U.S. v. Torres, 92-5246

• Decision Date: 04 October 1995
• Docket Number: No. 92-5246,92-5246
• Citation: 65 F.3d 1241
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Madelyn TORRES, Defendant-Appellant.

Page 1241

65 F.3d 1241

UNITED STATES of America, Plaintiff-Appellee, v. Madelyn TORRES, Defendant-Appellant.

No. 92-5246.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1995.

Decided Oct. 4, 1995.

Rehearing In Banc Granted; Opinion Vacated Nov. 13, 1995.

ARGUED: John Randolph Riley, Raleigh, NC, for appellant. David Bernard Smith, Assistant United States Attorney, Greensboro, NC, for appellee. ON BRIEF: Robert H. Edmunds, Jr., United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, NC, for appellee.

Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge PHILLIPS wrote the majority opinion, in which Judge HALL joined. Judge WILLIAMS wrote a dissenting opinion.

OPINION

PHILLIPS, Senior Circuit Judge:

Madelyn Torres was convicted by a jury of possession with intent to distribute cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1). On this appeal, she challenges only the district court's denial of her pre-trial motion to suppress evidence that she contends was obtained by an unconstitutional search. Because we conclude that the challenged evidence should have been suppressed, we vacate the conviction and remand for a new trial.

I

The relevant facts respecting the suppression issue, either undisputed or taken in the light most favorable to the government, are as follows.

On February 12, 1991, Alamance County Sheriff's Department Investigators J. Dean Ward and Ron Florence were conducting a routine drug interdiction investigation at the Burlington, North Carolina, train station. At approximately 6:55 p.m., Torres was the sole passenger to disembark from a train that had arrived from Raleigh. She carried a purse and a duffel bag. The officers approached her, identified themselves and their mission, and told her they would like to ask a few questions. She said, "I'll help you if I can."

According to Officer Ward, the officers told Torres repeatedly throughout the ensuing encounter that she was free to leave. They asked her for identification, and she produced a valid U.S. passport bearing her true name. They asked to see her tickets, and she produced two tickets, one dated February 4, 1991, bearing the name "Pattie Torres" and one dated February 12, 1991, bearing the name "M. Torres." She explained the discrepancy, saying "evidently the people made a mistake at Amtrak." Torres said she had travelled from New York to Burlington to spend a few days and to meet a friend named "Bookie," but she did not know Bookie's last name or address. When Ward dialed the telephone number she gave as Bookie's, he reached a hotel in Raleigh. Torres consented to a search of her person and her purse. Ward searched her purse and found nothing incriminating. The search of her person was delayed until a female officer later arrived. It likewise produced nothing incriminating.

Despite having consented to a search of her purse and her person, Torres refused to consent to a search of her duffel bag, telling Ward that he would have to obtain a search warrant. Because Ward was relatively inexperienced at train station drug interdiction, ¹ he telephoned a more experienced agent of the U.S. Drug Enforcement Agency (DEA) for advice on how to proceed. After hearing about Torres's arrival from New York, the tickets with different names, and the fact that Torres had consented to search of her purse but not of her duffel bag, the DEA agent advised Ward to seize the bag and give Torres a receipt for it in order to allow it to be subjected to a "sniff test" by a dog trained to detect narcotics.

Ward did take custody of the bag and gave Torres a receipt. He also obtained from Torres a New York telephone number where she said he could reach her to return the bag. He suggested that she accompany him to the sheriff's department, explaining that if the dog gave a positive response he would obtain a warrant and search the contents of the bag, but that if the dog gave a negative response she could take the bag and leave. Torres asked if she would be arrested if she did not go to the station. After Ward told her that she would not, she decided to go. Ward gave Torres a choice between riding to the station with him or with a female officer, and she chose the latter. Ward then sent for a female officer who arrived at approximately 7:50 p.m. The female officer performed a consensual pat-down search of Torres's body, and then drove her to the sheriff's department, allowing her to sit in the front seat of the sheriff's car rather than be restrained in the caged-in back seat.

