U.S. v. Little, 94-2227

• Decision Date: 24 July 1995
• Docket Number: No. 94-2227,94-2227
• Citation: 60 F.3d 708
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Bonnie Kaye LITTLE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 708

60 F.3d 708

UNITED STATES of America, Plaintiff-Appellant, v. Bonnie Kaye LITTLE, Defendant-Appellee.

No. 94-2227.

United States Court of Appeals Tenth Circuit.

July 24, 1995.

Rehearing Denied Dec. 1, 1995.

David N. Williams, Asst. U.S. Atty. (John J. Kelly, U.S. Atty., with him on the brief), Albuquerque, NM, for plaintiff-appellant.

Kimberly Homan of Sheketoff & Homan, Boston, MA (David Z. Chesnoff of Goodman & Chesnoff, Las Vegas, NV, with her on the brief), for defendant-appellee.

Before ANDERSON and HOLLOWAY, Circuit Judges, and ELLISON, District Judge ^*.

HOLLOWAY, Circuit Judge.

The government appeals from the district court's order after remand granting Defendant-Appellee Bonnie Kaye Little's motion to suppress. Jurisdiction in this court is proper under 18 U.S.C. Sec. 3731.

I

This is the government's second appeal in this case and the sequel to United States v. Little, 18 F.3d 1499 (10th Cir.1994) (en banc) (Little I ). In Little I we reversed the district court's earlier grant of Little's motion to suppress and remanded to the district court for further proceedings. On remand, the district court made new findings pursuant to our mandate and again granted Little's motion to suppress. United States v. Little, 862 F.Supp. 334 (D.N.M.1994) (Little II ).

The facts are set forth fully in Little I, and we therefore discuss them only as necessary to this opinion.

II

In Little I, we remanded to the district court because we concluded that the district court had failed to apply the correct legal standard to determine whether the encounter between Agent Small and Ms. Little was consensual. We noted that the proper standard was enunciated in Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388-89, 115 L.Ed.2d 389 (1991):

in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.

The test is objective and fact specific, examining what the police conduct would have communicated to a reasonable person based on all the circumstances surrounding the encounter. Little I, 18 F.3d at 1503. ¹

On remand the district court concluded that under the totality of the circumstances test, Little was illegally seized when Small asked Little to accompany him to the baggage area to view a second bag; this followed a voluntary police-citizen type of encounter. Little II, 862 F.Supp. at 335-36. In analyzing the encounter between Agent Small and Ms. Little, the district judge said:

the initial meeting between Agent Small and Ms. Little was ... a police-citizen encounter which is characterized by the voluntary cooperation of a citizen in response to non-coercive questioning. Nothing occurred during this initial encounter that warranted further questioning. The encounter then developed into a Terry-type of encounter which is considered a seizure of the person within the meaning of the Fourth Amendment but need not be supported by probable cause. When Ms. Little refused to give Agent Small permission to search her bag, the intensity of the investigation heightened. The encounter quickly escalated to the third type of encounter which is justified only when there is probable cause to believe that a person has committed or is committing a crime.

862 F.Supp. at 335.

The judge concluded that at the point when Agent Small asked Little to accompany him to the baggage area, "Ms. Little could reasonably believe that she was not free to ignore Agent Small's requests and go about her business. At that point in time, Ms. Little's liberty was restrained." Id. at 336. In making this determination the judge stated that he had considered the following factors, inter alia: the confined space within which Little was questioned; the fact that the questioning was conducted outside public view; the accusatory, persistent, and intrusive nature of the questioning by Agent Small; and the failure of Agent Small to advise Little that she had the right to refuse to answer questions or to refuse to accompany him to the baggage area. Id. at 335. The court stated that it "drew on all the facts set forth in the record to reach its conclusion." Id. at 336 (emphasis added).

The judge next concluded that Little's responses to Agent Small's questions regarding the suitcase in the baggage area were tainted by her illegal seizure and thus could not be used to determine whether there was reasonable suspicion to hold the luggage and subject it to a dog sniff. Id. On the basis of these findings on remand, the trial judge then granted the motion to suppress.

III

"When reviewing an order granting a motion to suppress, 'we accept the trial court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court's finding.' " Little I, 18 F.3d at 1503, quoting United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993). "We are mindful that at a hearing on a motion to suppress, the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge." United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1993). However, we review de novo the ultimate determination of Fourth Amendment reasonableness. Little I, 18 F.3d at 1503. If the district court's factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible. Id.

The government argues that in Little I we "ruled that the factors the trial court had relied on to conclude Ms. Little had been seized were of no or only marginal relevance in the calculus of coercion." Appellant's Opening Brief at 7. The government asserts that on remand the trial court "again relied upon the same discredited factors that it had relied upon the first time it considered the issue." Id. at 7-8. We reject this assertion, as we conclude that on remand the district judge carefully considered our holdings in Little I and neither improperly relied on irrelevant factors nor gave determinative weight to any one factor. ² In Little I we said that certain factors relied upon by the district court were irrelevant and that the district court appeared to give determinative weight to others, contrary to the totality of the circumstances standard. See note 1, supra. However, on remand the factors relied on by the district judge were all factors which he could properly consider in determining whether the encounter was consensual.

First, the judge found that the questioning occurred in a confined space and outside of public view. As noted, the location of the encounter is relevant, although it cannot be determinative. See Bostick, 501 U.S. at 437, 111 S.Ct. at 2387 ("Where the encounter takes place is one factor, but it is not the only one.").

Second, the district judge relied upon the "accusatory, persistent, and intrusive" nature of the questioning by Agent Small. 862 F.Supp. at 335. The government argues that Little I precluded the district court from relying on this fact. In Little I we held that "[t]he asking of 'incriminating questions' is irrelevant to the totality of the circumstances surrounding the encounter." 18 F.3d at 1506 (emphasis added). However, we did not hold that the manner of asking incriminating questions was irrelevant. Nor would it be proper to do so. "Accusatory, persistent, and intrusive" questioning can turn an otherwise voluntary encounter into a coercive one. See Bostick, 501 U.S. at 437, 111 S.Ct. at 2387 ("no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage--so long as the officers do not convey a message that compliance with their requests is required." (Emphasis added.)). Therefore, it was not error for the district judge to find that there was an "accusatory, persistent and intrusive nature of the questioning," Little II, 862 F.Supp. at 335, and to consider this factor in his analysis of the totality of the circumstances.

Finally, the district judge relied upon Agent Small's failure to advise Little that she had the right to refuse to answer questions or to refuse to accompany him to the baggage area. In Little I, we stated that there was no per se rule requiring such advisement. 18 F.3d at 1505. We also said that Agent Small's advisement that Little did not have to consent to the search of her bag was relevant. See Bostick, 501 U.S. at 432, 111 S.Ct. at 2385 (a "fact[ ] ... particularly worth noting [is that] ... the police specifically advised Bostick that he had the right to refuse consent."). The giving of such advisements is relevant to the inquiry, and it logically follows that the omission of such advisements is also relevant, while not dispositive, in making the finding "whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' request or otherwise terminate the encounter." Bostick, 501 U.S. at 439, 111 S.Ct. at 2389.

In sum, all the factors considered by the district judge and set forth in his opinion on remand, 862 F.Supp. at 335, were relevant to the analysis of the totality of the circumstances. The district judge made no error in considering these factors on remand. ³

IV

We must next determine whether the district judge's findings of fact on remand were clearly erroneous. In reviewing factual findings we are mindful that

[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence...