U.S. v. Little

• Decision Date: 22 March 1994
• Docket Number: No. 92-2155,92-2155
• Citation: 18 F.3d 1499
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Bonnie Kaye LITTLE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1499

18 F.3d 1499

62 USLW 2671

UNITED STATES of America, Plaintiff-Appellant, v. Bonnie Kaye LITTLE, Defendant-Appellee.

No. 92-2155.

United States Court of Appeals, Tenth Circuit.

March 22, 1994.

David N. Williams, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., and Larry Gomez, U.S. Atty. (succeeding Don J. Svet), with him on the briefs), Albuquerque, NM, for appellant.

David Z. Chesnoff, Goodman & Chesnoff, Las Vegas, NV (Kimberly Homan, Sheketoff & Homan, Boston, MA, with him on the briefs), for appellee.

Before SEYMOUR, Chief Judge, McKAY, LOGAN, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, and KELLY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The government appeals from an order of the district court granting defendant/appellee Bonnie Kaye Little's motion to suppress evidence seized pursuant to a search of her luggage on board a train in Albuquerque, New Mexico. After oral argument to a panel, but prior to a decision, we ordered this case reheard in banc. Upon review of the briefs and arguments of the parties, we hold that the district court employed the wrong legal standard when it granted the motion to suppress, in that it held that our prior cases compelled the conclusion that a police-citizen encounter at a train roomette, without a specific advisement by the police officer that the defendant need not answer questions, constituted an unlawful seizure. Our prior cases dictate no such per se rule. We therefore REVERSE and REMAND this case for further proceedings utilizing the proper standard.

BACKGROUND

Certain basic facts are undisputed. On January 27, 1992, Drug Enforcement Administration ("DEA") Agent Kevin Small received a tip that two passengers on the Southwest Chief Amtrak train due to arrive in Albuquerque at 1:25 p.m. might be carrying drugs. Neither of those individuals was Ms. Little.

In the course of questioning and consensually searching the luggage of those individuals, Agent Small noticed a large blue suitcase in the public baggage area of the train. The suitcase appeared to be new, was unlabelled, and, when the agent knelt down next to it, he detected "a chemical odor coming from the bag." Appellant's App., Tr. of Mo.Hr'g at 23. Agent Small was then joined by Detective Ivan Smith of the Albuquerque Police Department, who was under assignment to the DEA Task Force, and who also apparently detected a chemical odor coming from the bag. Agent Small testified he could not identify the odor, nor could he associate it with a particular drug or drug-related activity (such as an odor-masking agent). He asked the car attendant who brought the suitcase on board the train, and was told that it was the occupant of roomette 7. He checked the train manifest and determined that the occupant of roomette 7 was Ms. Little.

Accompanied by Detective Smith, Agent Small turned on a tape recorder to record his conversation and approached roomette 7. Detective Smith stood back in the vestibule area out of sight of the roomette, while Agent Small went to the room. The door to the roomette was open and Ms. Little was sitting inside. Agent Small stood outside the room, "in the hallway," id. at 48, showed Ms. Little his DEA badge, told her he was with the Police Department, and asked if he could speak with her. She consented, and Agent Small proceeded to ask her a series of questions. ¹

He asked her where she was traveling, to which she responded she was traveling from California to St. Louis. Agent Small asked to see her ticket, which she handed to him, and which evidenced that she had bought a one-way ticket with cash the day before. After returning the ticket, he asked for a picture identification, and she handed the agent a Missouri driver's license belonging to Bonnie Little, with a St. Louis address on it. Agent Small promptly returned that to her as well. He then told Ms. Little that he was with the DEA, that he checked the train manifests for people traveling alone from California to the east on one-way tickets bought with cash because they sometimes carried drugs. He then asked her if she was The agent testified that he had noticed a blue nylon bag next to Ms. Little. He asked her if the nylon bag was the only bag she had and she told him it was. When Agent Small asked Ms. Little if she would "voluntarily consent" to search the bag, she apparently hesitated, to which the agent responded:

carrying any drugs in her luggage, to which she responded she was not.

