U.S. v. O'Neal, 93-2399

• Decision Date: 29 March 1994
• Docket Number: No. 93-2399,93-2399
• Citation: 17 F.3d 239
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Derek O'NEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 239

17 F.3d 239

UNITED STATES of America, Plaintiff-Appellee, v. John Derek O'NEAL, Defendant-Appellant.

No. 93-2399.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 15, 1993.

Decided Feb. 17, 1994.

Rehearing Denied March 29, 1994.

Before McMILLIAN, Circuit Judge, LAY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

LAY, Senior Circuit Judge.

John D. O'Neal was indicted on a charge of distributing controlled substances in violation of 21 U.S.C. Sec. 841(a)(1) (1988). O'Neal filed a motion to suppress 136 grams of crack cocaine seized from his luggage at the Minneapolis Greyhound Bus terminal, claiming that the stop and the seizure of his bag by police were unlawful. The district court held that the stop and seizure were reasonable under the Fourth Amendment. O'Neal then entered a conditional guilty plea and was sentenced to a mandatory minimum of ten years in prison to be followed by five years of supervised release. O'Neal now appeals the ruling on his suppression motion. We affirm.

I.

The relevant facts of the case may be briefly summarized. O'Neal and his brother arrived in Minneapolis on a Greyhound Bus from Chicago on the morning of October 31, 1992. Several Minneapolis police and Hennepin County Sheriff's officers were watching the bus depot for possible drug couriers. O'Neal and his brother were approached by the officers and questioned. During the course of the interrogation, one of the officers seized O'Neal's carry-on bag for purposes of a canine sniff test. As that officer left with the bag, another officer asked O'Neal whether the bag contained drugs, and O'Neal admitted that it did. After the dog alerted to the bag, O'Neal was arrested, read his Miranda rights, and taken to the police station. The police obtained a search warrant for the bag, and upon execution of the warrant, found the cocaine.

II.

A.

The government acknowledges that for the seizure of O'Neal's bag to be valid, the officer was required to have a reasonable, articulable suspicion that criminal activity was afoot. ¹ United States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); United States v. Weaver, 966 F.2d 391, 393-94 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992). Reasonable suspicion must be based on the particular facts known to the officer and the inferences rationally to be drawn from those facts, as viewed in the totality of the circumstances and in light of the officer's experience. Id. at 394; see also United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989).

A magistrate judge held a hearing on O'Neal's suppression motion and recommended to the district court a finding that there was reasonable, articulable suspicion to seize the bag. The magistrate judge made the following findings of fact, accepted by the district court: The defendant and his brother got off a bus from a "source city" for drugs (Chicago); O'Neal was a black male wearing a Chicago Bulls Starter jacket; O'Neal and his brother walked "briskly" to the outer door leading to the parking lot, rather than into the bus terminal; they were carrying "athletic-type" bags; O'Neal "stared" at one of the officers, who thought O'Neal looked apprehensive; O'Neal and his brother lit cigarettes; the officers approached O'Neal and One of the officers thereafter seized the bag and told O'Neal, "You are free to go. You are not under arrest, but the bag is going with me. I am going to get a search warrant for it." The officer took the bag inside the depot, and a canine sniff test indicated that the bag contained narcotics.

his brother and told them that they were not under arrest but that they wanted to ask them a few questions; O'Neal told the officers that he lived in Chicago ² and was going to visit his sister's home located at Eleventh and Lake (the sister later testified that she lives in a duplex at 2941 Eleventh Avenue South, near the intersection of Eleventh and Lake); O'Neal produced an Illinois Public Welfare card as identification; one of the officers thought the picture did not resemble the defendant (later, the officer agreed that it was the defendant); the officer asked if O'Neal and his brother had bus tickets, but when O'Neal's brother responded that they did and that he was carrying both of them, the officer did not ask to see them; during the interrogation, two of the officers noticed that O'Neal was "sweating profusely" and appeared nervous; the officers stated they were narcotics agents and asked to search O'Neal's bag; O'Neal responded that they would need a search warrant.

