United States v. Aquino

• Decision Date: 22 March 2012
• Docket Number: No. 11–1372.,11–1372.
• Parties: UNITED STATES of America, Appellant, v. Luis Alberto AQUINO, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

674 F.3d 918

UNITED STATES of America, Appellant,

v.Luis Alberto AQUINO, Appellee.

No. 11–1372.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 15, 2011.Filed: March 22, 2012.

Nancy A. Svoboda, AUSA, argued, Omaha, NE, for appellant.

Shannon Patrick O'Connor, First Assistant FPD, argued, Raymond E. Walden, Research and Writing Attorney, FPD's office, on the brief, Omaha, NE, for appellee.

Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.

BYE, Circuit Judge.

The district court ¹ granted Luis Aquino's motion to suppress evidence discovered on his person during an encounter with law enforcement officers at the Greyhound Bus Depot in Omaha, Nebraska. The district court found Aquino did not voluntarily consent to the search that resulted in the discovery of the evidence. The government appeals contending the evidence was lawfully obtained as a result of a consensual encounter. We affirm.

I

Four officers involved in the Commercial Interdiction Unit (CIU) of the Nebraska State Patrol met at the Omaha Bus Depot on February 8, 2010, to intercept people who may be transporting controlled substances or illegal items while riding the bus. A Greyhound bus arrived from Denver on its way to Chicago with Aquino as one of its passengers. When the bus parked next to the terminal for servicing, the CIU officers observed the passengers as they exited the bus to enter the terminal.

Two CIU officers, Scott and Rasgorshek, followed one of the bus passengers as he walked through the main terminal and back outside to the terminal's north portico. A third CIU officer, Lutter, followed the two officers to observe any activity around the two officers as they contacted the bus passenger. As the first two officers were speaking to the passenger on the north side of the terminal, Lutter noticed Aquino taking an interest in the encounter. Lutter saw Aquino talking on his cell phone, and thought Aquino was commenting on the first two officers' encounter with the passenger. Scott and Rasgorshek finished their encounter with the first passenger and reentered the terminal to speak with a second passenger. Lutter noticed Aquino also take an interest in the officers' encounter with a second bus passenger.

Lutter then left the bus terminal to assist the fourth CIU officer, Orduna, with a suspicious bag next to the bus. As the passengers were re-boarding the bus, the officers stood by the bus door asking each passenger if the bag was theirs. When Aquino passed by the officers, he stated the bag was not his. When a different passenger claimed ownership of the bag, Orduna and Rasgorshek began to talk with that passenger. Lutter entered the bus and immediately approached Aquino, who was seated about half-way to the back of the bus on the driver's side. Lutter, who is 6' 6? tall and weighs 240 pounds, stepped past Aquino and then turned back, showing Aquino his identification as a law enforcement officer. Scott accompanied Lutter, kneeling on a seat on the opposite side of the bus, approximately two rows in front of where Aquino was seated. Both Scott and Lutter focused only on Aquino, and did not approach any other bus passengers. Lutter told Aquino he was a law enforcement officer. He then explained that no one was in trouble and no one was under arrest, but wondered if Aquino would talk to him. Aquino asked if he had to get off the bus. Lutter told Aquino he did not have to exit the bus unless he wanted to do so. Aquino remained in his seat.

Lutter first asked Aquino about his travel itinerary. Aquino informed him he was traveling from Merced, California, to Des Moines, Iowa. Aquino also gave Lutter his bus ticket after being asked to do so. Lutter noted the ticket was for a one-way passage and had been paid for in cash. Lutter next asked Aquino for some identification. Aquino gave Lutter a California ID. Lutter returned the ticket and the ID to Aquino after looking at them. By this time, the original passengers coming from Denver had all re-entered the bus and the bus driver had begun boarding the new passengers from Omaha. Lutter's conversation with Aquino did not delay the bus's departure as the driver was still preparing for departure.

At this point in the encounter, Lutter informed Aquino he was watching for people at the bus station who may be transporting controlled substances or illegal items such as bombs or knives. Lutter specifically informed Aquino that he wanted to talk to him because he noticed his actions in the terminal while watching two of the officers speak to other passengers, and because Aquino appeared to be nervous while observing the officer/passenger encounters. Lutter then asked Aquino if he had any bags. Aquino said he did. Lutter asked Aquino to exit the bus and show him his bag. Aquino walked off the bus followed by Lutter. Scott also exited the bus with Lutter and Aquino.

