Petition for Writ of Certiorari — Va Lerie v. United States

4

determination that, under the circumstances, consent to the

search would not break “the causal chain,” id. 79a & at n.6, if

the seizure holding were sustained.

A divided panel of the Eighth Circuit upheld the district

court’s decision, see Pet.App.65a; id 77a (Melloy, J,

concurring in result), id. 79a (Riley, J., dissenting). Relying on

Circuit precedent “establishing that a Fourth Amendment

seizure occurs when an official ‘exert[s] dominion and control

over the [item],’” Pet. App.72a (quoting United States v. Gomez,

312 F.3d 920, 923 n.2 (8th Cir. 2002)), the panel held that the

“garment bag was seized within the meaning of the Fourth

Amendment when Eberle had the bag removed from the bus,

taken to a room inside the rear baggage terminal, and detained

while the officer endeavoied to locate the bag’s owner and

obtain consent to search the bag.” Jd. 74a.’ In view of the

? Judge McMillan further explained that “(a} bus passenger traveling

with luggage placed in a common compartment of the bus does not

reasonably expect that his or her luggage will be physically removed from

the bus without his or her knowledge and detained so that consent to a search

of the luggage may be sought,” Pet.App.73a.

Concurring in the judgment, Judge Melloy agreed that the case was

controlled by circuit precedent, but indicated interest in the Eighth Circuit's

“re-visit[ing] the issuc of what constitutes a scizure in the context of a

temporary removal and inspection of packages and luggage that have been

sent or checked with common carriers,” id. 79a.

Judge Riley echoed this call for plenary consideration, but disagreed

that the panel was constrained by precedent to find a seizure. He asserted

that the cases relied on by the majority conflicted with other Lighth Circuit

decisions, meaning that the panel was “free to chose which line of cases to

follow,” id. 80a (citing Kostelec v. State Farm Fire & Cas. Co., 64 F.3d

1220, 1228 n.8 (8th Cir. 1995)), and indicated that, on his preferred standard,

the government’s appeal would succeed:

I would hold law enforcement’s temporary removal of a commercial bus

passenger’s checked luggage from a lower luggage compartment to a

room inside the terminal does not constitute a seizure if the removal of

the luggage does not delay the passenger's travel, affect the timely

delivery of the checked luggage, or interfere with the carrier’s normal

processing of the checked luggage.

5

government’s failure to appeal on the “taint” issue, see supra,

the pane! had no occasion to address the finding that the search

was not consented-to and therefore unconstitutional.

The government petitioned for en banc review, renewing its

“no seizure” and voluntary consent arguments — while again

refraining from challenging either the “no reasonable suspicion”

finding or the ruling that cor‘ent could not supply an

independent basis for admitting the evidence.

A sharply divided en banc court reversed the district

court’s judgment. The majority opinion highlighted the

importance of “speak[ing] with a clear voice when discussing

the scope of the Seizure Clause” and the difficulty of

reconciling Eighth Circuit cases presenting the same general

question — “what constitutes a seizure in cases involving law

enforcement’s interference with luggage or mailed packages.”

Pet.App.9a-10a & n.3 (contrasting, e.g., Gomez, 312 F.3d 920

(holding no seizure occurred when a drug interdiction officer

moved package from a postal sorting area to command center

twenty yards away), and United States v. Vasquez, 213 F.3d 425

(8th Cir. 2000) (no seizure when officers at Federal Express

facility examined the outside of a package and subjected it to

canine sniff), with United States v. Morones, 355 F.3d 1108

(8th Cir. 2004) (finding seizure when officer removed package

from Federal Express conveyor belt and subjected it to canine

sniff), and United States v. Demoss, 279 F.3d 632 (8th Cir.

2002) (same)).

The majority opinion acknowledged the central importance

of United States v. Jacobsen, which had held that federal

agents’ detaining and examining a package at a Federal Express

facility-was a “seizure” within the meaning of the Fourth

Amendment — but not an unreasonable one — but it declined to

read Jacobsen as holding that government agents’ acquisition

of “dominion and control,” 466 U.S. at 120, over property in

Pet.App.80a. :

6

itself amounts to a seizure. See Pet.App.12a (“We do not

believe the Court meant to express two different standards”’).

Rather, relying heavily on decisions of other federal and

state courts, the majority announced a three-part test: the Fourth

Amendment applies on/y in instances when the individual can

show — “law enforcement’s detention of checked luggage [1]

delays [his] travel * * * [2] delay[s] its timely delivery or [3]

* * * deprive[s] the carrier of custody. Pet.App.20a. “If none

of these factors is satisfied, then no Fourth Amendment seizure

has occurred,” id.

The majority described this rule, focusing “on the

defendant’s freedom of movement and his expectation of timely

delivery of his checked luggage,” id. 14a (citing United States

v. Lovell, 849 F.2d 910, 916 (Sth Cir.1988)), as flowing from

Jacobsen’s identification of a “seizure” with a “meaningful

interference with * * * possessory interests,” see 466 U.S. at

113, expressing agreement with decisions holding that a

traveler’s possessory interests are not impaired until — and

unless — retrieval is delayed, i.¢., that a passenger “‘ha[s] no

cognizable interest in repossessing his bag until the bus

arrive[s]’ at its destination,” Pet.App. 18a (quoting United States

v. Ward, 144 F.3d 1024 (7th Cir.1998). See id. 20a (a “‘traveler

who checks his luggage has no knowledge and, in fact, no real

concern as to precisely where his bag may be located within the

airline’s custody at any given time’”) (quoting Florida v.

Goodley, 381 So.2d 1180, 1182 (Fla. App. 1980)).

The majority further described its rule as consistent with

the Fourth Amendment’s general focus on expectations, citing

the Seventh Circuit’s observations that a passenger has “‘no

reasonable expectation * * * that [a] bag [will] not be touched,

handled, or even removed from the bus prior to the bag’s

arrival,’ at its destination,” Pet.App.18a (quoting Ward, 144

F.3d at 1032), and its equation of seizure with “‘interference

with [a traveler’s] contractually-based expectation that he

would regain possession of the bag at a particular time,’” id.

