknowledged that Va Lerie’s
case is indistinguishable from Morones, Walker, and Demoss. Va Lerie, 385 F.3d at
1147-48; id. at 1150 (Melloy, J., concurring); see also id. at 1151-52 (Riley, J.,
dissenting) (declining to follow Morones, Walker, and Demoss). The court today
suggests no distinction. These precedents represent a faithful application of
Jacobsen, and we should follow them here.14
14
The four decisions from other circuits cited by the court do not provide
persuasive support for the conclusion that there was no seizure of Va Lerie’s luggage
under the rule of Jacobsen. None of the cited opinions even discussed the Supreme
Court’s analysis of the initial seizure in Jacobsen. In the Ninth Circuit decisions,
moreover, the private airlines – unlike Greyhound here – did not give up possession
and control of the passenger’s property until after a dog had indicated the presence
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The Supreme Court did not regard the initial seizure in Jacobsen as a close
question: The DEA’s possession and control of the package “clearly constituted a
‘seizure.’” 466 U.S. at 120 n.18 (emphasis added). This although the Jacobsens were
merely intended recipients who had never actually possessed the package, the initial
seizure would have occasioned no delay in delivery, and the package was examined
by a government agent at the invitation of Federal Express, in the office of the private
carrier, in the same manner that Federal Express previously had examined it.
Jacobsen must be our guiding light. Absent a revision of doctrine by the Supreme
Court, the NSP investigators effected a “seizure” of Va Lerie’s bag, and the order of
the district court should be affirmed.
______________________________
of narcotics or the passenger had consented to a search. United States v. Johnson,
990 F.2d 1129, 1130-31 (9th Cir. 1993) (explaining that an airline representative was
present with officers at all times, and that the airline refused to relinquish custody of
luggage to DEA); United States v. Brown, 884 F.2d 1309, 1310 (9th Cir. 1989)
(explaining that agents “arranged to have Brown’s [checked] luggage held” until he
granted consent). And the Seventh Circuit in United States v. Ward, 144 F.3d 1024
(7th Cir. 1998), held only that an agent did not “seize” a bag “merely by touching it
and then removing it from the luggage compartment” of a bus, and that a seizure did
occur when the agent’s decision to hold the bag for canine inspection interrupted the
bag’s transport. Id. at 1033. The court rendered no decision on a situation like Va
Lerie’s, where agents took possession and control of luggage for the purpose of
seeking consent to search, or a case like Morones, where agents exerted dominion and
control over a package in order to conduct a canine sniff, without delaying the
transport of the package.
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