U.S. v. Hall, 91-2179

• Decision Date: 30 October 1992
• Docket Number: No. 91-2179,91-2179
• Citation: 978 F.2d 616
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Penny HALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 616

978 F.2d 616

UNITED STATES of America, Plaintiff-Appellee, v. Penny HALL, Defendant-Appellant.

No. 91-2179.

United States Court of Appeals Tenth Circuit.

Oct. 30, 1992.

Thomas E. Higgins, Tucson, Ariz., for defendant-appellant.

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

Before BALDOCK, SETH, KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant Penny Hall 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). On appeal, Defendant challenges the district court's denial of her motion to suppress the marijuana discovered in her luggage. We have jurisdiction under 28 U.S.C. § 1291.

I.

On January 21, 1991, Drug Enforcement Administration (DEA) Agent Kevin Small received an informant's tip that Defendant would be on Amtrak Train Number Four when it arrived in Albuquerque, and that she "might be transporting drugs." The informant provided Agent Small with a description of Defendant and her luggage, told Agent Small that Defendant was traveling in a sleeper car from Flagstaff, Arizona to Harrisburg, Pennsylvania, and provided a call back number which Defendant had left with Amtrak personnel. The informant had provided Agent Small with four previous tips, three of which resulted in the seizure of narcotics.

Before the train arrived in Albuquerque, Agent Small contacted Amtrak and verified that Defendant had boarded the train in Flagstaff. He also telephoned the call back number and discovered that it was the number of a travel agency in Orange County, California. Agent Small then contacted Detective Jim Sheridan of the Albuquerque Police Department and asked Detective Sheridan to meet him at the train station with a narcotics detection dog. Detective Sheridan met Agent Small at the station, but was unable, after numerous attempts, to secure a dog.

At 1:46 p.m., the train arrived in the station, and an attendant identified Defendant for Agent Small and Detective Sheridan. The attendant also identified Defendant's suitcase which she had placed in the open luggage bin of her train car, allowing her free access to the suitcase throughout her trip. When Defendant entered the train station, Agent Small and Detective Sheridan confronted her. Detective Sheridan approached Defendant first, identified himself as a police officer, identified Agent Small who was standing ten feet away, and asked to see Defendant's train ticket. The ticket was for one-way travel, had been purchased with cash on the day of travel, and was in Defendant's name. Defendant also produced a Nevada driver's license.

During the course of the conversation, Detective Sheridan and Agent Small noted that Defendant appeared nervous and dropped either a cigarette or cigarette lighter. Detective Sheridan told Defendant that he regularly boarded trains looking for drug couriers, and asked Defendant if she was carrying any narcotics. Defendant stated that she was not. Detective Sheridan then asked for consent to search Defendant's luggage and Defendant refused.

Agent Small then approached Defendant and asked her about her travel plans. Defendant responded that she was from Reno, Nevada and was traveling to Harrisburg for three or four days to visit friends. Agent Small asked Defendant why she boarded the train in Flagstaff rather than Reno, and Defendant responded that she wanted to take the southern route. The conversation ended, and Defendant reboarded the train. Moments later, Agent Small reboarded the train, went to the train's luggage area and lifted Defendant's suitcase finding it "very heavy." Agent Small then approached Defendant in her train car and informed her that he was going to detain her suitcase in order to expose it to a trained dog. He explained that, if the dog alerted to the suitcase, he was going to get a search warrant and open it up; if not, the suitcase would be shipped back to her. Agent Small gave Defendant his business card and a receipt for the suitcase. He also asked for an address in Harrisburg or Reno where he could ship the suitcase to her if the dog failed to alert. After some hesitation and increased nervousness, Defendant located a Harrisburg Days Inn address in a motel guide, and asked that the suitcase be sent there. Defendant then identified her suitcase, which bore her name and address, and Agent Small took the suitcase and left the train.

Approximately two minutes after removing the suitcase from the train, Agent Small sniffed the suitcase at its seal and smelled marijuana. At Agent Small's invitation Detective Sheridan sniffed the suitcase and also smelled marijuana. At 4:55 p.m. Agent Small obtained a search warrant, opened the suitcase and discovered approximately forty pounds of marijuana. Defendant was subsequently arrested in Las Vegas, New Mexico.