7

(quoting 144 F.3d at 1033). The court described its rule as also

comporting with common law principles, see id. 13a (noting

that “the tort of conversion differs from the tort of trespass in

that conversion requires ‘an intent to exercise a dominion or

control over the goods which is in fact inconsistent with the

fowner]’s rights”) (quoting Keeton, et al., PROSSER AND

KEETON ON THE LAW OF TorRTS § 15 at 92, 102 (Sth ed.1984)),

and supported by this Court’s recognition that the Fourth

Amendment is unconcerned with merely “technical” or

“inconsequential” violations. Pet.App.12a, 19a.

Applied to Mr. Va Lerie’s case, the majority held, this test

established that no Fourth Amendment seizure had occurred.

Because the events occurred during a stopover, when a

passenger would not have expected to have control over

checked luggage, and because it appeared that a search could

have been completed in time for Mr. Valerie and the bag to re-

board, see Pet.App. 22a — the court concluded, neither his

possession nor his freedom of movement had been

meaningfully interfered with.

Answering the dissent’s insistence that precisely the same

could be said about Jacobsen, see infra, the majority pointed to

the third element of its test: it was “law enforcement’s exertion

of dominion and control over * * * in contravention to Federal

Express’s custody of the package,” that made it a “seizure under

the Fourth Amendment,” Pet.App.12a (emphasis added); the

agents here did not “deprive[] Greyhound of its custody of the

luggage,” id. 13a. Unlike in.Jacobsen, where “the DEA agents

* * * took custody of the package by exerting dominion and

control over it for their own purposes,” /d. 23a n.9, the majority

explained, the NSP’s removal of the bag to the room in the

terminal! was done as an accommodation to Greyhound, which

did not want passengers in the refueling area.

The majority opinion then overturned the district court’s

finding that the search of the garment bag had not been

voluntarily consented to. After highlighting that the magistrate

8

judge had recommended finding voluntary consent and

cataloguing the various factors supporting such a finding, the

opinion took issue with the district court’s er-nhasis on the fact

that the encounter had occurred in a private room, with agents

already in possession of the bag, deserved significant weight:

Given our holding that the NSP was not constitutionally

forbidden to remove the checked luggage from the bus to

present the luggage to Va Lerie to seek consent to search,

we would be hard-pressed to conclude such a presentation

would be any different than simply asking Va Lerie for

permission to search his checked luggage.

_ Pet.App.26a-27a.’

In an opinion for five Eighth Circuit judges, Judge Colloton

dissented, describing the holding of the en banc majority as

“conflict|ing]” with Jacobsen, Pet.App.27a, explaining that

“{a|bsent a revision of doctrine by the Supreme Court, the NSP

investigators effected a ‘seizure’ of Va Lerie’s bag.”

Pet.App.34a.

Jacobsen, the dissent explained, had found a seizure

“clearly” effected, Pet.App.34a (citing 466 U.S. at 120 n.18)

(emphasis in Eighth Circuit opinion), in circumstances where

neither of the factors that other courts identified as

constitutionally determinative was present. Given that the

defendants in that case were intended recipients of a package,

it was plain that the DEA’s actions would “not delay any travel

by the Jacobsens or impact their freedom of movement,” id.

30a, and the opinion likewise had found the package seized

without any discussion of whether delivery had been delayed or

indication that delay was constitutionally significant, id.

Nor did the DEA’s actions, Judge Colloton explained,

affect Federal Express’s “custody” in any way that could be

3In a one-sentence opinion, Judge Wollman stated that he concurred in

all but footnotes 8, 9, and I 1 of the majority opinion, describing these as

“unnecessary to the resolution of the issues before [the court],” Pet.App.27a.

9

distinguished from the law enforcement agents’ actions here.

Far from making a “finding that the investigators’ physical

possession and control of the luggage for investigative purposes

did not amount to ‘custody|,]’” he explained, the “district court

found that the NSP investigators ‘removed,’ ‘detained,’

‘seized,’ ‘sequestered,’ and exerted ‘thorough ‘dominion and

control’ over the garment bag,” Pet.App.32a n. 12 (citing district

court findings). But “if law enforcement’s physical possession

and control of Va Lerie's luggage — in a room inside the bus

terminal without Greyhound personnel present — did not

temporarily deprive Greyhound of its custody of the luggage,

then neither did the DEA's possession of the Federal Express

package in Jacobsen deprive the courier of its custody,” id. 31a

(emphasis added).

Nor, the dissent continued, could the decisions cited by the

majority, emphasizing “expectations” and “possessory

interests” account for Jacobsen’s holding. If “reasonable

expectations for how [property] might be handled,’” id 32a

(quoting majority opinion), had been significant, the DEA

agents in Jacobsen — who “merely replicated what Federal

Express itself already had done,” id. (citing 466 U.S. at 119-20)

— would not have effected a seizure. And far from asserting

especially strong “possessory interests,” the seizure claim in

Jacobsen had been advanced by “mere[] intended recipients

who had never actually possessed the package.” /d. 34a.

Jacobsen, the dissenting judges concluded, must be read as

holding that a seizure occurs when government “‘agents|]

assert{} dominion and control over [a] package and its

contents,’” Pet.App.29a (quoting 466 U.S. at 120) — whether or

not the factors highlighted by the majority are present. Under

that rule, the dissent concluded, the district court’s “seizure”

conclusion was inescapably correct.

REASONS FOR GRANTING THE PETITION

This case concerns the meaning of the Fourth Amendment’ s

prohibition on unreasonable seizures of property, a protection

10

“not mu. discussed in [this Court’s] cases,’” Jacobsen, 466

U.S. at113 n.5, but distinct from — and no less important than

~— the Amendment’s prohibition of unreasonable searches. See

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

protected by the injunction against unreasonable seizures is not

“of inferior worth”); Soldal v. Cook County, 506 U.S. 56, 68

(1992) (rejecting conclusion that Fourth Amendment only

“nominally applies” to seizures if a privacy interest is not

invaded).

Although the question decided below is essentially the same

one addressed by this Court in Jacobsen — how the prohibition

applies to government actions respecting “effects” (e.g., a bus

passenger’s checked baggage) that have been temporarily

entrusted to a common carrier, delivery service, or bailee —

lower courts continue to approach and resolve it in ways that

are inconsistent with Jacobsen and with one another.

In its decision, the Eighth Circuit — after highlighting the

extent of disagreement this question has engendered and the

importance of articulating a single, clear answer — cast its lot

with courts that have held that property is not “‘seized” within

the meaning of the Fourth Amendment when government

agents act affirmatively to acquire possession and control of it,

absent a further showing that the actions adversely affect the

oOwner’s repossession, e.g., by delaying his claiming checked

luggage or receipt of a package. Cf. Soldal, 506 U.S. at 62

(noting “Whether the Amendment was in fact violated is, of

course, a different question” from whether it applies).

