U.S. v. Correa

• Decision Date: 29 August 2011
• Docket Number: No. 10–3504.,10–3504.
• Citation: 641 F.3d 961
• Parties: UNITED STATES of America, Appellant,v.Miguel Angel CORREA, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

641 F.3d 961

UNITED STATES of America, Appellant,

v.Miguel Angel CORREA, Appellee.

No. 10–3504.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2011.Filed: June 13, 2011.Rehearing and Rehearing En Banc Denied Aug. 29, 2011.

Martin J. Conboy, IV, AUSA, argued, Omaha, NE, for appellant.Richard Haile McWilliams, AFPD, argued, Omaha, NE, for appellee.Before MURPHY and COLLOTON, Circuit Judges, and ERICKSON,¹District Judge.MURPHY, Circuit Judge.

Nebraska state troopers found methamphetamine in Miguel Correa's possession as he was traveling by bus through Omaha. Correa was arrested and indicted for possession with intent to distribute over five hundred grams of methamphetamine. The district court granted Correa's motion to suppress evidence of the methamphetamine and the statements he made after its discovery. The government challenges that order in this interlocutory appeal. We reverse and remand for further proceedings.

The following undisputed facts are from suppression hearing testimony. In April 2010 Correa was traveling by bus from Las Vegas to Des Moines. His bus stopped in Omaha, where all through passengers briefly got off at the terminal. Nebraska state troopers were checking bus passenger lists for people who had bought their tickets in cash within a day of departure from drug source cities, such as Las Vegas. They found three such people on Correa's bus; he was one of them.

After the through passengers reboarded, troopers Scott, Eberle, and Rasgorshek got on the bus. They wore plain clothes but carried concealed weapons. They followed their usual practice in checking out the passengers. Rasgorshek knelt in the driver's seat facing backwards into the bus. Eberle and Scott went to the back of the bus and began to work their way forward, asking to see each passenger's ticket.

Scott eventually reached Correa, who sat in the front third of the bus. Scott stood slightly behind Correa's seat, not blocking him from the aisle. When Correa showed his ticket, Scott realized that he was one of the passengers in which they were interested. Scott asked where Correa was going, where he had come from, and which items on the bus were his. Correa said he was going home to Des Moines but that he had been in Las Vegas for ten years. He clarified that he lived in Las Vegas but would visit family in Des Moines for up to a few weeks. Throughout their encounter Scott and Correa spoke in English in normal conversational tones. Scott found Correa's demeanor “evasive but not confused.”

Scott noticed that during their conversation Correa “periodically reach[ed] over and reposition[ed]” a jacket on the empty seat next to him. He observed that Correa became increasingly nervous over the course of the conversation. Asked about his luggage, Correa pointed overhead to a small gym bag which Scott considered too small for the trip he described. Scott told Correa that the troopers were “watching for people transporting illegal ... guns, knives, [and] drugs,” and asked permission to search him, his bag, and his jacket. Correa said yes, pointed to his bag, and stood, apparently expecting to be patted down. Scott told Correa “he could say seated,” and again asked Correa's permission specifically to search the jacket. Correa said “yes” and handed it to Scott. Scott noted that the jacket felt heavy and found inside it two duct taped wet wipe container packages. Each weighed about a pound. Scott testified that in his six years of conducting searches on buses, he had “never come across a duct taped wet wipe container that did not contain methamphetamine.”

Scott handcuffed Correa, removed him from the bus, and took him to a back office of the bus terminal. Scott did not consider this removal an arrest, but rather “custody ... in furtherance of [his] investigation.” Over 500 grams of methamphetamine were found inside the containers, “confirm[ing] [Scott's] suspicion.” Scott then issued a Miranda warning. Correa waived his Miranda rights and made incriminating statements, offering to reveal his contacts in Des Moines in exchange for leniency.

Correa was indicted for possession of methamphetamine with intent to distribute under 21 U.S.C. § 841. He moved to suppress his statements and the drugs, citing the Fourth Amendment. Correa argued that Scott's initial questioning on the bus was a detention unsupported by reasonable suspicion, that his consent to search was involuntary, and that his subsequent removal from the bus was an arrest unsupported by probable cause.

