U.S. v. Bryson

• Decision Date: 07 April 1997
• Docket Number: 96-1359 and 96-1362,Nos. 96-1265,s. 96-1265
• Citation: 110 F.3d 575
• Parties: , 46 Fed. R. Evid. Serv. 1098 UNITED STATES of America, Appellee, v. Linda Sue BRYSON, also known as Linda Sue Campbell, also known as Linda Nolting, also known as Karen Nolting, also known as Linda Sue Vehlewald, Appellant. UNITED STATES of America, Appellee, v. Henrietta FURNISH, also known as Hank, Appellant. UNITED STATES of America, Appellee, v. Ronnie FURNISH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 575

110 F.3d 575

65 USLW 2694, 46 Fed. R. Evid. Serv. 1098

UNITED STATES of America, Appellee, v. Linda Sue BRYSON, also known as Linda Sue Campbell, also

known as Linda Nolting, also known as Karen

Nolting, also known as Linda Sue

Vehlewald, Appellant.

UNITED STATES of America, Appellee, v. Henrietta FURNISH, also known as Hank, Appellant.

UNITED STATES of America, Appellee, v. Ronnie FURNISH, Appellant.

Nos. 96-1265, 96-1359 and 96-1362.

United States Court of Appeals,Eighth Circuit.

Submitted Nov. 21, 1996.

Decided April 7, 1997.

Sharon Jacksack, St. Louis, Missouri, argued for Bryson (Terry J. Flanigan, on the brief). John T. Yarbrough, St. Louis, Missouri, argued for Henrietta and Bonnie Furnish.

John James Ware, Assistant U.S. Attorney, St. Louis, Missouri, argued for appellee.

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE, ¹ District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The three defendants were indicted, along with seven others, on one count of conspiracy to distribute, and to possess with the intent to distribute, more than one kilogram each of methamphetamine and heroin. See 21 U.S.C. § 841(a)(1), § 846. The conspiracy was alleged to have existed between December, 1992, and June, 1995. After a two-day trial, a jury convicted Linda Bryson. After a separate seven-day trial, a jury convicted Ronnie Furnish and Henrietta Furnish (who are husband and wife) and three co-defendants whose cases we do not address in this opinion.

Ms. Bryson and Mr. Furnish appeal both their convictions and their sentences. Ms. Furnish appeals only her conviction. We affirm the convictions of all three defendants but remand the cases of Ms. Bryson and Mr. Furnish for resentencing.

I.

As far as we can tell, Ms. Bryson was first arrested in late March, 1995. We note the date of Ms. Bryson's initial arrest because of the wording of her pretrial motions to suppress, both of which requested the exclusion of "all statements ... taken from [Ms. Bryson] ... at any time following her initial arrest." Despite the specificity of those requests, however, at hearings on pretrial motions, both Ms. Bryson and the government seemed to assume that Ms. Bryson was challenging the admissibility of statements that she gave in June, 1994, during a police interview at the St. Louis airport and in February, 1995, during a police interview at her residence, even though both of those dates are prior to her initial arrest. Both parties presented proof on those issues.

Ms. Bryson's motions to suppress also requested the exclusion of "all evidence obtained ... by means of a search ... of [Ms. Bryson's] residence." Despite the specificity of that request, however, at hearings on pretrial motions, both Ms. Bryson and the government seemed to assume that Ms. Bryson was challenging the admissibility of money and hypodermic needles found in a search of her luggage during the airport interview, even though that search was not at her residence. Both parties presented evidence on that issue.

The magistrate judge ² who conducted the hearings on pretrial motions made findings of fact and recommendations with respect to the statements and evidence described above. The trial court ruled on those issues as well. Even on appeal, the government says nothing about this apparent discrepancy between the motions and the proof.

Under these circumstances, we too are inclined to address all of the matters argued in the trial court, proceeding as if Ms. Bryson's motions requested the exclusion of "all statements" and "all evidence obtained ... by means of a search." See, e.g., 3 C. Wright, Federal Practice and Procedure: Criminal 2d § 673 at 769 (1982). See also United States v. Hall, 565 F.2d 917, 919-20 (5th Cir.1978); United States v. Wylie, 462 F.2d 1178, 1182 (D.C.Cir.1972); and United States v. Lucas, 360 F.2d 937, 938 (6th Cir.1966) (per curiam ), cert. denied, 385 U.S. 875, 87 S.Ct. 152, 17 L.Ed.2d 102 (1966). We therefore turn to each of the incidents referred to above.

II.