At the sheriff's department, Torres was again advised that she was free to leave, and she was allowed to make several phone calls. At about 8:05, Ward called the Burlington Police Department to request their drug dog and handler and was told that the dog would not arrive until about 9:30 p.m. Torres was told of the reason for the delay and that she was still free to leave, but still she stayed. Ward notified the sheriff of the impending delay, and the sheriff produced a dog certified in narcotics detection by about 8:15 or 8:20. ² The sheriff's dog immediately alerted to Torres's bag. At approximately 9:00, in Torres's presence, Ward told another officer of the sheriff's dog's positive response. Torres then consented to the search of her bag. Nevertheless, the officers waited for the police dog to arrive and sniff the bag. When that dog alerted to Torres's bag, Ward advised her that she was no longer free to leave. He used the dogs' positive responses as the basis to obtain a search warrant, which was issued at 10:35. A search of the bag then revealed more than 600 grams of cocaine base hidden among clothing.

Torres was charged with violating 21 U.S.C. Sec. 841(a)(1). She moved pre-trial to suppress the evidence of the cocaine base found in the duffel bag, arguing that the encounter that preceded the search of the bag was an investigative detention which had not been justified by a reasonable, articulable suspicion that the bag would contain illegal substances and thus was unconstitutional under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny; that the detention and subsequent search thus violated the fourth amendment; and that, therefore, all evidence obtained as a result must be excluded or suppressed. After an evidentiary hearing, the district court denied the motion in open court, stating simply that

I don't believe there is ample information or evidence in the record to warrant suppressing the--to allow your Motion to Suppress. I just don't see how that could possibly be done on the facts in this case. And then you have the further question of whether or not, if the stop was improper and the bag was taken as described, was that unreasonable; and the Court does not believe this was a violation of the Fourth Amendment.

J.A. 72.

Torres was ultimately convicted of possession with intent to distribute cocaine base at a jury trial in which the discovery of cocaine base in her duffel bag was of course critical evidence. This appeal followed, with Torres challenging the denial of her suppression motion.

II

Torres does not challenge the constitutionality of the officers' initial confrontation in which they sought her consent to answer a few questions. She further concedes that the ensuing search of her purse and of her person were consensual. She therefore concedes that the encounter was consensual up to the point that she refused to consent to a search of her duffel bag. She contends, however, that her refusal at that point should have ended the encounter and that the agents were unjustified in thereafter detaining her and seizing her luggage. The government, in contrast, contends that the agents had a reasonable suspicion, supported by articulable facts, that she was engaged in criminal activity, and that this suspicion was sufficient to justify the ensuing investigative detention of her bag under Terry. Torres also argues that, even if the initial seizure of her bag was justified, the length of the detention rendered the seizure unconstitutional, while the government contends that the seizure was not invalidated by its length because it lasted no longer than was justified by the circumstances. Because we agree that the investigative detention of the bag was not supported by a reasonable suspicion, we conclude that it was unjustified no matter how brief. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (An individual "may not be detained even momentarily without reasonable, objective grounds for doing so.") (emphasis added). We need not, therefore, reach Torres's alternative objection to the temporal length of the bag's detention.

A "consensual encounter can develop into an investigatory detention as a consequence of police behavior." United States v. Withers, 972 F.2d 837, 842 (7th Cir.1992) (consensual encounter ripened into an investigative stop when officer informed traveller that officer was detaining his luggage for a canine sniff); see also INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); United States v. McFarley, 991 F.2d 1188, 1192 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 393, 126 L.Ed.2d 342 (1993). Here, when Torres refused to consent to the search of her duffel bag, the officers informed her that they were seizing her bag to subject it to inspection by a dog trained to detect narcotics. Detention of a traveller's luggage, as here for a canine sniff, implicates his fourth amendment rights "to the same extent as if the detention were of [his] person," McFarley, 991 F.2d at 1192, and is subject to the same limitations applicable to an investigative detention of his person on less than probable cause. United States v. Place, 462 U.S. 696, 708-09, 103 S.Ct. 2637, 2645-46, 77 L.Ed.2d 110 (1983). The encounter between Torres and the...