These decisions (and the majority opinion below) have

explained this limitation as flowing from Jacobsen’s statement

that “[a] ‘seizure’ of property occurs when there is some

meaningful interference with an individual’s possessory

interests in that property,” 466 U.S. at 113. But as the

dissenting judges below explained, both the result reached by

the Eighth Circuit majority and the Fourth Amendment rule it

embraced are irreconcilable with the holding of Jacobsen,

11

which found property to have been “clearly” seized based on

law enforcement’s “dominion and _ control,” under

circumstances when the Eighth Circuit majority’s three-factor

test would not have been satisfied.

In addition to its conflict with directly controlling precedent,

the approach adopted by the Eighth Circuit decision fails to

bring clarity to the seizure question and, in fact, adds to the

uncertainty and inconsistency that have long attended this basic

— and ubiquitous — question of federal constitutional law. Other

courts have interpreted Jacobsen as did the dissenting judges

below, and many other decisions, citing this Court’s decision in

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

treated government actions as Fourth Amendment seizures that

the Eighth Circuit’s test would place outside the Constitution’s

reach.

In view of the large practical importance of the question

involved — and the significant misunderstanding of its

precedents evinced in the lower courts — this Court should grant

review and reaffirm that law cnforcement actions that entail

affirmatively asserting possession and control over personal

property are “seizures” subject to the Constitution’s

“reasonableness” limitation, whether or not they are completed

during the time that an owner has entrusted his property to a

common carrier or bailee.

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

Relies Conflict With The Controlling Decision of This

Court

Although the Eighth Circuit majority repeatedly cited

Jacobsen — and indeed presented its rule as a gloss on that

opinion’s language ~— both the result reached below and the

broader rule the Eighth Circuit embraced conflict with this

Court’s controlling interpretation of the Fourth Amendment.

As the dissent’s careful reading of precedent established, the

two factors identified as determinative of a Fourth Amendment

seizure in the decisions relied upon by the majority —

12

interference with travel and delay in delivery — were both

conspicuously absent in Jacobsen.

The defendants in that case were addressees of a package —

not travelers, so their “freedom of movement” was not even

implicated. Compare United States v. Place, 462 U.S. 696

(1983) (when police detain the possessions of individuals who

are traveling, the Fourth Amendment’s limitations on seizures

of persons and property often overlap).* And if their contractual

right to “timely delivery,” Pet.App.20a, were the only

“possessory interest” protected by the Fourth Amcndment’s

reasonable seizure limitation, this Court’s holding that a seizure

“clearly” occurred when government agents took control of the

package would be inexplicable. The Jacobsen opinion “in no

way relied on potential delay in announcing [its legal]

conclusion,” Pet.App.3 1a, and, as Judge Colioton explained, the

* The defendants in Jacobsen claimed that Drug Enforcement Agency

personnel, who had been summoned to a Federal Express facility by

employees who had noticed a suspicious “white powdery substance” while

inspecting a package that had become damaged in transit, 466 U.S. at 111,

violated their Fourth Amendment rights, by taking the box and examining its

contents — and ultimately performing a chemical test on a trace amount of the

powder — without obtaining a warrant.

The Court explained that the agents’ actions - and the Fourth

Amendment claims — should be understood as involving “two steps,” id. at

119, those relating to (1) their examination of the box and (2) the chemical

test of the powder. Although the Court held that neither step entailed a

“search” for Fourth Amendment purposes, it held that both triggered the

Fourth Amendment’s protection against unreasonable seizures.

Although respondents had entrusted possession of the items to Federal

Express, the decision by governmental authorities to exert dominion and

control over the package for their own purposes clearly constituted a

“seizure © © © ©

466 U.S. at 120 n.18; id. at 124-25 (by converting a “temporary deprivation

of possessory interests into a permanent one,” the field test as a “seizure,”

requiring independent Fourth Amendment scrutiny). The C srt concluded

that neither seizure was constitutionally “unreasonable,” finding that each

fell within a recognized class of cases in which the Fourth Amendment

perinits warrantless seizure (with probable cause), id. at 121, 125.

13

opinions in that case give every indication that there had, in

fact, been little or no delay: “only a ‘short time’ [after the

investigation] * * * the package was ‘rewrapped and Federal

Express was directed to deliver the package to the addressee

shown on the label,’” id. (citing 683 F.2d at 297 and 466 U.S.

at 111-12).

Significantly, the Eighth Circuit majority did not offer any

answer to this demonstration — and it thereby effectively

conceded (1) the conflict between the precedent of this Court

and the decisions it cited, which had iden “ied these factors as

determinative of the Fourth Amendment question — and (2)

that, to the extent its standard actually is “consistent with” the

approach adopted in those decisions, Pet.App.20a, it, too, is in

conflict with Jacobsen.

The majority instead undertook to show that Jacobsen could

be explained the basis of a third factor, “custody,” but, as the

dissent again showed, this rationale fares no better in

distinguishing the two cases.

As a matter of common sense (and common law), the

officers here surely did have “custody” of the garment bag when

they took it to a room in which no Greyhound employee was

present. But, as the dissenting judges explained (Pet.App.3 1a):

If law enforcement’s physical possession and control of Va

Lerie's luggage — in a room inside the bus terminal without

Greyhound personnel present — did not temporarily deprive

Greyhound of its custody of the luggage, then neither did

the DEA’s possession of the Federal Express package in

Jacobsen deprive the courier of its custody of the package.

Although “NSP removed Va Lerie's checked luggage from

the lower luggage compartment to a room inside the

terminal at Greyhound’s request” [Pet.App.22a], Federal

Express surely was not “deprived of custody” when the

Jacobsens’ package was “placed on a desk” in the Federal

Express office, 466 U.S. at 111, and examined by a DEA

agent, after Federal Express employees “invited the federal

14

agent to their offices for the express purpose of viewing”

the contents of the package. /d. at 119.

Nor was the Eighth Circuit correct in explaining Jacobsen

as resting on the finding that the government agents “converted

the package,” Pet.App.23a n.9, i.e., because “the DEA agents

were not going to return [it] * * * to Federal Express until after

the agents searched the package and tested the white powdery

substance.” /d. Jacobsen did not conclude, nor could it have,

that the agents converted the package — which was forwarded

(contents and all) to the defendants in short order. It held that

the field test “converted” a trace amount of defendants’ property

—- and therefore required further Fourth Amendment

justification. See 466 U.S. at 125 (holding that, under the

circumstances, probable cause, but no warrant, was

constitutionally “reasonable”).°

Far from supporting the notion that a Fourth Amendment

“seizure” is coextensive with kind of permanent deprivation

that defines the common law tort of conversion, Pet.App. 17a —

a proposition that is contradicted by almost every one of this

Court’s seizure cases, see, e.g., Terry v. Ohio, 392 U.S. 1, 19

(1968) — Jacobsen stands for the opposite rule: that the

interference entailed by government’s taking “temporary”

possession is itself sufficient to trigger the Constitution. See

466 U.S. at 124, 125; United States v. Paige, 136 F.3d 1012,

1022 (5th Cir. 1998) (holding that Jacobsen applies only to

temporary, not permanent seizures).

Finally, while this Court’s property seizure jurisprudence is

spare — and Jacobsen is its most directly controlling precedent

— that case does not stand alone in condemning a test that makes

delay in repossession the touchstone for whether a seizure

occurs. The six Justices to address the question in Segura v.

*The Nebraska police here took the bag for their own purposes — to seek

out its owner and obtain permission to search -- and the majority cited no

basis for assuming that the officers would have relinquished the bag to

Greyhound before they had accomplished that objective.

15

United States, 468 U.S. 796 (1984), recognized that the fact that

defendants were in police custody during the entire time that

police exercised “dominion and control” over their apartment,

id. at 822 (Stevens, J., d’ senting), could not mean that there

had been no seizure. Four Justices (in an opinion by the author

of Jacobsen, issued three months earlier) noted that “[t]he cases

are legion holding that a citizen retains a protected possessory

interest in his home and the effects * * * even though that

person is in custody,” id. at 826, while Chief Justice Burger and

Justice O’Connor identified the fact that the defendants would

not have been able to occupy the apartment as a factor bearing

on the seizure’s reasonableness. /d. at 813. Likewise, the

Court in Soldal (see 506 U.S. at 65) highlighted that the various

opinions in Cardwell v Lewis, 417 U.S. 583 (1974) had found

a seizure, although both the car’s owner “and the keys to his car

were already securely in police custody,” id. at 598. And while

Place involved luggage taken directly from a traveler’s

possession (rather than a common carrier), it expressly

identified the prospect that a “brief detention” of luggage might

occur after the “owner has relinquished control of the property

to a third party,” as a consideration bearing on the appropriate

standard of Fourth Amendment reasonableness — rather than

one that would defeat the Constitution’s application entirely.

See 462 U.S. at 705 (emphasis added).

II. The Decision Below Adds To The Division and

Inconsistency Among The Lower Courts

Even if the decision below had succeeded in its stated

objective of bringing clarity and coherence to that Circuit’s

Fourth Amendment seizure law, but see Part B. infra, the

problem of “decisions in the Fourth Amendment seizure area

[that] do not clearly enunciate and faithfully apply a consistent

standard” is not confined to the Eighth Circuit. Pet.App.97a

(panel dissent). The test announced below conflicts both ©

explicitly and implicitly with those of other courts of appeals

and State courts and indeed appears to be in significant tension

16

with the “line{] of authority,” id. 80a, it repeatedly declared it

was relying on. The same reasors that led the Court of

Appeals to hear this case en banc explain why the question

presented warrants this Court’s review:

It is absolutely critical that citizens and law enforcement

understand what the Fourth Amendment protects * * * *

Our court should uniformly resolve Fourth Amendment

seizure cases to help our citizens understand the freedoms

guaranteed by their Constitution. Consistent resolution of

these cases also will ensure law enforcement fulfills its

solemn duties in a constitutional manner. Although any

debate over the scope of the Seizure Clause of the Fourth

Amendment necessarily ahd rightly concentrates on the

rights of our citizens, there should be little debate that law

enforcement officers must understand what conduct the

Fourth Amendment authorizes and what conduct it

condemns.

Pet.App.88a (panel decision) (Riley, J., dissenting).

A. The Eighth Circuit’s Rule Conflicts With Decisions of

Other Courts

As the majority opinion below accurately indicates, many

of the federal courts of appeals (and a number of State appellate

courts) have expressly held that seizure of property occurs if,

and only if, delivery or travel is delayed. See, e.g., United

States v. Johnson, 990 F.2d 1129, 1132 (9th Cir.1992); Ward,

144 F.3d 1024 at 1031-32; Lovell, 849 F.2d at 916; see also

Montana v. Ochadleus 110 P.3d 448,455 (Mt. 2005)

(alternative holding that detention of property without delay

does not “constitute a seizure under the Fourth Amendment”);

Indiana v. Rios, 762 N.E.2d 153, 158 (Ind. App. 2002) (“there

is no seizure of a mailed package * * * when it is briefly

detained for further law enforcement investigatrom and its

delivery is not substantially delayed. Because there is no

seizure, the Fourth Amendment is not implicated, and law

enforcement officials need not possess ‘reasonable

17

suspicion’”’).°

But as the Supreme Court of North Dakota recently

observed, this approach has not received “universal

acceptance,” State v. Ressler, 701 N.W.2d 915 (N.D. 2005);

accord Ohio v. Knight, 679 N.E.2d 758, 760 (Ct. Comm. Pleas

1997) (acknowledging “split of federal authority on this issue”).

A number of decisions have expressly rejected the proposition

that “no seizure occurs where the government’s investigation *

* * would not delay the shipment of an individual’s package if

the test returned negative,” Ressler, 701 N.W.2d at 919, and a

much larger, and more stable, body of case law reaches results

that are irreconcilable with the test embraced below and the

reasoning on which it rests.

Ressler, a 2005 opinion of the highest court of a State

within the Eighth Circuit, examined the decisions relied on by

the en banc majority below, as well as Jacobsen, which it

described as holding that “agents ‘clearly’ seized a Federal

Express package when they took custody of the package at the

shipper’s facility and exerted dominion and control over the

package for law-enforcement purposes.” 701 N.W.2d at 920.

Noting that Jacobsen “did not find it necessary to determine

that an on-time delivery was frustrated before labeling the

government’s actions a seizure,” id., the State Supreme Court

sided with the line of Eighth Circuit authority rejected below,

explaining

We believe that the Morones and Jacobsen rationale is

sound. It seeks to recognize and validate the minimal, yet

ever-present, possessory rights an individual maintains in

shipped articles. Further, it provides some mechanism to

check what would otherwise be a nearly unrestrained power

of government to temporarily confiscate any shipped

package.

°As Judge Colloton noted, however, the federal cases cited by the

majority did not “discuss[] the Supreme Court’s analysis of the initia: seizure

in Jacobsen.” Pet.App.34a n.14.

18

Id. Accord Knight 679 N.E.2d at 761 (holding that a brief

detention of package “must be based upon reasonable,

articulable suspicion, premised on objective facts, that the

package contains contraband or evidence of a crime,”

explaining that “to require less as advocated by the state of

Ohio would confer on law enforcement officials unbridled

authority that was repugnant to the Framers of our

Constitution”).’

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

court held an envelope was unconstitutionally seized when a

police officer “took possession of it,” briefly placing it in a

locked police car — even though he returned it to Federal

Express for timely delivery. Rejecting the trial court’s holding

“that under principles of bailment law|,] Federal Express had a

right to transfer possession of the envelope to the police,” id. at

530, the court found a Fourth Amendment violation because

“the characteristics of the envelope which [the police officer]

stated caused him to seize it were not sufficient to give him

‘reasonable suspicion’ that the envelope contained narcotics,”

id. See also Illinois v. Shapiro, 687 N.E.2d 65 (Ill. 1997)

(affirming that the “reasonable articulable suspicion standard”

is “legally appropriate” in determining whether the police

lawfully “detain and investigate [a] package”). The court in

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

curiam), held that police could not seize a suitcase from an

airline conveyor belt without “reasonable suspicion,” id. at

1038, over the dissenting judge’s objection that “‘seizure of

luggage with no deleterious effect on the air traveler,’ simply

does not raise a fourth amendment issue.” /d. at 1040 (Gunther,

"In fact, Ressler held that probable cause was required under

circumstances where it appeared that there would have been no delay in

delivery — on the ground that by transporting the package from a private

shipping store to a law-enforcement facility the police had gone beyond the

kind of detention that could be supported by “reasonable suspicion.” 701

N.W.2d at 920.

19

J., concurring in part and dissenting in part) (quoting United

States v. Puglisi, 723 F.2d 779, 788 (11th Cir.1984)).*

But the instances of acknowledged disagreement are an

unrcliable indicator of the extent to which the lower courts are

applying different standards and reaching inconsistent results.

For while decisions within the Eighth Circuit have long

discussed the question as involving a disagreement over the

meaning of Jacobsen, numerous other courts have treated cases

involving seizure of property in transit as governed by Van

Leeuwen, which they have read as establishing that the Fourth

Amendment requires objective “reasonable suspicion” in order

to detain packages even briefly. See United States v. Robinson,

390 F.3d 853, 870 (6th Cir. 2004) (“reasonable suspicion * * *

is necessary in order to briefly detain a package for further

investigation, such as examination by a drug-sniffing dog”);

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

this Circuit, it is clear that a temporary detention of mail for

investigative purposes is not an unreasonable seizure when

authorities have a reasonable suspicion of criminal activity”) -

(citation omitted); United States v. Dennis, 115 F.3d 524, 532

(7th Cir. 1997) (“the issue is whether the postal inspectors had

a reasonable suspicion of criminal activity at the time they

detained the package”); see id. at 536 (Ripple, J., concurring in

‘In Colorado v. Ortega, 34 P.3d 986 (Colo. 2001), the State Supreme

Court, while noting that “moving luggage short distances * * * dofes] not

result in a seizure,” found a suitcase to have been seized when an “officer,

accompanied by Defendant, carried the suitcase back to the garage where

Defendant was * * * questioned.” The fact that the “officers’ actions in no

way delayed the departure of Defendant’s bus,” the Court held, did not place

the appellant’s claim beyond the Fourth Amendment’s concern: rather,

“under these circumstances, there was a seizure * * * because the officers’

conduct caused a ‘meaningful interference’ with Defendant’s possessory

interests in the suitcase, and the officer exercised contro] over Defendant’s

property.” /d. at 994 (que’ ng Jacobsen and citing Place); see also Virginia

v. Hurley, 548 S.E.2d 266 (Va. App. 2001) (analyzing*on-the-spot”

examination of Federal Express package for “reasonable, articulable

suspicion”).

20

part and dissenting in part) (arguing that evidence should have

been suppressed based on the absence of a “particularized and

objective basis for suspecting * * * the particular package]

stopped of criminal activity”) (citation omitted); United States

v. Banks 3 F.3d 399, 400 (11th Cir. 1993) (requiring

“{rjeasonable suspicion * * * from specific and articulable facts

and rational inferences therefrom to detain the package’’);

United States v. Aldaz, 921 F.2d 227, 229 (9th Cir.1990)

(“Postal authorities may seize and detain packages if they have

a reasonable and articulable suspicion of criminal activity”).’

A number of these decisions have been rendered by the

same courts whose opinions decisions were cited below as

embodying the uncompromising version of the “no delay, no

seizure” standard. Compare, e.g. Dennis and Robinson with

Ward, 144 F.3d 1024, and United States v. Gant, 112 F.3d 239

(6th Cir.1997) (cited at Pet.App.21a). Indeed, Robinson, after

describing its facts as “closely analogues” to those in Gant —

which it accurately characterized as holding that a detention

“did not constitute a * * * seizure,” 360 F.3d at 869 -- then

explained and applied the “analytical structure” that governs

when a package is detained: i.e., one where reasonable

suspicion is required.

The fundamental problem presented by this decisional

pattern becomes more clear in light of these courts’ (and this

Court’s, see, e.g. Place, 462 U.S. at 705 n.6) acknowledgment

that seizures of travelers’ checked luggage are of more serious

Fourth Amendment concern than seizures of mail. See, e.g.,

United States v. England, 971 F.2d 419, 420 (9th Cir. 1992) (“a

person who deposits an item in the United States mail retains

*Because the defendants in Jacobsen had conceded that the agents had

probable cause, the Court was only required to decide that, under the

circumstances, a seizure based without a warrant was constitutionally

reasonable. See 466 U.S. at 121-22 & n.20 (declining to address “whether

the agents could have seized the package based on something less than

probable cause’).