In the court below, Defendant filed a motion to suppress the marijuana, alleging that the seizure of her suitcase violated the Fourth Amendment. After an evidentiary hearing, the district court denied the motion, holding that the officers had reasonable suspicion to seize the suitcase. On appeal, Defendant raises a number of issues challenging the legality of the seizure and subsequent search of her suitcase. Because we find that the government lacked reasonable suspicion to seize her suitcase we need not address Defendant's other claims.

II.

We review a district court's findings of fact that give rise to reasonable suspicion under a clearly erroneous standard; however, "the question of whether such suspicion was reasonable under the Fourth Amendment is a question a law which we review de novo." United States v. Bloom, 975 F.2d 1447, 1456 (10th Cir.1992) (citations omitted).

A seizure of property, for purposes of the Fourth Amendment, occurs "when there is some meaningful interference with an individual's possessory interest in that property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). Tangible property is seized when a police officer exercises control over the property by removing it from an individual's possession, United States v. Place, 462 U.S. 696, 707-708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983), or when an officer informs an individual that he is going to take his property. Id. at 707, 103 S.Ct. at 2644 (Fourth Amendment seizure occurred when agents told Defendant, following his refusal to consent to a search, that they were going to take his luggage to a federal judge to secure a warrant). On the other hand, no seizure occurs when an officer merely picks up an individual's property to look at it, because this interference with the individual's possessory interest is not meaningful. See Arizona v. Hicks, 480 U.S. 321, 324, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347 (1987); New York v. Class, 475 U.S. 106, 114, 106 S.Ct. 960, 966, 89 L.Ed.2d 81 (1986).

There is no dispute that the officers seized Defendant's suitcase for purposes of the Fourth Amendment, however the district court's determination of when the seizure occurred is unclear from the record. ¹ Defendant urges that her suitcase was seized when Agent Small first telephoned Detective Sheridan requesting that he secure a narcotics dog. We disagree. Agent Small placed the telephone call from Albuquerque before Defendant and her suitcase had even arrived in Albuquerque. The telephone call did nothing to deprive Defendant of her possessory interest in her suitcase, indeed she continued to enjoy the same access to the suitcase that she had prior to Agent Small's telephone call. Furthermore, Agent Small's lifting of Defendant's suitcase did not constitute a seizure because this interference with Defendant's possessory interests in her suitcase was minimal. See Hicks, 480 U.S. at 324, 107 S.Ct. at 1152 (officers moving stereo equipment in order to view serial numbers did not so interfere with the defendant's possessory interest in the stereo to constitute a Fourth Amendment seizure). The seizure in this case occurred when Agent Small informed Defendant that he was detaining her suitcase in order to expose it to a trained narcotics dog. As in Place, it was at this moment that Defendant lost free access to her suitcase and was meaningfully deprived of her possessory interest in the suitcase. See 462 U.S. at 707, 103 S.Ct. at 2644. Therefore, the officers are required to have had reasonable suspicion to seize Defendant's suitcase prior to informing her that it would be detained.

Law enforcement officers may seize and briefly detain a traveler's luggage provided that the officers have reasonable articulable suspicion that the luggage contains narcotics. Place, 462 U.S. at 706, 103 S.Ct. at 2644; United States v. Scales, 903 F.2d 765, 768 (10th Cir.1990). The concept of reasonable suspicion is not readily reduced to a neat set of legal rules, United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). Rather, the totality of the circumstances must be taken into account, and based upon those circumstances, the seizing officers must have a "minimal level of objective justification" which the officers can articulate; an "inchoate and unparticularized suspicion or 'hunch' " is insufficient. Bloom, 975 F.2d at 1456 (quoting Sokolow, 490 U.S. at 8, 109 S.Ct. at 1585).

In Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983), the Supreme Court held that officers had reasonable suspicion to detain the defendant's luggage when they knew that the defendant: (1) was young and casually dressed, (2) was traveling under an alias, (3) had paid cash for a one-way ticket, (4) was traveling from Miami, a drug source city, to New York, a destination city, and (5) had filled out luggage identification tags but omitted an address and phone number. The Court held that, taken together, these factors provided...