U.S. v. Escobar

Decision Date18 November 2004
Docket NumberNo. 03-4046.,03-4046.
Citation389 F.3d 781
PartiesUNITED STATES of America, Plaintiff/Appellant, v. Jose Martinez ESCOBAR; Vicky Lynn Loos, also known as Vicky L. Reppuhn, Defendants/Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Counsel who presented argument on behalf of the appellee was Jeffrey L. Thomas, AFPD, Omaha, NE. Also appearing on appellee's brief was Jennifer L. Gilg, Research and Writing Attorney, Office of Federal Public Defender, Omaha, NE 68102.

Before BYE, LAY, and RILEY, Circuit Judges.

BYE, Circuit Judge.

The United States appeals the district court's1 order granting Vicky Lynn Loos's and Jose Martinez Escobar's motions to suppress evidence discovered in a warrantless search of their luggage. We affirm.

I

On February 24, 2003, Loos and Escobar were traveling from Los Angeles, California, to a final destination of Saginaw, Michigan, aboard a passenger bus. At midday, the bus arrived at the bus terminal in Omaha, Nebraska, to refuel. During refueling, the passengers were allowed to disembark and remain at ease in the terminal.

During this Omaha refueling stop, members of the Omaha Metropolitan Commercial Interdiction Unit were stationed at the terminal so as to target drug-trafficking operations. During the refueling, two members of the unit, James Krans and Alan Eberle, visually inspected luggage stored in the bus's cargo hold. Krans noticed two new green bags, similar in design, which were secured with "larger than normal padlocks." The bags aroused the investigators' suspicions and upon further scrutiny they determined the bags belonged to Loos and Escobar.

Krans and Eberle did not attempt to establish probable cause by subjecting the bags to a drug-dog sniff. Instead, they continued their investigation by attempting to determine if Loos and Escobar had purchased their tickets on the day of travel using cash. The bus company's computer system, however, was not working so they asked a bus company employee to page the pair. Moments after the page, Loos approached the employee counter and Krans identified himself as a police officer. Krans told Loos she was not under arrest and had done nothing wrong but he needed to talk to her. Loos agreed to talk but became noticeably nervous. When Krans asked for identification, Loos returned to the table where she had been sitting with Escobar and retrieved her driver's license from her purse. Krans and Eberle followed her to the table and continued the conversation. Among other things, Krans lied by telling Loos a drug-detection dog had in fact alerted on Loos's and Escobar's luggage and he asked her if she had the keys to the padlocks. Loos did not respond but began rummaging through her purse in an apparent attempt to locate the keys. Eberle took no active role in the conversation with Loos, but instead introduced himself to Escobar and asked to see his ticket. From the ticket, Eberle was able to determine it had been purchased utilizing cash on the day travel commenced.

Eberle and Krans continued questioning Escobar and Loos until Krans asked Loos to accompany him to the baggage area to identify her bag. Krans then turned and walked away, leaving Loos little choice but to follow him. Eberle, in turn, asked Escobar to accompany him to the baggage area. Like Loos, Escobar said nothing but complied with Eberle's request.

The baggage area is a large room in a non-public part of the terminal. Once inside, Krans asked Loos if he could search her purse for the keys. Loos laid her purse on the table and told Krans to: "Go ahead." As he searched the purse, another investigator appeared carrying the bags. Krans found the keys and asked if he could search her bag. Again, Loos responded with: "Go ahead." At no time was Loos advised she was free to object to the search. As Krans searched Loos's bag, Eberle asked Escobar for permission to search his bag. Escobar said: "Go ahead, you're going to do it anyway." Eberle informed Escobar he did not have to consent to the search, but as noted by the district court, the admonition "was ineffectual since Loos had already consented and both defendants were immediately put into custody before there was an attempt to search Escobar's bag." Appellant's Ad. p. 39.

The search uncovered in excess of five kilograms of cocaine. Escobar and Loos were arrested and charged with conspiracy to possess and distribute five kilograms or more of cocaine, 21 U.S.C. § 846, and possession with intent to distribute five kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1). Loos and Escobar filed motions to suppress the drug evidence arguing the officers did not have a reasonable articulable suspicion to justify removing the bags from the bus or to detain the bags for further inspection. The government argued the officers had a reasonable articulable suspicion the bags contained illegal drugs, and even assuming they did not, Loos and Escobar consented to the removal of the bags from the bus. The government further argued Loos and Escobar consented to the search of their luggage thereby vitiating any problems with the detention.

The magistrate judge's Report and Recommendation recommended denying the suppression motions. The district court, however, rejected the recommendation and granted the motions finding the officers lacked a reasonable articulable suspicion to justify detaining the bags, and the consent given by Loos and Escobar to detain the bags was not freely and voluntarily given. Finally, the district court determined Krans lied about having probable cause to search the bags, and Loos's and Escobar's consent to search was too close in time to the misconduct to purge the taint of the illegal detention. In other words, consent was not freely and voluntarily given.

II

The district court's analysis addressed three distinct issues arising out of the search of Loos's and Escobar's luggage. First, the court analyzed whether removing the bags from the bus and carrying them to the baggage area was a seizure supported by a reasonable articulable suspicion. Second, the district court addressed whether Loos and Escobar consented to having the bags removed and brought to the baggage area. Finally, the district court considered whether Loos's and Escobar's consent to search the bags, which followed closely on the heels of the illegal detention, was valid. We find it unnecessary to explore the first two issues and focus our analysis on the third.2

We require a showing of reasonable articulable suspicion before law enforcement is permitted to detain or seize an item for purposes of investigation, i.e., to establish probable cause. United States v. Logan, 362 F.3d 530, 533 (8th Cir.2004). If officers do not have a reasonable articulable suspicion sufficient to justify detaining an item, any subsequent search of the item will be held unconstitutional even though probable cause was later established. Here, however, the government never established probable cause. Thus, even assuming the initial seizure was proper, the search was permissible only if Loos and Escobar freely and voluntarily consented. See United States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir.2004) (citing Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (holding searches conducted without a warrant based on probable cause are presumptively unreasonable).