In June, 1994, acting on suspicion that Ms. Bryson might be "involved in drugs," a police officer stopped Ms. Bryson and a friend at the St. Louis, Missouri, airport, identified herself to them as a police officer, and asked if Ms. Bryson was going to Los Angeles; Ms. Bryson said that she was. (We recount the facts as found by the magistrate judge based on the testimony of two police officers at a suppression hearing; Ms. Bryson did not testify.) The officer was not wearing a uniform, and her weapon was not visible. The officer then asked Ms. Bryson if they could talk; Ms. Bryson agreed.

The police officer asked if she could see Ms. Bryson's ticket, and Ms. Bryson gave the officer the ticket. The officer then asked if Ms. Bryson was the person whose name was on the ticket. Ms. Bryson responded that the ticket was in her sister's name but that her sister was unable to go. When asked for some identification, Ms. Bryson offered a driver's license in the name of "Linda Campbell." The officer then returned the ticket and the driver's license and asked Ms. Bryson why she was going to California; Ms. Bryson's response was that she was going to visit a friend but that the friend "doesn't have anything to do with this."

At that point, the police officer asked if she could search Ms. Bryson's carry-on bag. Ms. Bryson agreed, and the officer searched the bag but found nothing of moment. Approximately three minutes had elapsed since the officer had first stopped the two women. The officer then asked about checked bags, and Ms. Bryson said that she had four and gave her ticket envelope (with claim checks attached) to the officer. When asked if the officer could search her checked bags, Ms. Bryson agreed.

In the meantime, a second police officer (who had been interviewing Ms. Bryson's friend) had arrested the friend for possession of marijuana and methamphetamine, a development of which Ms. Bryson was aware. The officers told Ms. Bryson that they were detaining her friend, and the officer who had been questioning Ms. Bryson asked if she would return to the office with them. When asked to observe the search of her checked bags, Ms. Bryson agreed to do so. Approximately 20 to 30 minutes had elapsed since the search of Ms. Bryson's carry-on bag.

During the search of Ms. Bryson's checked bags, the police officers found approximately $12,000 and some hypodermic needles. A drug dog alerted "positive" to the money as having "a narcotic odor." Although they did not arrest Ms. Bryson, the officers seized the money. In an interview with the second officer after the money was discovered, Ms. Bryson at first asserted that the money belonged to someone whose name it was not in her best interest to give. When asked to whom a receipt should be made out, however, she said that the money belonged to her.

Ms. Bryson moved to suppress the money and hypodermic needles found in her checked bags and her statements to the police officers. She asserted that when the officers asked her to accompany them to their office and retrieved her checked bags, a consensual encounter became a seizure that lacked probable cause, and thus that the money and hypodermic needles should be suppressed. She argued, as well, that because she was not given the warnings required under Miranda v. Arizona, 384 U.S. 436, 467-73, 478-79, 86 S.Ct. 1602, 1624-27, 1629-31, 16 L.Ed.2d 694 (1966), for custodial interrogations, her statements should be suppressed.

The magistrate judge concluded that Ms. Bryson's encounter with the police officers never turned into a seizure. The trial court agreed. Ms. Bryson does not challenge any of the magistrate judge's factual findings as clearly erroneous. See, e.g., United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.1991) (en banc ), cert. denied, 502 U.S. 985, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). Rather, the essence of her argument on appeal is that the trial court erred in concluding that no seizure occurred. We review de novo the conclusion that no seizure occurred. See, e.g., id. at 1424, 1426.

Generally, a seizure within the meaning of the fourth amendment occurs only if, considering all of the circumstances of the incident, a reasonable person would believe that he or she is not free to leave. See, e.g., id. at 1415, 1416 n. 3. The courts have recognized the "fact-intensive" yet "imprecise nature of [the] inquiry." Id. at 1419. "The test is necessarily imprecise, because it is designed to assess the coercive nature of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). We consider, therefore, whether all of the circumstances involved in Ms. Bryson's initial encounter with the police officers were "so intimidating, threatening or coercive that a reasonable person would not have believed himself [or herself] free to leave." United States v. McKines, 933 F.2d at 1419.

Ms. Bryson directs our attention to Buffkins v. City of Omaha, 922 F.2d 465, 469 (8th Cir.1990), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991), in which our court held that a seizure occurred when two police officers "requested [the defendant] to accompany them to the office ... [and] at that time seized her luggage ... [by] picking [it] up." In that case, however, the officers told the defendant's friend that she was "free to go" but made no such statement to the defendant. Indeed, our court specifically concluded that the "officers' conflicting statements" to the defendant and her friend would have led to a reasonable belief on the defendant's part that she was not free to go. Id. In Ms. Bryson's case, it was Ms. Bryson's friend who was arrested, and thus "had no choice but to go with the officers," id., and Ms. Bryson who could have "reasonably infer[red]," id., that she, in contrast to her friend, was free to go. We note as...