After a hearing, the magistrate judge issued a report and recommendation to deny Correa's motion to suppress the evidence. He concluded that the encounter between Scott and Correa on the bus was not a detention, that Correa had voluntarily consented to the search which yielded the duct taped containers, that Correa's consent to search extended to the search in the bus depot opening the containers, and in the alternative that opening the containers was justified as an investigative detention and search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The district court adopted only the magistrate judge's factual findings before granting Correa's motion to suppress. The district court concluded that Scott's conversation with Correa on the bus was an illegal detention and found that Correa had not voluntarily consented to a search on the bus. The government now brings an interlocutory appeal of the district court's rulings.

We review de novo the question of whether Correa was detained on the bus. United States v. Valle Cruz, 452 F.3d 698, 705 (8th Cir.2006). A detention occurs when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In situations in which a person would have “no desire to leave,” the question is instead whether “a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 435–36, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

Relying on United States v. Drayton, 536 U.S. 194, 204, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), the government argues that Scott's conversation with Correa on the bus was not a detention triggering Fourth Amendment protection. In Drayton, police boarded Drayton's bus during a scheduled stop. Id. at 197, 122 S.Ct. 2105. One officer knelt in the driver's seat, and the other two went to the back of the bus. One remained there while the other worked his way forward questioning passengers. The questioning officer stood slightly behind each passenger so that they could easily get out of their seats. Id. at 197–98, 122 S.Ct. 2105. After arresting Drayton's seatmate who was carrying drugs, the officer asked Drayton, “May I search you?” Drayton allowed a pat down, revealing drugs taped to his body. Id. at 199, 122 S.Ct. 2105.

The Supreme Court held that this procedure did not violate the Fourth Amendment. Drayton had not been detained since “[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, 122 S.Ct. 2105. The officer kneeling in the driver's seat did not “tip the scale” because he “did nothing to intimidate passengers ... [and] said nothing to suggest people could not exit and indeed he left the aisle clear.” Id. at 205, 122 S.Ct. 2105.

Correa urges us to consider Drayton in light of Brendlin v. California, 551 U.S. 249, 257–58, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), which made clear that vehicle passengers, not only drivers, can be seized during traffic stops. Although Brendlin is relevant to the seizure in this case, it does not diminish Drayton's precedential value and it in fact even cited Drayton. Id. at 255, 257, 127 S.Ct. 2400.

While the facts of this case are very similar to those in Drayton, the district court focused on what it found different. It noted the possibility that other passengers or Officer Eberle may have been occupying the aisle. Scott's “pointed” questions indicated to the district court that “[a] reasonable person would assume ... [he] is not free to leave.” The court also was concerned that Correa could have understood Scott's statement that Correa “[could] remain seated” as a “command.” “Most important[ ]” to the district court, Scott had already singled out Correa for investigation. The court acknowledged, however, that “subjective intent of the officers” is not relevant unless it “has been conveyed to the person confronted,” which was not the case here.

The officers in this case followed almost exactly the same procedure used in Drayton. In both “[t]here was no application of force, no intimidating movement, no overwhelming show of force, [and] no brandishing of weapons.” 536 U.S. at 204, 122 S.Ct. 2105. Scott did not threaten Correa, and there is no evidence that the aisle between Correa and the exit was blocked during their conversation. Scott's tone was “conversational” rather than authoritative. Informing Correa that he did not have to stand was not enough to convince a reasonable person that he was required to sit.

We have held there was no Fourth Amendment violation in certain other bus interventions. For example, there was no detention by uniformed officers who boarded a bus during a scheduled stop and announced “if you are not [a United States citizen] please have your immigration documents ready for inspection.” United States v. Angulo–Guerrero, 328 F.3d 449, 450 (8th Cir.2003) (internal punctuation omitted). Nor was there when an officer asked a bus passenger for identification after he had already declined another officer's request to search his luggage. United States v. Richards, 611 F.3d 966, 968 (8th Cir.2010). We noted that the second...