975 F.2d 1447 (10th Cir. 1992), 91-2225, United States v. Bloom

Docket Nº:91-2225.
Citation:975 F.2d 1447
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael BLOOM, Defendant-Appellant.
Case Date:September 21, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1447

975 F.2d 1447 (10th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael BLOOM, Defendant-Appellant.

No. 91-2225.

United States Court of Appeals, Tenth Circuit

September 21, 1992

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Joseph Saint-Veltri, Denver, Colo., for defendant-appellant.

David Williams, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., Thomas L. English, Asst. U.S. Atty. with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before BALDOCK, SETH and KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant Michael Paul Bloom entered a conditional guilty plea, Fed.R.Crim.P. 11(a)(2), to possession with intent to distribute less than fifty kilograms of marijuana. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D). Defendant appeals the district court's denial of his motion to suppress evidence allegedly seized in violation of the Fourth Amendment and the denial of his request for a downward departure from his guidelines sentence. See U.S.S.G. § 5K2.0. Our jurisdiction over the Fourth Amendment issue arises under 28 U.S.C. § 1291. Because our resolution of this issue will permit Defendant to withdraw his guilty plea, Fed.R.Crim.P. 11(a)(2), we do not address the sentencing issue.

I.

On the afternoon of March 6, 1991, Drug Enforcement Administration Special Agent Kevin Small and United States Border Patrol Agent Hector Ochoa conducted a routine check of a passenger train originating in Los Angeles, California, en route to Chicago, Illinois, during its scheduled stop in Albuquerque, New Mexico. 1 Agent Ochoa was in uniform and visibly armed while Agent Small was in plain clothes with his weapon concealed in a "fanny pack." Agent Ochoa overheard Defendant asking an attendant the purpose of Agent Ochoa's presence. Defendant appeared to Agent Ochoa to be "very nervous" and "somewhat

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excited." Agent Ochoa also saw two large suitcases in Defendant's private compartment. 2 Agent Ochoa conveyed this information to Agent Small. The agents walked by Defendant's compartment and looked through the window, observing the two suitcases. According to Agent Small, the suitcases were "Delci" type, a high quality brand with an airtight seal, commonly used by persons transporting narcotics. Defendant was not in the compartment. The agents left the train and stood on the platform.

Following the announcement for passengers to reboard the train, the agents returned to Defendant's compartment. Agent Small knocked on the door while Agent Ochoa stood in the unoccupied adjacent compartment out of sight. When Defendant answered the door, Agent Small identified himself with his DEA credentials and badge and asked to speak with him. Defendant agreed, and Agent Small, while standing in the hallway to the side of the door, questioned him. In response, Defendant stated that he lived in Arizona; he boarded the train in Flagstaff, Arizona; he was en route to New York City; and he was traveling alone. According to Agent Small, Arizona is an origination point for marijuana, and New York City is a major distribution point. At Agent Small's request, Defendant showed him his ticket and Arizona driver's license which confirmed the information provided by Defendant. The ticket also indicated that it was one-way and had been purchased for $679 in cash two days earlier. At some point during the questioning, Agent Ochoa stepped out of the adjacent room and questioned Defendant about his city of residence.

Agent Small told Defendant that the DEA "had a problem on board the train of people traveling alone like he was, out of Arizona, traveling back east, carrying drugs in their luggage." In response to a direct question by Agent Small, Defendant stated that he did not have drugs in his luggage. Agent Small asked Defendant if he would voluntarily consent to a search of his luggage to verify that he was not carrying drugs. Defendant declined to permit Agent Small to search his luggage stating that his mother's remains, which he was taking back to New York for burial, were inside. The entire encounter lasted seven to ten minutes, and the agents then left the train.

Agent Small subsequently questioned the train attendant. The attendant confirmed that Defendant had boarded the train in Flagstaff, and that Defendant had told him to be very careful with his luggage because his mother's remains were inside. Agent Small then went to the ticket office and requested Defendant's travel history which also corroborated Defendant's statement that he was traveling with his mother's remains.

