United States v. Lennie Earl Letsinger, (Two Cases)

K.K. HALL, Circuit Judge,

dissenting:

I must respectfully dissent. Lennie Let-singer’s luggage was seized by officers who lacked “specific and articulable facts warranting a reasonable belief that [it] contain[ed] narcotics.” United States v. Place, 462 U.S. 696, 703 , 103 S.Ct. 2637, 2642 , 77 L.Ed.2d 110 (1983). I would therefore vacate his conviction and remand with instructions to suppress the evidence found in that luggage.

I.

I have no broad quarrel with the majority’s recitation of facts, but I do have a few supplements:

(1) At the suppression hearing, Detective Hanson testified that suspects are nervous when he interviews them “more often than not,” and Letsinger’s demeanor was “typical.”

(2) When Letsinger asked why he had been singled out for investigation, Hanson replied cryptically that they had “reasons.”

(3) Hanson testified that the hallway in which the officers stood was only twenty to twenty-five inches wide.

(4) The officers did not know the amount of cash Letsinger had paid for his ticket.

(5) The officers did not know the call-back number recorded by Amtrak, who recorded it, or whether it was recorded correctly.

With these additional facts to inform my analysis, I turn to the legal issues. Review is de novo. Ornelas v. United States, — U.S. -, -, 116 S.Ct. 1657, 1662 , 134 L.Ed.2d 911 (1996).

II.

A person or his personal property may not be forcibly detained, for even a moment, without .a reasonable articulable suspicion. Florida v. Royer, 460 U.S. 491, 498 , 103 S.Ct. 1319, 1324 , 75 L.Ed.2d 229 (1983); Place, 462 U.S. at 706 , 103 S.Ct. at 2644 . However, so long as the person is free to break off an encounter with police and go about his business, there is no seizure, even though the encounter may last a good while. See, e.g., United States v. McFarley, 991 F.2d 1188 (4th Cir.), cert. denied, 510 U.S. 949 , 114 S.Ct. 393 , 126 L.Ed.2d 342 (1993) (twenty-minute conversation while suspect and police walked along the street was not a seizure). Detention of a traveler’s luggage is of course a seizure, and it implicates his Fourth Amendment rights to the same degree as a seizure of his person. Id. at 1192. Announcement of the officers’ intent to detain luggage is the seizure, id., because at that point the traveler’s unrestricted liberty to call off the encounter and go unimpeded about his business ends. Place, 462 U.S. at 708 , 103 S.Ct. at 2645 (seizure of luggage implicates not just traveler’s possessory interest in his belongings; it infringes on personal liberty by disrupting his itinerary). Though the majority dismisses its language as mere dictum, the Place Court was emphatic on this point:

There is no doubt that the agents made a “seizure” of Place’s luggage when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant.

Id. at 707 , 103 S.Ct. at 2645 (emphasis added). Even if this passage does not govern of its own force, we made it into circuit law in McFarley, 991 F.2d at 1192 . The McFarley holding does bind us as a panel of this court, and it ought to be applied here.

The majority would distinguish McFarley because here a fact of “constitutional import” occurred between the announcement of the seizure and its physical execution — namely, Letsinger’s statement that marijuana might *147 be in the bag. This argument assumes what it seeks to prove. If the voluntariness of the encounter was already broken — as Place and McFarley say it was — Letsinger’s actions in the face of the claim of lawful authority cannot retroactively validate that claim. Cf. Sibron v. New York, 392 U.S. 40, 63 , 88 S.Ct. 1889, 1902-03 , 20 L.Ed.2d 917 (1968) (search “incident to” arrest could not serve as part of the arrest’s justification); Bumper v. North Carolina, 391 U.S. 543, 549 , 88 S.Ct. 1788, 1792 , 20 L.Ed.2d 797 (1968) (“consent” to search that followed illegal claim of authority was not voluntary); United States v. Wilson, 953 F.2d 116, 126 (4th Cir.1991) (“Of course, the police may not rely on events or observations subsequent to the commencement of the seizure to bolster the argument that they had reasonable suspicion.”).

