United States v. Conrad Whitehead, Ii, United States of America v. Hector Quesada

MURNAGHAN, Circuit Judge,

dissenting:

Because I believe that a passenger train sleeping compartment is more analogous to a temporary home than to an automobile for Fourth Amendment purposes, I find that Whitehead’s legitimate and reasonable expectation of privacy was violated by the search. I, therefore, respectfully dissent.

I

The Fourth Amendment “protects people from unreasonable Government intrusions into their legitimate expectations of privacy.” United States v. Chadwick, 433 U.S. 1, 7 , 97 S.Ct. 2476, 2481 , 53 L.Ed.2d 538 (1977). In order to establish a constitutionally legitimate expectation of privacy, a defendant must demonstrate two conditions: (1) the defendant must have exhibited an actual, subjective expectation of pri *861 vacy; and (2) the expectation must be one that the society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507, 516-17 , 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).

There is no dispute that the subjective prong of the two part Katz requirement was satisfied by Whitehead. Indeed, he purchased a ticket to a first class sleeping compartment which entitled him to exclusive use of that compartment. It contained a bed, a sink, and a commode. It could also be locked securely from the inside. The defendant clearly manifested an actual, subjective expectation of privacy.

The primary issue here, therefore, is whether the defendant satisfied the objective prong of the Katz requirement. The Supreme Court has held that “[n]o less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures.” Stoner v. California, 376 U.S. 483, 490 , 84 S.Ct. 889, 893 , 11 L.Ed.2d 856 (1964). In order for police officers to search a hotel room, therefore, they must have probable cause and a warrant, except under exigent circumstances. See id. at 490 , 84 S.Ct. at 893 ; United States v. Lyons, 706 F.2d 321, 326 (D.C.Cir.1983). The majority holds, however, that a defendant in a train sleeping compartment enjoys a diminished expectation of privacy as compared to a defendant in a hotel room. It contends that a sleeping compartment is more like an automobile or a motor home than a hotel room. Therefore, according to the majority’s reasoning, Whitehead is entitled to no more expectation of privacy for Fourth Amendment purposes than an occupant in an automobile.

The majority contends that the diminished expectation of privacy in a train compartment arises from the exigency created by ready mobility, see United States v. Ross, 456 U.S. 798, 806-07 , 102 S.Ct. 2157, 2163 , 72 L.Ed.2d 572 (1982), and from the range of governmental regulations, see California v. Carney, 471 U.S. 386, 392 , 105 S.Ct. 2066, 2069-70 , 85 L.Ed.2d 406 (1985). See also United States v. Liberto, 660 F.Supp. 889, 891 (D.D.C. 1987), aff'd without op., 838 F.2d 571 (D.C. Cir.1988). The majority’s reliance on those two factors is not persuasive. First, unlike an automobile, motor home or a boat, a suspect has no control over the movement of the train. A train must run on tracks and conform to a schedule set independently of the suspect. Therefore, the whereabouts of the suspect and the contraband remained known to the law enforcement officers. Therefore, it cannot be said that the opportunity to search was fleeting, see Chambers v. Maloney, 399 U.S. 42, 51 , 90 S.Ct. 1975, 1981 , 26 L.Ed.2d 419 (1970), or that the train “could readily have been moved beyond the reach of the police.” Carney, 471 U.S. at 393 , 105 S.Ct. at 2070 . While a train may move in and out of different jurisdictions, since the train route is preset, the government, anticipating arrival and whereabouts, could have applied in advance for a warrant in the jurisdiction through which the train is scheduled to travel. See United States v. Goff, 681 F.2d 1238, 1240 (9th Cir.1982). Indeed, the defendant was already under suspicion before he boarded the train in Miami. A federal law enforcement officer did not board the train until the train reached Washington, D.C., and the search was not conducted until the train reached Baltimore. The elapsed time by railroad from Miami to Baltimore was ample to permit application for and issuance of a warrant.

Second, while railroad travel is a highly regulated form of transportation, the regulations are generally aimed towards railroad companies and not their passengers. While such regulations may lessen the expectation that a railroad company may have with regard to safety inspections, it certainly cannot be successfully argued that they lessen the passengers’ expectation of privacy. Admittedly, passengers in a sleeping car must purchase a ticket and are subject to certain inquiry and oversight concerning solely the travel aspects of their presence on board by conductors and other railroad personnel. See Liberto, 660 F.Supp. at 891 . However, the degree of intrusion accompanying routine ticket checks is so minimal that passengers’ reasonable expectations of privacy of their persons could not be deemed to have been diminished as is here claimed by the *862 government. Indeed, routine ticket checks are no more intrusive, in fact less so, than the daily visits by cleaning personnel at a hotel.

The fact that the train compartment could not be locked from the outside is not sufficient to find a diminished expectation of privacy. Because of the adequate accommodations within the compartment, if the defendant had brought his own food or had it delivered, he need not have left the room for any reason until the train had reached the ultimate destination. Moreover, in Katz , the phone booth could be locked neither from the inside nor the outside. For the hours that Whitehead was aboard the train, the compartment was his temporary, transitory home and served as the repository of his personal effects. Both the occupant and the contents were not in plain view. See Cardwell v. Lewis, 417 U.S. 583, 590 , 94 S.Ct. 2464, 2469 , 41 L.Ed.2d 325 (1974).

Therefore, the rationales supporting war-rantless searches of automobiles are not persuasive as they are applied to sleeping train compartments. Such compartments should be treated, for Fourth Amendment purposes, like a hotel room. A search without probable cause and without a warrant of a train compartment cannot meet the Fourth Amendment constitutional standards. Cf . United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir.1985) (a dog sniff in the corridor outside a residential apartment is a “search” requiring a warrant based on probable cause), cert. denied sub nom., Fisher v. United States, 474 U.S. 819 , 106 S.Ct. 66 , 88 L.Ed.2d 54 (1985). In sum, the canine search of Whitehead’s sleeping compartment violated his Fourth Amendment right to be free from unreasonable searches and seizure.

II

It is well established that an investigative stop, amounting to a Fourth Amendment seizure, must be “supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982) (quoting Reid v. Georgia, 448 U.S. 438, 440 , 100 S.Ct. 2752, 2754 , 65 L.Ed.2d 880 (1980) (per cu-riam)). Even if Whitehead’s expectation of privacy in his train compartment were no greater than that of an occupant in an automobile, I disagree with the majority and find that the law enforcement officers did not possess an articulable, reasonable suspicion that the defendant was engaged in trafficking.

The district court listed numerous objective factors that were allegedly sufficient to arouse a reasonable suspicion. While I agree that each individual factor need not directly point to a criminal activity, see United States v. Moore, 817 F.2d 1105, 1107 (4th Cir.1987), even when the factors in the instant case are considered together, on the totality of the circumstances, they are not enough to comprise an articulable suspicion. Many of the factors would also describe a large number of presumably innocent persons. Many innocent people, even from New York City, travel to and from Miami and presumably some stay at the DiLido Hotel. Many people dislike or fear flying and, therefore, would prefer to travel by train, regardless of whether it is more time consuming or more expensive than a plane ride. The fact that Whitehead paid with cash does not raise suspicions of ongoing criminal activity. See United States v. Sokolow, 808 F.2d 1366, 1371 (9th Cir.1987).

This Court has held that scanning the boarding area and looking “nervous” are not enough to trigger the reasonable suspicion standard. See United States v. Gooding, 695 F.2d 78, 83-84 (4th Cir.1982). In addition, at the time of the search, the officers did not know that Whitehead was using an alias. See Sokolow, 808 F.2d at 1370 (the search cannot be based on information that is a fruit of the seizure itself). Therefore, the canine search of Whitehead’s train compartment cannot be justified under the constitutional requirement of a reasonable and articulable suspicion.

Because Whitehead’s conviction was obtained by the use of illegally seized evidence, I would vacate the judgment and remand for a new trial.