21

far less of an interest in the mailed item than does a person who

checks his luggage for transport with acommon carrier”). This

is so because addressees and senders of packages less

substantial possessory interests than do those who accompany

their property in transit; because mai! does not involve even the

“possib[ility)” (present in this case) of “disruption of * * *

travel plans,” Place, 462 U.S. at 708; and because of

differences between the U.S. Mail and to a private common

carrier, such as Greyhound. Unlike a case where a package is

“detained” by the entity to whom the sender entrusted it, cases

like this one-involve a distinct group of government actors’

taking property away from a private party for distinct, law

enforcement purposes.'°

B. The Eighth Circuit Approach Fails to Promote Clarity

In at least two respects, the Eighth Circuit’s decision adds

to, rather than diminishes, this pattern of uncertainty and

inconsistency. First, although the opinion for the en

banc majority enthusiastically endorsed decisions such as Lovell

. and Ward — and relied heavily on their reasoning, it is less clear

that its ultimate “three-factor test,” is truly “consistent with”

those decisions, Pet.App.22a, which consider only two factors,

ie., holding that “‘warrantless detention [of property] for

examination without reasonable suspicion is not a seizure * * *

if made in such a manner that neither the traveler nor his

luggage is unreasonably delayed,’” id (citing and quoting

Arizona v. Peters, 94\ P.2d 228, 232 (Ariz.1997) (en banc)).

The impetus for the court’s seeming doctrinal innovation is

plain enough — the dissent’s compelling demonstration that the

prevalent two-factor test is irreconcilable with Jacobsen — but

its significance is ambiguous. On one hand, to the extent that

'°To be sure, many of these decisions involve claims of unreasonably

long detention, as well as lack of sufficient justification to seize the package

in the first place. But almost all reject the duration-of-detention claims, and

none indicates that its review of the reasonableness of the initial detention

decision depends on the delay in delivery.

22

the Eighth Circuit would treat a shift in “custody” as a seizure

in the absence of an effect on timely delivery, the test would

seem to break from the “possessory interests” language that

supplied the organizing principle for the case law relied on

below — and the basis for those decisions’ claim of fidelity to

Jacobsen. See, e.g., Pet.App.18a (noting Ward court’s

emphasis that the defendant “‘had no cognizable interest in

repossessing his bag until the bus arrived’ at its destination’”’).

On the other hand, to the extent that the new factor requires

“interfere{nce] with the carrier’s normal processing of the

checked luggage,” id. 80a (panel dissent), it might add nothing

to the second factor: if law enforcement agents relinquish

“custody” of luggage in time for it to be placed back on a bus,

it might be said that the carrier’s “processing” has not been

“interfered with.”

Even accepting that a three-factor test could provide more

clarity than the “two different tests,” the dissent was faulted for

advocating, Pet.App. 12a, the Appeals court’s “custody vis-a-vis

the common carrier” standard is manifestly no more

“manageable,” id. 22a, than the “dominion and contro!” test this

Court articulated in Jacobsen. On the contrary, the bare fact

that five federal appellate judges disagreed with seven others

about whether the officers had “custody” on the relatively

straightforward facts of this case casts grave doubt on claims

that the new standard will aid “citizens and * * * law

enforcement officers * * * {in] understand[ing] what conduct

the Fourth Amendment authorizes and what conduct it

condemns.” Pet.App.88a.

Indeed, as the dissent showed, an ordinary citizen — even

(perhaps especially) one familiar with the law — would likely

conclude that the police officers, not Greyhound, had “custody”

of Mr. Va Lerie’s garment bag when they had “physical

possession and control of [it] * * * in a room inside the bus

terminal without Greyhound personnel present.” Pet.App.3 1a.

And, as the dissent explained, that citizen (and now Eighth

23

Circuit trial courts) would have to make sense not only of the

majority’s contrary conclusion, but also of the further assertion,

pivotal to the entire decision, that there was “custody” in

Jacobsen. Sce supra.

lll. Jacobsen Correctly Interpreted The Fourth Amendment

Even if Jacobsen did not foreclose a rule that makes delay

in repossession central to whether a seizure has been effected

— and treats law enforcement assertion of physical possession

and control over property as somehow insufficient, other

decisions of this Court, as well as the text and purposes of the

Fourth Amendment and basic common law norms show the

error of that approach.

First, law enforcement actions that entail taking physical

possession and exerting “dominion and contro!” are, as a matter

of constitutional text and common law tradition, paradigmatic

“seizures.” “From the time of the founding to the present, the

word ‘seizure’ has meant a ‘taking possession,’” California v.

Hodari D., 499 U.S. 621, 624 (1991) (internal citations

omitted). See also Pelham v. Rose, 76 U.S. 103, 106-07 (1869)

(“by the seizure of a thing is meant the taking of a thing into

possession * * * * As applied to subjects capable of manual

delivery, the term means caption; the physical taking into

custody” ); BLACK’s LAW DICTIONARY 1363 (7th ed. 1999)

(defining “seizure” as “[t]he act or an instance of taking

possession of a person or property by legal right or process’’).

As this Court’s cases have recognized, see pp. 14-15, supra,

acting affirmatively to obtain possession and control, for law

enforcement purposes, is itself “inconsistent with the [owner]’s

rights,” Pet.App.13a (quoting PROSSER & KEETON), whether

or not repossession is delayed. And “interference with

possessory interests,” instead of operating as a term of

limitation, confirms that the Amendment’s application extends

beyond the core case of physical appropriation. See //linois v.

McArthur, 531 U.S. 326, 331-32 (2001); United States v. 408

Peyton Rd., 162 F.3d 644, 649 (11th Cir. 1998) (“assertion of

24

physical control is [not] an essential] element of a seizure” and

describing Jacobsen as “employ[i \g] the term seizure * * * to

refer to governmental action that more generally deprives a

property owner of significant property interests”); Rossi v.

Town of Pelham, 35 F. Supp. 2d 66, 70 (D. N.H. 1997)

(property is seized if “‘a reasonable person would not have

believed that he or she was free to leave [with it]’”) (quoting

United States v. Allen, 644 F.2d 749, 751 n.2 (9th Cir. 1980));

cf. United States v. Letsinger, 93 F.3d 140, 144 (4th Cir. 1996)

(rejecting claim that bag was seized by show of authority, i.e.,

before “officers actually took it into their physical

possession”). ''

3 To be sure, a traveler who checks baggage temporarily

“relinquishes” immediate possession, Pet.App. 15a, but treating

such arrangements (as does the approach embraced below) as

equivalent to a temporary abandonment — i.e., entitling

government agents to appropriate the item until the time arrives

for the owner to reclaim it, see Abel v. United States, 362 U.S.