After exiting the bus, the men first went to the passenger side of the bus to look in the undercarriage area, which was filled with freight but no bags. The group then walked to the driver's side of the bus where Aquino located his bag in the undercarriage luggage area. Lutter asked Aquino if he could search both the bag and Aquino's person. Aquino agreed to let the officer search his bag. Lutter then asked if he could conduct a pat-down search of Aquino's person. Aquino said he did not want the officer to touch him. Lutter then asked Aquino if he would unzip his coat and hold his clothing next to his body so that Lutter could tell if there was anything secured under his clothing. Aquino opened his jacket and pulled his clothing tight to his body. Lutter observed nothing unusual. Lutter then asked Aquino to do the same thing with his dark-colored, baggy jeans. Aquino complied by pulling the thigh area tight on both pant legs, but not the lower portion of the leg area. Lutter said Aquino appeared to be very nervous and fidgety at this point, and was unable to maintain eye contact with him.

Lutter next asked Aquino to pull the lower portion of his pant legs tight around his ankles and calf area. Aquino made half-attempts to do so by using only one hand on each leg. At this point, Lutter noticed an unnatural bulge on the inside of Aquino's right calf. Lutter then asked Aquino to lift his pants up above the bulge. Aquino refused. Lutter then placed Aquino in handcuffs, testifying he did so as a precautionary safety measure. Without first conducting a pat down, Lutter immediately lifted Aquino's pant leg above the bulge and saw a duct-taped bundle strapped on Aquino's right leg. Based upon his training and experience,² Lutter believed the now-revealed bundle contained a controlled substance. Aquino was then escorted into the rear office area of the bus terminal and advised of his Miranda rights. Aquino declined to waive his rights and asked for an attorney. At this point, the package was removed from Aquino's right leg and his body was further searched. Two other packages were found taped to Aquino, one on his left leg and one in his crotch area. All of the packages contained methamphetamine. The officers had Aquino transported to the Douglas County Corrections Center where he was booked for possession with intent to deliver methamphetamine. Lutter testified his conversation with Aquino lasted for ten to fifteen minutes. Scott testified the entire episode lasted for twenty to twenty-five minutes.

On June 23, 2010, a federal grand jury returned a one-count indictment against Aquino charging him with possession with intent to distribute at least 50 grams but less than 500 grams of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1). After pleading not guilty, Aquino filed a motion to suppress the evidence found during his encounter with Investigator Lutter. The matter was assigned to a magistrate judge for a report and recommendation. Following a hearing, the magistrate judge recommended the motion be granted.

The magistrate judge determined the encounter was not a purely consensual encounter because no reasonable person in Aquino's position would have felt free to end the encounter. The magistrate judge found the encounter was an investigative detention that was not supported by reasonable suspicion. After the government objected to the magistrate judge's recommendation, the district court reviewed the matter. The government did not challenge the magistrate judge's determination regarding the lack of reasonable suspicion, but argued the encounter was entirely consensual up until the point when Lutter placed handcuffs on Aquino, citing United States v. Favela, 247 F.3d 838 (8th Cir.2001). The district court distinguished Favela, however, and determined this case was similar to United States v. Eustaquio, 198 F.3d 1068 (8th Cir.1999), and United States v. Green, 52 F.3d 194 (8th Cir.1995), which concluded initial consensual encounters became investigatory stops that required reasonable suspicion. The district court found it would have been reasonable for Aquino to assume Lutter's statements were commands, not requests, which together with the fact that Lutter never told Aquino he was free to leave and did not have to answer Lutter's questions, indicated the encounter was not free of coercion. The district court focused in part upon the pointed questions the officer asked Aquino, and the fact the officer targeted Aquino for questioning because of his behavior inside the terminal. Ultimately, the district court agreed the encounter was an investigative detention that required reasonable suspicion, and overruled the government's objection to the magistrate judge's recommendation.

The government filed a timely appeal. On appeal, the government does not challenge the district court's determination regarding the lack of reasonable suspicion, but renews its contention the encounter between Lutter and Aquino was consensual up until the moment the officer handcuffed the...