You don't have to. It's completely voluntary on your part. You don't have to let me do it. I don't have a search warrant. You're not under arrest. It's up to you.

Government's Ex. 2, tape recording. Ms. Little said she would prefer that he not search the bag.

Agent Small then asked her again if the bag was her only luggage, and she said it was. ² The agent thereupon asked her if she would accompany him downstairs and look at something, which she agreed to do. They went to the public baggage area and Agent Small asked Ms. Little if the large blue suitcase was hers. She responded that it was. The agent asked if she would consent to having the bag searched, and Ms. Little asked if she had to consent to the search, to which Agent Small said, "No, you do not." When the agent asked her if she had packed the bag herself and if she knew what was in it, she responded that she did not know what was in the bag, that she had not packed it, but had been given the bag by a "friend" in Los Angeles and told to take it to someone else in St. Louis.

The agent then told Ms. Little that he was going to take the bag and subject it to a dog sniff because he thought it contained contraband. When a trained narcotics dog alerted to the suitcase, Agent Small arrested Ms. Little. The dog also alerted to the blue nylon bag Ms. Little had with her in the train compartment. ³ When the two bags were searched, pursuant to a search warrant, each was found to contain fifteen kilograms of cocaine.

Ms. Little was indicted for possession with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A). She entered a plea of not guilty and filed a motion to suppress the cocaine seized from her luggage, on the ground that the luggage had been seized without a warrant and that the affidavit in support of the search warrant did not state probable cause.

After conducting a hearing on the motion, the district court granted it, reasoning as follows:

[A] person such as the defendant in this case ha[s] a higher expectation of privacy when they engage a small room in trains.

. . . . .

And here as in the Ward case [United States v. Ward, 961 F.2d 1526 (10th Cir.1992) ] the Court finds that his questioning Ms. Little in this confined space away from the public was in effect a situation where she was not permitted to decline answering questions.

Moreover important in this case as pointed [out] in the Ward case is that at no time did Agent Small advise her that she could terminate the questioning.

And I note that throughout Agent Small was very pointed in his questioning of the defendant, and he was asking incriminating questions.

The Court in Ward states that in a Fourth Amendment inquiry it is relevant that an individual traveling in a private train roomette has a higher expectation of privacy than an individual traveling in a public passenger train.

And also as here that the officer's confrontation of the defendant in a place where she had a legitimate expectation of privacy supports the conclusion, and I so Appellant's App., Tr. of Mo.Hr'g at 63-64. The court went on to conclude that Agent Small lacked reasonable suspicion to conclude that Ms. Little's luggage contained narcotics, so as to justify a brief detention of the luggage to subject it to a dog sniff. The court held that the chemical odor was an insufficient basis for the detention, and "the information reflected and known to agent Small was not inconsistent with innocent travel on a train by anyone." Id. at 65. The government appeals the district court's order granting the motion to suppress, arguing that the encounter between Agent Small and Ms. Little was consensual and that Agent Small had reasonable suspicion to detain her luggage and subject it to a dog sniff.

conclude in this case, that the encounter occurred in a private, non-public setting as distinguished from an open public setting.

DISCUSSION

When reviewing an order granting a motion to suppress, "we accept the trial court's factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court's finding." United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) (citing United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir.1992) and United States v. Preciado, 966 F.2d 596, 597 (10th Cir.1992)). We review de novo the "ultimate determination of Fourth Amendment reasonableness." United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993). " 'If the district court's factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible.' " United States v. Zapata, 997 F.2d 751, 757 (10th Cir.1993) (quoting United States v. Nicholson, 983 F.2d 983, 987 (10th Cir.1993)).

We consider first whether the district court correctly held that the encounter between Agent Small and Ms. Little was a seizure implicating the Fourth Amendment, rather than a consensual encounter. The Supreme Court in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), enunciated the test for determining whether an encounter is consensual or not:

[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers'...