217, 241 (1960); Hester v. United States, 265 U.S. 57, 59

"As the majority opinion below acknowledged, a passenger who travels

with checked baggage plainly does not relinquish possession in the same way

that a person who mails a package does. And the facts of this case involve

an even more tangible interference. Although in many circumstances, a

passenger will not expect to be reunited with his luggage until he reaches his

fina] destination, see Pet.App.88a (panel dissent), Mr. Va Lerie was in the

same room with his bag during the Nebraska stopover. Although Greyhound

had undertaken to provide carriage al] the way to Washington, there almost

certainly was no legal barrier to Mr. Va Lerie’s walking away from the bus

with the bag — only the fact of the agents’ possession and control.

Nor, as the facts of Jacobsen indicate, is it obvious that common law

definitions of “possessory interests” determine which property interests are

protected under the Fourth Amendment. Cf. United States v. 1982 Sanger

24' Spectra Boat, 738 F.2d 1043, 1046 (9th Cir. 1984) (describing

possession as “a lesser property interest” than ownership); Mancusi v.

DeForte, 392 U.S. 364, 367-68 (1968) (the Fourth “Amendment does not

shield only those who have title to the searched premises * * * * [O}ne with

a possessory interest in the premises, might have standing”) (emphasis

added).

25

(1924) — fails to take account of the terms on which personal

property is entrusted to a common carrier.

Under basic common law principles, “the owner’s right to

exclude others from * * * using her property—perhaps the most

fundamental of all property interests,” Lingle v. Chevron

U.S.A., Inc., 125 S, Ct. 2074, 2082 (2005) — is one that is not

relinquished when baggage is checked." Contrary to the

premise of the majority opinion, the rights — and expectations

— of one who entrusts baggage to a common carrier are not

limited to “timely delivery,” Pet.App. 13a, but also include the

carrier’s duty not to use or authorize use contrary to the

purposes of the bailment. Cf. Johnson vy. Hanna, 101 N.W.2d

830, (S.D. 1960) (bailment gives rise to duties “(1) not [to] use

bailed property, or permit it to be used, for any purpose without

consent of bailor; and (2) [to] safely keep property and redeliver

it upon demand”) (citing statute); Koch Petroleum Group, L.P.

v. Alliant Energy Indus. Servs, Inc., 280 F. Supp. 2d 628, 630

(S.D. Tex. 2003) (conversion established “if a bailee does not

return the goods to the bailor on demand” or “if the bailee uses

the goods in a way inconsistent with the owner’s title”).

For similar reasons, “expectations,” to the extent they are

relevant in the seizure context, are also opposed to the Eighth

Circuit majority’s rule. While a bus passenger may have “less

possessory interest in checked luggage than he has in carry-on

luggage in his immediate possession,” Pet.App. 19a, the owner

"See Segura 468 U.S. at 826 (Stevens, J., dissenting) (“Even a person

is in Custody after an arrest * * * still * * * owns his house and his right to

exclude others-including federal narcotics agents-remains inviolate”);

Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (noting that defendant did

not claim to have retained a “right to exclude other persons from access to

[friend's] purse”); Rakas v. Illinois 439 U.S. 128, 143 n.12 (1978); see also

Stoner v. California, 376 U.S. 483, 489 (1964) (that “a person [who]

engages a hotel room * * * undoubtedly gives ‘implied or express

permission’ to ‘such persons as maids, janitors or repairmen’ to enter his

room ‘in the performance of their duties’” does not authorize hotel to admit

police) (quoting United States v. Jeffers, 342 U.S. 48, 51 (1951)).

26

of a checked bag -— unlike one who places baggage in an

overhead compartment — does not “expect[] that other

passengers * * * may move it for one reason or another,” Bond

v. United States, 529 U.S. 334, 338 (2000). Rather, he has a

legitimate expectation that no one other than the carrier and its

agents will handle it. Cf. id. at 341 (Breyer, J., dissenting)

(“Privacy * * * implies the exclusion of uninvited strangers, not

just strangers who work for the Government”). Thus, the

common law imposed a higher duty of care with respect to

checked bags then to luggage a traveler carries with her, see,

e.g., Southeastern Greyhound Lines v Berrie, 13 So.2d 696

(Aia. App.1943), treating a carrier as a “quasi-insurer,” Boston

& Maine R. Co. v. Hooker, 233 U.S. 97, 122 (1911) (Pitney, J.,

dissenting). See generally Ludington, Annotation, Liability of

Motor Carrier for Loss of Passenger’s Baggage or Packages,

68 A.L.R. 2D 1350. Cf. 18 U.S.C. § 659 (prohibiting the

“unlawful[] * * * carry[ing] away [of] any baggage which si:all

have come into the possession of any common carrier for

transportation in interstate commerce”).

Nor does the common law of torts support the Eighth

Circuit’s decision. To be sure, “the seizure standard prohibits

the government’s conversion of an individual’s private

property,” Pet. App.12a, but it does not follow that the — often

indistinct -- border between the torts of conversion and trespass

defines the reach of the Fourth Amendment. Both trespass and

conversion entail meaningful interference with possessory

interests. See 75 AM. JUR. 2D. TRESPASS §§ 4, 16 (defining

trespass to include “[t]he unlawful taking away of another’s

personal property * * * and the appropriation of another’s

property to one’s own use”). The primary distinction lies in the

measure of damages, see RESTATEMENT (SECOND) OF TORTS

§ 222A, comment c: because the “normal remedy for

conversion is payment of the full value of the converted

property,” it is reserved for interferences so complete that the

defendant “may justly be required to pay * * * the full value,”

Focal Point, Inc. vy. U-Haul Co. of Arizona, Inc., 746 P.2d 488,

27

489 (Ariz. App.1987). But among this Court’s many cases

finding seizures, such permanent appropriations surely

represent the extreme, rather than the typical, case. Compare,

e.g., Tennessee v. Garner, 471 U.S. 1, 7 (1985) with Terry v.

Ohio."