The agents returned to Defendant's compartment, and Agent Small knocked on the open door while Agent Ochoa again stood in the adjacent room out of sight. Agent Small again showed Defendant his badge and asked to speak with him. Defendant walked to the door and agreed. Agent Small said that he just wanted to make sure that he understood that Defendant was traveling with his mother's remains back to New York City. Defendant indicated that was not what he said. Defendant stated that he was traveling back to New York City to take care of his mother's remains. Agent Small seized the two suitcases over Defendant's objection. Agent Small took the luggage to the depot and immediately subjected it to a canine sniff which alerted to the presence of contraband. Agent Small returned to Defendant's compartment and arrested Defendant. After obtaining a warrant, a search of the luggage uncovered marijuana.

II.

Defendant argued in the court below, and continues to argue on appeal, that Agent Small's seizure of his luggage violated

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the Fourth Amendment because Agent Small lacked a reasonable suspicion that the luggage contained contraband. The district court rejected Defendant's argument, holding that Defendant's change of story concerning his mother's remains combined with the circumstances of the cash ticket and Defendant traveling from Flagstaff to New York gave Agent Small a reasonable suspicion to seize the luggage. See United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983) (officer whose "observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics ... [may] detain the luggage briefly to investigate the circumstances that aroused his suspicion").

After Defendant filed his brief in this Court, we held that an encounter between two law enforcement officers and a person in a private train compartment constituted an investigative detention when the officers asked incriminating questions and failed to advise the person of his right to terminate the encounter. United States v. Ward, 961 F.2d 1526, 1531-34 (10th Cir.1992). Defendant has since supplemented his brief by citing Ward to support his contention that the district court erred in denying his suppression motion. If Defendant was seized in violation of the Fourth Amendment prior to giving the statements upon which the district court relied in finding reasonable suspicion to seize the luggage, the statements would be the tainted fruit of an unlawful seizure and therefore could not be considered in determining the reasonableness of Agent Small's subsequent seizure of the luggage. See id. at 1530 (reasonable suspicion resulting from defendant's untruthful answers proper only if questioning of defendant was voluntary, consensual encounter); United States v. Santillanes, 848 F.2d 1103, 1108 (10th Cir.1988) (statement made by defendant during illegal detention could not be considered in determining reasonable suspicion for further detention). See also Florida v. Royer, 460 U.S. 491, 507-08, 103 S.Ct. 1319, 1329-30, 75 L.Ed.2d 229 (1983) (plurality opinion) (defendant's consent to search luggage tainted by illegal detention and therefore ineffective to justify search). Accordingly, we initially address the Ward issue and find it to be dispositive of Defendant's appeal.

III.

In denying Defendant's suppression motion, the district court concluded that Defendant was not seized during either encounter prior to his arrest and that he voluntarily provided the information requested by Agent Small. While we review the district court's factual finding of whether Defendant was seized under the clearly erroneous standard, United States v. Werking, 915 F.2d 1404, 1409 (10th Cir.1990), "the ultimate issue of whether a seizure occurred is a question of law." United States v. Ward, 961 F.2d 1526, 1534 (10th Cir.1992) (citations omitted). Here, the facts are undisputed; accordingly, our review is de novo. See United States v. Jordan, 958 F.2d 1085, 1086 (D.C.Cir.1992); United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991). But see United States v. Silva, 957 F.2d 157, 158 (5th Cir.), petition for cert. filed, No. 92-5259 (U.S. July 21, 1992); United States v. Wilson, 895 F.2d 168, 171 (4th Cir.1990); United States v. Rose, 889 F.2d 1490, 1495 (6th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989).

The Supreme Court has delineated three types of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment, see, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1979-81, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80 L.Ed.2d 247 (1984); (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity, see, e.g., United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968); and (3) arrests, the most intrusive of Fourth Amendment seizures

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and reasonable only if supported by probable cause. See, e.g., Hayes v. Florida, 470 U.S. 811, 815-16, 105 S.Ct....

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