As further support for its distinction, the majority relies on California v. Hodari D., 499 U.S. 621 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991), a decision that it quite correctly notes is not mentioned in McFarley . I might add that Hodari D. is not mentioned in the briefs of the parties either, and for good reason: Letsinger did not flee or otherwise resist 1 these officers. Hodari D. is thus inapposite.

In my view, the majority not only applies Hodari D. outside its context, but also misinterprets the Court’s idea of “submission” to authority. The seizure of a person or his property rarely makes him happy. He may scream, curse, beg, cajole, or connive, but if he does not run, hide, pull a gun, or place any physical obstacle in the officers’ way, he has submitted. See, e.g., Wilson, 953 F.2d at 122-123 . After all, as the majority emphasizes, the essence of a seizure is generally the taking of physical possession; likewise, the essence of submission is generally the absence of physical resistance.

Finally, I should point out that Letsinger had no avenue of escape. He was standing in the doorway of a tiny sleeping compartment on a moving train. Three officers stood in the narrow hallway in front of him. Though the cramped quarters and moving train do not effect a seizure ipsis factis, Florida v. Bostick, 501 U.S. 429, 435-436 , 111 S.Ct. 2382, 2386-87 , 115 L.Ed.2d 389 (1991), they are most definitely relevant circumstances. Id. at 437-439 , 111 S.Ct. at 2387-89. Letsinger’s luggage was seized before he made his self-incriminating statements.

III.

Because I would hold that Letsinger’s bag was seized, I must address whether the officers possessed specific and articulable facts that would warrant a reasonable belief that it would contain contraband. 2 I will address the various “facts” relied on by the government in turn.

i. From the Source

As we all now know, New York is a “source city” for drugs, though this “fact” says nothing about any particular New Yorker. It is also a “source city” for bagels and stockbrokers, and I doubt the officers came to Letsinger seeking lunch or investment advice. New York is by far the nation’s largest city, so an American picked at random is more likely to be from there than anywhere else. 3 Likewise, urbanites are more likely to rely on mass transportation than their rural or suburban fellow citizens. Probably dozens of passengers on Letsinger’s train were from New York, but the officers came to see him. Their suspicion must have truly rested on something else.

*148 And small wonder. Millions of law-abiding and crime-fearing Americans are from New York City. Countless others travel there or through there 4 for pleasure or lawful business, and the experience neither corrupts their blood nor taints their souls. No specific, articulable basis warranting a reasonable belief that Letsinger’s luggage contained contraband can be gleaned from his boarding the train in New York.

ii.Legal Tender

Paying for a one-way ticket with cash is not nearly so “suspicious” (if suspicious at all) where the mode of transportation is a train (or bus) rather than an airplane. 5 First of all, train tickets are generally cheaper than airline tickets, and trains attract persons of lower economic means. “Poverty is no disgrace to a man, but it is confoundedly inconvenient.” 6 One of these confounded inconveniences is a dependence on cash. In the same vein, the expense of air travel prompts passengers to plan trips carefully, so one would expect a higher proportion of plane tickets to be round-trip.

Here, the “suspiciousness” ascribed to Let-singer’s use of the currency of the United States as a legal tender for a debt is greatly attenuated by the lack of any details of that use. The agents who seized his luggage had no idea how much cash Letsinger used — and we are not told on appeal — or of anything peculiar about that cash. Now compare this vacuum of information with United States v. Sokolow, 490 U.S. 1 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989). In Sokolow , the officers who stopped the defendant knew that he had purchased round-trip airline tickets from Honolulu to Miami for $2,100, all in $20 bills (105 by my count), and had peeled these from a wad twice as large. Id. at 4 , 109 S.Ct. at 1583-84 . The Supreme Court concluded that some reasonable suspicion could be gleaned from Sokolow’s actions. Id. at 8-9 , 109 S.Ct. at 1585-86 . In this case, we have simply the unadorned fact that Letsinger paid cash, and unless we are willing to embrace the elitist (not to mention misguided) proposition that every upstanding citizen pays for any ticket, however cheap, with a credit card, we cannot impute any hint of wrongdoing to it. 7

iii.Fear and Trembling

Letsinger was nervous, but Hanson admitted that persons he interviews get nervous “more often than not,” and Letsinger’s nervousness was “typical.” Of course, the more “typical” the behavior, the less “suspicious” it is. I suspect that it is a rare citizen indeed whose pulse does not quicken when he is confronted with three police officers at his door.

