424 F.3d 694 (8th Cir. 2005), 03-3394, United States v. Va Lerie

Docket Nº:03-3394.
Citation:424 F.3d 694
Party Name:UNITED STATES of America, Appellant, v. Keith A. VA LERIE, Appellee.
Case Date:October 03, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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424 F.3d 694 (8th Cir. 2005)

UNITED STATES of America, Appellant,

v.

Keith A. VA LERIE, Appellee.

No. 03-3394.

United States Court of Appeals, Eighth Circuit.

October 3, 2005

Submitted: April 12, 2005

Appeal from the United States District Court for the District of Nebraska.

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[Copyrighted Material Omitted]

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

James M. Davis, argued, Omaha, NE, for appellee.

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

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by the refueling 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 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

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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 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.

Va Lerie objected to the magistrate judge's...

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