U.S. v. Guapi, 97-6289

• Decision Date: 29 June 1998
• Docket Number: No. 97-6289,97-6289
• Citation: 144 F.3d 1393
• Parties: 11 Fla. L. Weekly Fed. C 1722 UNITED STATES of America, Plaintiff-Appellee, v. Walter Mosquera GUAPI, a.k.a. Guapi Lebron, Jr., a.k.a. Alfonso Medina Saaverdra, a.k.a. Walter Mosquera, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1393

144 F.3d 1393

11 Fla. L. Weekly Fed. C 1722

UNITED STATES of America, Plaintiff-Appellee, v. Walter Mosquera GUAPI, a.k.a. Guapi Lebron, Jr., a.k.a Alfonso Medina Saaverdra, a.k.a. Walter Mosquera Defendant-Appellant.

No. 97-6289.

United States Court of Appeals Eleventh Circuit.

June 29, 1998.

Carol Elewski, Asst. Fed. Pub. Defender, Mobile, AL, for Defendant-Appellant.

J. Don Foster, U.S. Atty., George A. Martin, Jr. and Charles Kandt, Asst. U.S. Attys., Mobile, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before HATCHETT, Chief Judge, and RONEY and CLARK, Senior Circuit Judges.

RONEY, Senior Circuit Judge:

This appeal challenges the legality of a warrantless search of all carry-on luggage on a Greyhound bus. The search revealed cocaine in the defendant's luggage. The district court found the search to be constitutional because the defendant consented to the search. Although defendant did indeed consent in this case, under the circumstances in which the consent was obtained, it was not an uncoerced, voluntary consent as is required to validate such a warrantless search. Therefore, we reverse the conviction and hold that this search violated the Fourth Amendment's protection against unreasonable searches and seizures.

The police officers conducting this search did not inform the passengers that they were not required to consent to the search. Although we reject the notion of a per se rule requiring bus passengers to be informed of their constitutional rights, the facts and circumstances of this search required some indication to passengers that their cooperation was voluntary rather than mandatory. Because no such indication was provided, and because a reasonable person traveling in this bus would not have felt free to ignore the search request, we hold that this search was unconstitutional.

On September 14, 1996, a Greyhound bus en route from Houston to Miami made a scheduled stop in Mobile, Alabama. The driver of the bus, Herbert Braggs, informed all passengers that they would be required to temporarily exit the bus at the Mobile terminal. Before passengers could depart, however, two members of the Mobile Police Department's Drug Interdiction Unit, one in full uniform and one in plain clothes, boarded the bus. Officer Marvin Whitfield, the uniformed officer, stood at the front of the bus and made the following announcement:

I'm Officer Marvin Whitfield with the Mobile Police Department Drug interdiction Unit. With your cooperation, I'd like to check on-board cargo for illegal contraband such as alcohol, narcotics, weapons, or explosives. With your consent and cooperation, I'd like to ask you to bring down your on-board luggage if you have any overhead and have it open so I can do a quick on-board inspection.

Officer Whitfield did not inform the passengers that they could refuse to consent to the search, or that they could simply leave the bus with their luggage. While Braggs, the bus driver, went into the terminal to complete his paperwork, Officer Whitfield and his partner, a plain-clothes female officer, waited for the passengers to bring down and open their bags. Officer Whitfield then proceeded down the aisle of the bus, beginning from the front, while his partner waited in the area normally occupied by the bus driver. As he walked down the aisle, Officer Whitfield inspected each passenger's opened bag for contraband items. When he had finished searching the individuals seated in a particular row and moved on to the next row of seats, the passengers who had just been searched were free to exit the bus.

Along with all of the other passengers on the bus, Walter Mosqueri Guapi retrieved his carry-on luggage from the overhead storage bin and held it open for Officer Whitfield's inspection. Officer Whitfield did not speak with Guapi, but he looked under some clothing in Guapi's bag and saw a brick-like form which he believed might be narcotics. Officer Whitfield asked Guapi if the brick-like form was contraband and the defendant responded affirmatively. At this point, Officer Whitfield asked Guapi to exit the bus with him. Outside the bus, Officer Whitfield placed Guapi's carry-on bag among the checked luggage in a roped-off cargo area and instructed his trained narcotics dog to conduct a sniff test. The canine alerted on Guapi's bag, Guapi admitted that there was cocaine in the bag, and Officer Whitfield placed Guapi under arrest.

In Florida v. Bostick, the Supreme Court reversed a Florida Supreme Court decision which adopted a per se rule prohibiting police from randomly boarding buses and questioning passengers as a means of drug interdiction. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The Supreme Court had previously held that the Fourth Amendment permits officers to approach individuals at random in airport lobbies and other public places to ask questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. See Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). In Bostick, the Court simply held that rule applies equally to police encounters that take place on buses. It rejected the "free to leave" rubric that has been articulated for street encounters because a passenger may well not want to leave the bus because he or she wants to go when the bus goes, so that factors other than the police encounter would dilute the application of the "free to leave" determination. It held that the appropriate inquiry is whether under "all the circumstances surrounding the encounter ... 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." Bostick, 501 U.S. at 439, 111 S.Ct. at 2389. It held that the fact the encounter is in the cramped confines of a bus is but one factor to be taken into consideration, rather than the sole consideration given by the Florida court.

In Bostick, the Supreme Court found two facts "particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent.... Second, at no time did the officers threaten Bostick with a gun." Bostick, 501 U.S. at 432, 111 S.Ct. at 2385. In this case, although Officer Whitfield did not threaten Guapi with a gun, he also did not inform Guapi that he had a right to refuse consent. In both of our prior reported bus search cases, the police officers involved also specifically informed individual passengers that they had a right to refuse any search and that cooperation with law enforcement efforts was voluntary. United States v. Fields, 909 F.2d 470, 472 (11th Cir.1990); United States v. Hammock, 860 F.2d 390, 392 (11th Cir.1988).

The Supreme Court has steadfastly rejected the notion of imposing per se rules on police officers conducting warrantless searches. See Ohio v. Robinette, 519 U.S. 33, ----, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996); Bostick, 501 U.S. at 435-37, 111 S.Ct. at 2386-88 (1991). The Court has specifically rejected the notion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973). It is enough that the circumstances themselves would indicate that the search can proceed only if consent is given. Looking at the circumstances of this case, we feel that a reasonable person in the defendant's position would not have felt free to disregard Officer Whitfield's requests without some positive...