Based upon the collective weighing of the above facts, we hold that the evidence fails to demonstrate objectively reasonable, articulable suspicion justifying the seizure of the bag. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). ³ This circuit, like others, has engaged in many exhaustive discussions as to what conduct is sufficient to create reasonable, articulable suspicion justifying a seizure of baggage. See, e.g., United States v. McKines, 933 F.2d 1412 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991); United States v. White, 890 F.2d 1413 (8th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990); United States v. Walker, 7 F.3d 26 (2d Cir.1993); United States v. McCarthur, 6 F.3d 1270 (7th Cir.1993); United States v. Frost, 999 F.2d 737 (3d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 573, 126 L.Ed.2d 472 (1993); United States v. Wilson, 953 F.2d 116 (4th Cir.1991). Often these cases are so closely decided that even within this circuit, similar fact patterns have led to different results. Compare United States v. Weaver, 966 F.2d 391 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 829, 121 L.Ed.2d 699 (1992) with United States v. Millan, 912 F.2d 1014 (8th Cir.1990). The facts of this case, however, are free of such difficulties. In the present case, there is a compelling lack of any evidence that might be said to engender reasonable, articulable suspicion.

The mere fact that young people wear athletic jackets and carry athletic bags hardly presents a basis to believe that they are Police officers are, of course, always free to approach citizens and question them if they are willing to stay and listen. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). Without at least reasonable suspicion, though, officers may not even temporarily seize a person or his luggage. Place, 462 U.S. at 708-09, 103 S.Ct. at 2645-46; White, 890 F.2d at 1416. For the reasonable suspicion standard to have meaning, officers must be required to have more than a "hunch" that a suspect is carrying drugs. ⁵ See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Weaver, 966 F.2d at 394. The facts of this case do not even justify a hunch. As we have previously noted, "conduct typical of a broad category of innocent people provides a weak basis for suspicion." United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989). If the facts here were deemed sufficient to establish reasonable, articulable suspicion, then every traveller would potentially be subject to having luggage seized at the mere discretion of the police. See Reid, 448 U.S. at 441, 100 S.Ct. at 2754. We consequently hold that there was no reasonable suspicion and that the seizure of the defendant's bag was illegal.

                criminals. 4  Add to this that they come from Chicago or ride a bus or smoke or even appear to be nervous, and there is still nothing collectively to suggest that criminal activity is afoot.  Cf. White, 890 F.2d at 1418 (noting that "becoming nervous when one is confronted by officers of the law is not an uncommon reaction").  There is nothing in the evidence to suggest that O'Neal's conduct prior to the seizure was anything but unremarkable
                

B.

The above finding does not end our inquiry. ⁶ Based on our determination that The problem with O'Neal's argument, however, is that the magistrate did not rely on the canine sniff test alone. The affidavit submitted with the warrant application refers both to the canine sniff and to O'Neal's admission to one of the officers that drugs were present in the bag. ⁷ O'Neal does not challenge the admission on appeal, and we therefore must accept the lower court's determination that the admission was voluntarily given in a non-custodial encounter with the police. ⁸

the seizure of the bag was illegal and our rejection of the good-faith exception to the exclusionary rule in this instance, O'Neal urges that the denial of his suppression motion must be reversed. To the extent of the facts considered, we would agree. Had the magistrate relied on the canine sniff test alone to decide that probable cause existed to issue a warrant to search the bag, we would conclude that because the seizure of the bag for the test was illegal, the evidence seized pursuant to the resulting search would have to be excluded.

The admissibility of the drug evidence seized from O'Neal's bag depends upon the validity of the search warrant that led to its discovery. The search warrant's validity, in turn, depends not solely upon the seizure of the bag, but upon all the bases for the magistrate's finding of probable cause. See, e.g., United States v. Packer, 730 F.2d 1151 (8th Cir.1984) (holding that illegal entry and search did not invalidate a subsequent search warrant where information acquired was not necessary to finding of probable cause).

In determining whether probable cause exists, a magistrate must decide whether the information provided in the affidavit accompanying a warrant application presents "sufficient facts to justify a prudent person in the belief that there is a fair probability...