iv.Don’t Call Us

Lastly, there is the “bad” call-back number that Letsinger may have given Amtrak. 8 This point is perhaps the most “suspicious,” but of what is not so clear. Letsingei was not traveling under an alias or attempting to *149 conceal anything about himself. What advantage he would have derived from giving a “bad” number to Amtrak is unexplained.

v. E Pluribus ...

The question remains, however, whether these factors — the “source city,” cash, one-way ticket, nerves, and wrong number — can collectively bear the weight that each falls so short of bearing alone. In my view, they cannot. 9 At most, they support only an “inchoate and unparticularized suspicion or ‘hunch,’ ” Terry, 392 U.S. at 27 , 88 S.Ct. at 1883, and are woefully inadequate as objective indicators of criminal conduct to assure that innocent Americans can pursue happiness without the unreasonable interference of the police, which is, after all, their cherished right.

I dissent.

. The vast majority of Hodari D. cases involve flight, though a few occur where a suspect, though immobile, is able to physically fend off capture. E.g., Menuel v. City of Atlanta, 25 F.3d 990, 995 (11th Cir.1994) (subject trapped in surrounded house resisted with gunfire).

. I accept for purposes of argument that the basic Terry /Place "reasonable suspicion” test applies here, but I think it not insignificant that the officers would seize an item they had never even seen from inside Letsinger's private compartment. This compartment may not be the equivalent of a hotel room, in which an individual has a strong interest in privacy, see Stoner v. California, 376 U.S. 483, 490 , 84 S.Ct. 889, 893-94 , 11 L.Ed.2d 856 (1964), but it is much nearer that than a public airport concourse or a seat on the bus.

.According to the 1990 census, nearly three percent (7,322,564 of 248,709,873) of the nation's population lives in New York. It is over twice as large as its closest competitor, Los Ange-les (3,485,557).

. Letsinger himself is an example. According to the uncontradicted affidavits of his mother and sister, he is an accountant and lives in suburban Long Island. He boarded the Amtrak train in Manhattan because that is where the terminal is. New York may be a “source” of drags, but it is also a transportation hub for persons traveling from somewhere else to somewhere else.

. This insightful point was made by Senior Judge Phillips in the panel opinion in United States v. Torres, 65 F.3d 1241, 1246 (4th Cir.1995). The panel opinion was later vacated when we granted rehearing en banc; ultimately, we affirmed the judgment of conviction by an equally divided court. United States v. Torres, 77 F.3d 91 (4th Cir.1996) (en banc). Though no one can rely on Torres for precedent, I nonetheless find the logic of the panel opinion persuasive in its own right.

. Rev. Sydney Smith, His Wit and Wisdom, quoted in The Penguin Dictionary of Quotations 369 (J.M. & M.J. Cohen eds.1960).

. Where I live, there are still lots of purehearted folks who have never had a checking account, let alone a credit card. I suppose they are suspicious of banks and the world of high finance, which are suspicions that a student of the last seven decades of American history could not deem entirely groundless.

. I say “may have given” because the only witness who testified at the suppression hearing, Officer Hanson, did not know the call-back number, who recorded it, or whether it was recorded correctly. Amtrak's passenger list had transposed two letters of Letsinger's name (rendering it “Lestinger"), and a similar transposition error was certainly possible as to his telephone number.

. See, e.g., Reid v. Georgia, 448 U.S. 438 , 100 S.Ct. 2752 , 65 L.Ed.2d 890 (1980) (per curiam), where similarly innocuous "facts” were deemed insufficient to establish reasonable suspicion.