146 F.3d 536 (8th Cir. 1998), 98-1318, United States v. Washington

Docket Nº:98-1318.
Citation:146 F.3d 536
Party Name:UNITED STATES of America, Appellant, v. Willie Roy WASHINGTON, Appellee.
Case Date:May 29, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 536

146 F.3d 536 (8th Cir. 1998)

UNITED STATES of America, Appellant,

v.

Willie Roy WASHINGTON, Appellee.

No. 98-1318.

United States Court of Appeals, Eighth Circuit

May 29, 1998

Submitted May 11, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied July

6, 1998. *

Robert C. Sigler, Asst.U.S.Atty., Omaha, NE, argued, for Appellant.

Howard N. Epstein, Omaha, NE, argued (John P. Steichen, on the brief), for Appellee.

Before McMILLIAN, ROSS, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The United States appeals from an order suppressing certain evidence that the district

Page 537

court held was procured in violation of the Fourth Amendment. We reverse.

I.

Last summer, a Greyhound bus stopped at the Omaha, Nebraska, bus station for cleaning and refueling, and all its passengers disembarked. Richard Lutter, an investigator for the Nebraska State Police, then entered the bus and visually inspected the luggage located in the overhead compartments. Mr. Lutter, noticing a black bag that still had manufacturer's tags on it, physically manipulated it, lifted it, and felt along its bottom. He testified that he could feel bundles "that were consistent with narcotics packaging." Mr. Lutter then left the bus and told other officers that he had located a suspicious bag.

When the passengers returned to the bus, the officers observed Willie Roy Washington place a piece of white paper in the bag. Shortly thereafter, Mr. Lutter observed Mr. Washington approach the bag, remove it from the overhead rack, place it on the seat next to him, and return it to the rack. Mr. Lutter and another officer then boarded the bus and asked the passengers collectively if any of them claimed ownership of the bag. When no one responded affirmatively, the officers asked each passenger individually whether he or she claimed ownership of the bag, and they all (including Mr. Washington) expressly denied ownership. (In fact, Mr. Washington identified a green bag as his, rather than the black bag about which the officers were inquiring.)

After all the passengers had denied ownership of the bag, the officers removed it from the bus and requested that Mr. Washington talk with them outside. After identifying themselves and their purpose, the officers again asked Mr. Washington if the black bag belonged to him, and he yet again denied that it did. The officers subsequently searched the bag and discovered more than seventeen pounds of cocaine in it. Although the bag itself contained nothing to indicate that Mr. Washington was the owner, the officers arrested him for possession of cocaine.

Mr. Washington moved to suppress evidence of the cocaine on the ground that the officers had obtained it in violation of the Fourth Amendment. After an evidentiary hearing, a magistrate judge recommended that Mr....

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