"Under the fourth and fourteenth amendments, searches conducted without a warrant issued upon probable cause are presumptively unreasonable, subject to a few specifically established exceptions." Id. Consent to search is one such exception, and "[a] warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search." United States v. Brown, 763 F.2d 984, 987 (8th Cir.1985). Whether consent is voluntarily given is a question of fact, Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and on appeal, we review the district court's fact findings for clear error. United States v. Lee, 356 F.3d 831, 834 (8th Cir.2003).

The test applied to determine if consent is free and voluntary is whether, in light of the totality of the circumstances, consent was given without coercion, express or implied. Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041; Laing v. United States, 891 F.2d 683, 686 (8th Cir.1989). The government bears the burden of showing consent was freely and voluntary given and not a result of duress or coercion, Laing, 891 F.2d at 686, and the burden cannot be discharged by showing mere acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). "Rather, the government must show that a reasonable person would have believed that the subject of a search gave consent that was the product of an essentially free and unconstrained choice, and that the subject comprehended the choice that he or she was making." Cedano-Medina, 366 F.3d at 684 (internal citations and quotations omitted).

Factors we consider when determining if consent was freely and voluntarily given, as set forth in United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.1990), include 1) age, 2) general intelligence and education, 3) whether the individual was under the influence of drugs or alcohol, 4) whether she was informed of the Miranda3 rights, and 5) whether she had experienced prior arrests and was thus aware of the protections the legal system affords suspected criminals.

Additionally, the environment in which the alleged consent was secured is also relevant. Accordingly, we consider 1) the length of time one was detained, 2) whether the police threatened, physically intimidated, or punished the suspect, 3) whether the police made promises or misrepresentations, 4) whether the suspect was in custody...

To continue reading

Request your trial
44 cases
  • State v. Haar
    • United States
    • South Dakota Supreme Court
    • August 26, 2009
    ...any subsequent search of the item will be held unconstitutional even though probable cause was later established. United States v. Escobar, 389 F.3d 781, 784 (8th Cir.2004) (internal citation omitted).6 [¶ 23.] In making the reasonable suspicion determination, reviewing courts "must look at......
  • United States v. Ramos, CR 15-3940 JB
    • United States
    • U.S. District Court — District of New Mexico
    • July 11, 2016
    ...(6th Cir.2008) (concluding that, an officer's use of deceit or trickery can taint an otherwise voluntary consent); United States v. Escobar, 389 F.3d 781, 786 (8th Cir.2004) (stating that police may not "convey a message that compliance with their requests is required"). Accordingly, while ......
  • U.S. v. Granados
    • United States
    • U.S. District Court — District of South Dakota
    • November 4, 2008
    ...whether, in light of the totality of the circumstances, consent was given without coercion, express or implied." United States v. Escobar, 389 F.3d 781, 784-85 (8th Cir.2004) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The government must pro......
  • U.S. v. Correa
    • United States
    • U.S. District Court — District of Nebraska
    • October 27, 2010
    ...without a warrant “are presumptively unreasonable, subject to a few specifically established exceptions.” See United States v. Escobar, 389 F.3d 781 (8th Cir.2004). Consent to search is one such exception, and a warrantless search is valid if conducted pursuant to the knowing and voluntary ......
  • Request a trial to view additional results
4 books & journal articles
  • Searches of the home
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2020 Contents
    • July 31, 2020
    ..., 38 F.3d 488 (9th Cir. 1994). Agents make misleading statements that a warrant was not required to enter. • United States v. Escobar , 389 F.3d 781 (8th Cir. 2004). Police falsely claimed drug dog alerted. • State v. Trecoci 630 N.W.2d 555 (Wisc. App. 2001). Police threatened to obtain a s......
  • Searches of the Home
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2016 Contents
    • August 4, 2016
    ..., 38 F.3d 488 (9th Cir. 1994). Agents make misleading statements that a warrant was not required to enter. • United States v. Escobar , 389 F.3d 781 (8th Cir. 2004). Police falsely claimed drug dog alerted. • State v. Trecoci 630 N.W.2d 555 (Wisc. App. 2001). Police threatened to obtain a s......
  • Searches of the Home
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2017 Contents
    • August 4, 2017
    ..., 38 F.3d 488 (9th Cir. 1994). Agents make misleading statements that a warrant was not required to enter. • United States v. Escobar , 389 F.3d 781 (8th Cir. 2004). Police falsely claimed drug dog alerted. 4-19 SEARCHES OF THE HOME §4:60 • State v. Trecoci 630 N.W.2d 555 (Wisc. App. 2001).......
  • Searches of the home
    • United States
    • James Publishing Practical Law Books Suppressing Criminal Evidence Fourth amendment searches and seizures
    • April 1, 2022
    ...statements that a warrant was not required to enter. SEARCHES OF THE HOME 4-27 Searches of the Home §4:59 • United States v. Escobar , 389 F.3d 781 (8th Cir. 2004). Police falsely claimed drug dog alerted. • State v. Trecoci 630 N.W.2d 555 (Wisc. App. 2001). Police threatened to obtain a se......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT