Prologue — Va Lerie v. United States

Supreme Court, U.S.

PILE D

051058FEB 16 2006

IN THE

Supreme Court of the United States

KEITH A. VA LERIE,

Petitioner,

UNITED STATES,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES MARTIN DAVIS

Davis Law Offices

1623 Farnam Street, No. 500

Omaha, NE 68102

(402) 341-9900

JAMES E. RYAN

DANIEL R. ORTIZ

University of Virginia

School of Law

580 Massie Road

Charlottesville, VA 22903

February 16, 2006

DAVID T. GOLDBERG ~

Counsel of Record

99 Hudson Street, 8th FI.

New York, N.Y. 10013

(212) 334-8813

Counsel for Petitioner

QUESTION PRESENTED

Addressing a question that has engendered disagreement

and confusion among the lower courts, the decision below, for

a deeply divided en banc court, held that when law enforcement

agents act to obtain “dominion and control,” Jacobsen v. United

States, 466 U.S. 109, 120 (1984), over personal property an

individual has temporarily entrusted to a common carrier or

other bailee, they do not effect a “seizure” within the meaning

of the Fourth Amendment, unless the government actions also

delay his retrieving the property. The question presented is:

Whether the Eighth Circuit’s rejection of the “dominion

and control” standard and its three-part test for seizure are

faithful to this Court’s directly controlling precedent and to the

Fourth Amendment?

(I)

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TABLE OF CONTENTS

CEILS FHEPUSIEE Sc cc tcaccvcevscdiverseess (1

TABLE OF AUTHORITIES ...........0:eseeeeeees ili

OPINIGING BELOW 2. ccs cscccccess po eeeceeeecees 1

cs Pe Pe pe Seer Pre l

CONSTITUTIONAL PROVISION INVOLVED ........ l

es rrr ry ee eee Pere oe be errors l

REASONS FOR GRANTING THE PETITION ......... 9

I. The Eighth Circuit’s Rule And The Decisions on

Which It Relies Conflict With

The Controlling Decision of This Court ........... 11

II. The Decision Below Adds To The Division

and Inconsistency Among The Lower Courts ....... 15

A. The Eighth Circuit’s Rule Conflicts

With Decisions of Other Courts............... 16

B. The Eighth Circuit Approach Fails to

OOO Ce sag ods Manas edo hee ese 21

III. Jacobsen Correctly Interpreted The

eee ere re ree 23

CRC AAPM is 0.55 bos Rav cous oben duees ere eh es 29

TABLE OF AUTHORITIES

LAWS

U.S. Const. Amend. TV ....... see e cece cece eee ees

SI EE eho S ad ee eRe nae coud ensawebase

Oe ed BEE ev co Sie siberesabivahs tiekdonee ne.

eh 8c TNE & os | GSN yr ene n ny ree rae ne ee

ek Sw D5 ) Pare mre ence rime see er reo

FEDERAL CASES

Abel v. United States, 362 U.S. 217 (1960) ...........

Arizona v. Hicks, 480 U.S. 321, 328 (1987) ............

Bond v. United States, 529 U.S. 334 (2000) ...........

Boston & Maine R. Co. v. Hooker, 233 U.S. 97 (1911)...

California v. Hodari D., 499 U.S. 621 (1991) ..........

Cardwell v Lewis, 417 S38 Re re ee a ene

Delaware v. Prouse, 440 U.S. 648 (1979) ..........44.

Hester v. United States, 265 U.S. 57 (1924) ........

Illinois v. Lidster, 540 U.S. 419 (2004) ...............

Illinois v. McArthur, 531 U.S. 326 (2001) .............

-jV-

City of Indianapolis v. Edmond,

PPC NE 6 heed cad des Kone eeCAd Rs Cae 28

Jacobsen v, United States,

Ee CE OER Fok s es ba R cud dsee ess passim

Koch Petroleum Group, L.P. v. Alliant Energy Indus.

Servs, Inc., 280 F. Supp. 2d 630 (S.D. Tex. 2003) ... 24

Kostelec v. State Farm Fire & Cas. Co.,

OO Fe TET COD ow ko Skee deh ed pies 4

Lingle v. Chevron U.S.A., Inc.,

Se i ik ihn eae be coi eu des 25

Mancusi v. DeForte, 392 U.S. 364 (1968) ............ 24

Maryland v. Macon, 472 U.S. 463 (1985) ..........05. 27

Michigan Dep't Police v. Sitz,

MG UE POR bbe che cs aoa erie aeeees 28

Petham'v. Rose, 16 U.S. 103 C1969) 25s bcc cee weses 23

Railway Express Agency, Inc. v. New York,

FIO Sy FO CET ss oo ok esos 4s heb eee ee EOD 28

Rakas v. Illinois 439 U.S. 128 (1978) ...........0005. 25

Rawlings v. Kentucky, 448 U.S. 98 (1980) ............ 25

Rossi v. Town of Pelham,

35: F. Sump. 26660). MAL 1997). boc cd vccadacaess 24

Segura v. United States, 468 U.S. 796 (1984) .... 14, 15, 25

-V-

Soldal v. Cook County, 506 U.S. 56 (1992) ... 9, 15,27, 28

Stoner v. California, 376 U.S. 483 (1964) ............ 25

Tennessee v. Garner, 471 U.S. 1 (1985) ...........-.. 26

Terry v. Ohta, 392 U.S. 1, 19 (99GB) occ eevee 13, 27

United States v. 1982 Sanger 24' Spectra Boat,

VA pve gst, fe | ) rn re 24

United States v. 408 Peyton Rd,

ee ie Oe CO ls TOPE) ous Hack vene venue 23

United States v. Aldaz, 921 F.2d 227 (9th Cir.1990) ..... 20

United States v. Allen, 644 F.2d 749 (9th Cir.1980) ..... 24

United States v. Banks 3 F.3d 399 (11th Cir. 1993) ..... 20

United States v. Demoss,

Bee eee CG SPO Ks. b vba vi eee ee eee 5, 27

United States v. Dennis,

Bae ee a TE ERTS hehe sobre sedes ts 19, 20

United States v. England, 971 F.2d 419 (9th Cir. 1992) .. 20

United States v. Gant, 112 F.3d 239 (6th Cir.1997) ..... 20

United States v. Glover, 104 F.3d 1570 (10th Cir. 1997) . 19

United States v. Gomez, 312 F.3d 920 (8th Cir. 2002) . 4,5

United States v. Hernandez,

BEd ie Lae Ce Ge: PS ob k's ov 6a en ea 27

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United States v. Jeffers, 342 U.S. 48 (1951) ........... 25

United States v. Johnson,

Dae Fe Fae Coe GEO no be ph wedewevctaeuce 16

United States v. Karo, 468 U.S. 705 (1984) ........... 27

United States v. LaFrance, 879 F.2d 1 (1st Cir. 1989) ... 27

United States v. Letsinger, 93 F.3d 140 (4th Cir. 1996) .. 24

United States v. Lovell,

849 F.2d 910 (Sth Cir.1988) ............... 6, 16, 21

United States v. Morones,

Poe Pe Se a OE sii ck Seekceedess 5,17

United States v. Paige,

Roe Foe 10E se Ce CH SRE. oek cv icencescvcovn 13

United States v. Place, 462 U.S. 696 (1983) ........ 12,15

United States v. Puglisi, 723 F.2d 779 (11th Cir.1984) ... 19

United States v. Robinson,

S90 F 36 S53 CO Cl, FOOD) oo oc vcccvcccecess 19, 20

United States v. Van Leeuwen, 347 U.S. 249 (1970) .. 11, 19

United States v. Vasquez,

ZED FSR ACG, BRD ev hic ened vvapescesis 5

United States v. Ward,

144 F.3d 1024 (7G Cur. E996) . nn ccccvecsse passim

Warden v. Hayden, 387 U.S. 294 (1967) .............. 28

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STATE CASF™

Arizona v. Peters, 941 P.2d 228 (Anz.1997) ........... 21

Colorado v. Ortega, 34 P.3d 986 (Colo. 2001) ........ 19

Florida v. Goodley, 381 So.2d 1480 (Fla. App. 1980) .... 6

Florida v. LaSalla, 536 So.2d 1037 (Fla. App. 1989) ... 18

Focal Point, Inc. ». U-Haul Co. of Arizona, Inc.,

746 P.2d 488 (Ariz. App.1987) .....-.-...0 sere. 26

Illinois v. McPhee, 628 N.E. 2d 523 (Ill. App.1993) ..... 18

Illinois v. Shapiro, 687 N.E.2d 65 (Ill. 1997) .......... 18

Indiana vy. Rios, 762 N.E.2d 153 (Ind. App. 2002) ...... 16

Johnson v. Hanna, 101 N.W.2d 830 (S.D. 1960) ...... 25

Montana v. Ochadleus 110 P.3d 448 (Mt. 2005) ........ 16

North Dakota v. Ressler,

Fel PEW de PIS. BOO) ka vc known re eens 17, 18

Ohio v. Knight,

679 N.E.2d 758 (Ct. Comm. Pleas 1997) ....... 17, 18

Southeastern Greyhound Lines v Berrie,

13 So. 2d 606 (Ala. App.1943) ......0ccccccnseee 26

Virginia v. Hurley, 548 S.E.2d 266 (Va. App. 2001) .... 19

——s

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OTHER MATERIALS

75 AM. JUR. 2D. TRESPASS ................ ac ale

BLACK’s LAW DICTIONARY (7th ed. 1999) ............ 23

RESTATEMENT (SECOND) OF TORTS § 222A ........... 26

Keeton, et al., PROSSER AND KEETON

ON THE LAW OF TorTS (Sth ed.1984) ....... ‘eee ae

Ludingten, Annotation, Liability of Motor Carrier

for Loss of Passenger's Baggage or Packages,

es ah che ken weeueweeeeees 26

OPINIONS BELOW

The decision of the en banc Eighth Circuit, reported at 424

F.3d 694, is reprinted in the appendix at Pet.App.la. The

district court opinion is unreported and is reprinted at 35a, and

the magistrate judge’s report and recommendation is at 51a.

The opinion of the Eighth Circuit panel, vacated on rehearing,

was originally reported at 385 F.3d 1141 and is reprinted at 65a.

JURISDICTION

This Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§ 1254(1). Jurisdiction was proper in the district court based

upon 18 U.S.C. § 3231. Jurisdiction was proper in the appeals

court based upon 18 U.S.C. § 3731. The United States Court of

Appeals for the Eighth Circuit entered judgment on October 3,

2005. On December 27, 2005, Justice Thomas extended the

time for filing the time for filing a petition for certiorari to and

including February 16, 2006.

CONSTITUTIONAL PROVISION INVOLVED

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated * * * *

U.S. Const. amend. IV

STATEMENT

The decision of the en banc court in this case was-rendered

on a government appeal, see 18 U.S.C. § 3731, from a decision

granting Petitioner Keith Va Lerie’s motion to suppress

physical evidence found during a search of a garment bag he

had checked while traveling by Greyhound bus from Los

Angeles, California to Washington, D.C.

When the bus stopped for refueling at the Greyhound

terminal in Omaha, Nebraska, an agent of the Nebraska State

Patrol (“NSP”), Alan Eberle, looked inside its lower luggage

compartments. The agent later testified that he had noticed a

“newer-looking garment bag” in one of the compartments, and

had observed that the bag had a Greyhound baggage ticket

2

bearing an individual’s name, but no telephone number and no

handwritten name tag. A computer check on the luggage ticket

indicated that the passenger, listed as “Valerie Keith,” had paid

cash, for a one-way ticket, on the day of travel — circumstances

the agent testified he found suspicious.

Eberle instructed another officer to remove the bag from the

bus and take it to a room in the rear baggage termjnal — and he

then had “Valerie Keith” and “Keith Valerie” paged over the

public address system. When Petitioner responded, Eberle

identified himself as a law enforcement officer, telling Mr. Va

Lerie that he was not under arrest or “in trouble,” but asking

him to produce both his bus ticket and identification.

Upon confirming that the name on the ticket and

identification matched the name on the garment bag, Eberle led

Mr. Va Lerie to the private room where the garment bag was

being held. At least two and as many as four police officers

were in the room — and no Greyhound employee.

There was divergent testimony as to what occurred next —

Eberle maintained that he had sought permission to open the

bag and had received an (unspecificd) “affirmative verbal

response,” which Mr. Va Lerie disputed — but a search of the

bag uncovered five sealed bags containing drugs; Petitioner was

placed under arrest and indicted on federal narcotics charges.

Mr. Va Lerie moved to suppress both the physical evidence

and statements the police had elicited after he had invoked his

right to speak with an attorney. The district court granted this

motion in full. See Pet. App.35a-50a.

In partial disagreement with the magistrate judge — who had

concluded that the agents’ actions in removing the bag from the

bus and taking it to the private room was a “seizure” but had

recommended denying suppression on the ground that agents

had possessed “reasonable articulable suspicion,” Pet.App.57a

— the district court held that the agents’ actions:

constituted an unconstitutional seizure in violation of [Mr.

Va Leric’s} Fourth Amendment rights because they

3

occurred without consent, reasonable suspicion, probable

cause, or a warrant.

Id. 45a. The court further concluded that the search of the bag

was so intertwined with the initial seizure that even voluntary

consent to the search would not have rendered the evidence

admissibie. In any event, the court found, the totality of the

circumstances established that no consent to search the bag had

been voluntarily given. /d. 45a-47a.'

The government’s interlocutory appeal “expressly

decline[d} to challenge the district court’s * * * holding that

Eberle lacked reasonable suspicion,” Pet.App.74a n.5 (panel

opinion). Rather, the government placed sole reliance on an

argument it had not initially advanced in the district court: that

“no constitutional ‘reasonable suspicion’” was required —

because “no constitutional seizure” had occurred. Accord id.

79a (Melloy, J., concurring) (noting that the parties initially had

“seemed to assume that a seizure occurred” and that only later

did the prosecution “abandon[{] the reasonable suspicion

argument”).

The government further asked that the district court’s

factual finding concerning voluntariness be reversea us clearly

erroneous — but it did not challenge the correctness of the

' In making that finding, the district court recognized that the officers

were not required to tel] Petitioner that he could withhold consent and noted,

inter alia, that Mr. Va Lerie was a person of sufficient maturity and

intelligence to understand a consent request and that the agents had not acted

in violently or threateningly, but decided that other circumstances weighed

heavily against “voluntariness,” stressing that Petitioner was “alone, in a

private room, with at least two armed police officers,” who already had

“{hjis bag in the[ir] possession” when he was asserted to have authorized

their search. Pet.App.47a.

The court also concluded — in a ruling the government did not challenge

on appeal — that the agents’ post-arrest interrogation of Mr. Valerie after he

had expressly invoked his right to counsel was a serious enough violation of

his Miranda rights that statements they had elicited could not be introduced

at trial, even for impeachment purposes. See Pet.App.49a.