Under the Eighth Circuit’s approach, courts would examine

for Fourth Amendment reasonableness the initial basis for

government actions that take property from common carriers —

but only in instances where receipt of the property is delayed.

For example, in United States v. Hernandez, 313 F.3d 1206,

1210 (9th Cir. 2002), the court, after stating that “‘an

addressee's possessory interest is in the timely delivery of a

package,’” (quoting Demoss, 279 F.3d at 639 (Hansen J.,

concurring)), examined both whether the (seven-hour) delay

was reasonable and whether the detention was supported by

objective reasonable suspicion at its inception. Cf. United

States v. LaFrance, 879 F.2d 1, 8 (1st Cir. 1989) (stating that

“the constitutional chemistry was altered” when package did

not arrive on schedule). But a rule that makes delay in delivery

the determinant of whether the Constitution applies is not only

capricious, but at odds with the basic principle that “whether a

Fourth Amendment violation has occurred “turns on an

objective assessment of the officer’s actions in light of the facts

and circumstances confronting him at the time,” Maryland v.

"Plainly, not every “technical * * * trespass” is a seizure, Pet.App.12a

(quoting United States v. Karo, 468 U.S. 705, 712 (1984)) — but not every

trespass is a technical trespass. See So/dal, 506 U.S. at 62 (rejecting Fourth

Amendment applied only “nominally” because government action was a

“seizure only in a ‘technical’ sense”). The action at issue in Karo was

essentially the polar opposite of the paradigm “seizure” — the defendant’s

claim was that he received an object from the government that “contained an

unknown and unwanted foreign object,” id. The Court highlighted the far-

reaching implication of recognizing such a claim: “if the presence of a

beeper in the can constituted a seizure merely because of its occupation of

space, it would follow that the presence of any object, regardless of its

nature, would violate the Fourth Amendment,” id.

28

Macon, 472 U.S. 463, 469 (1985); see id. (subsequent events

should not “re*rospectively transform [lawful action] into [a]

warrantless seizure’’).

A blanket exemption for law enforcement actions that do

not result in delayed repossession is at odds with an “essential

purpose” the Fourth Amendment: “to impose a standard of

reasonableness upon the exercise of discretion by * * * law

enforcement agents.” Delaware v. Prouse, 440 U.S. 648,

653-54 (1979) (citations and internal quotation marks omitted).

Although the right to seize property no longer “depends upon

the assertion by the Government of a * * * superior [property]

interest,” Warden v. Hayden, 387 U.S. 294, 303 (1967), the

Amendment still requires that it have “constitutional grounds”

before invading protected interests for law enforcement

purposes. Terry, 392 U.S. at 32-33 (Harlan, J., concurring);

Soldal, 506 U.S. at 68 (“an officer who happens to come across

an individual’s property in a public area [may] seize it only if

Fourth Amendment standards are satisfied”).

Accordingly, when as here, “the primary purpose of

[government action] * * * is to uncover evidence of ordinary

criminal wrongdoing,” City of Indianapolis v. Edmond, 53}\

U.S. 32, 42 (2000), the usual nile is that there be “some

measure of individualized suspicion,” id at 41, and in the

infrequent instances where the Court has held detentions (or

searches) reasonable without requiring individualized suspicion,

it has emphasized the general, uniform application of the

practices at issue. See Michigan Dep't Police v. Sitz, 496 U.S.

444, 453 (1990) (distinguishing Prouse on this basis); //linois

v. Lidster, 540 U.S. 419, 425 (2004) (“an information-seeking

stop is not the kind of event that involves suspicion, or lack of

suspicion, of the relevant individual”); cf. Railway Express

Agency, Inc. v. New York, 336 U.S. 106, 112-13 (1949)

(“principles of law which officials would impose upon a

29

minority must be imposed generally”).'*

Conclusion

The petition for certiorari should be granted.

Respectfully submitted,

JAMES MARTIN DAVIS

Davis Law Offices DAVID T. GOLDBERG

1623 Farnam Street, No. 500 Counsel of Record

Omaha, NE 68102 . 99 Hudson Street, 8th FI.

(402) 341-9900 New York, N.Y. 10013

(212) 334-8813

JAMES E. RYAN

DANIEL R. ORTIZ

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903

Counsel for Petitioner

FEBRUARY 2006

This distinction supplies one of the principal rationales for decisions

upholding the “Federal Government's practice of requiring the search of all

passengers seeking to board commercial airliners, as well as the search of

their carry-on luggage, without any basis for suspecting any particular

passenger of an untoward motive.” N7EU vy. Von Raab, 489 U.S. 656, 675

n. 3 (1989).

Courts have noted two other features, both of which are entirely absent

from cases like this one. First, such searches — and seizures — have a specific

air safety rationale — not a general law enforcement purpose. See United

States v. Allman, 336 F.3d 555, 557 (7th Cir. 2003) (“Airline passengers

and their luggage are searched on embarking, not arriving”); United States

v. Goldstein, 635 F.2d 356, 361 (5th Cir. Unit B 1981) (ordinary Fourth

Amendment principles govern when airport security concerns are not

implicated). Second, airline passengers are well aware — and expressly

advised before traveling — that items of property taken on an airplane are

subject to thorough government inspection.

APPENDIX

la

United States Court of Appeals for the Eighth Circuit

UNITED STATES of America, Appeilant,

v.

Keith A. VA LERIE, Appellee.

No. 03-3394.

Submitted: April 12, 2005.

Filed: Oct. 3, 2005.

RILEY, Circuit Judge.

Keith Va Lerie (Va Lerie) was charged with possession with

intent to distribute 500 grams or more of cocaine, in violation

- of 21 U.S.C. § 841(a)(1) and (b)(1), after members of the

Nebraska State Patrol (NSP) discovered cocaine inside Va

Lerie’s checked luggage at a Greyhound bus station. The

district court granted Va Lerie’s motion to suppress evidence,

including the cocaine, concluding (1) the NSP unlawfully

seized Va Lerie’s checked luggage by removing it from the bus

and to a room of the bus terminal to seek Va Lerie’s consent to

search the luggage; and (2) Va Lerie’s apparent consent to a

search of his luggage did not remove the taint of the unlawful

seizure. This appeal primarily asks whether the NSP’s removal

of Va Lerie’s checked luggage from the bus’s lower luggage

compartment to a room inside the bus terminal to seek Va

Lerie’s consent to search the luggage constituted a Fourth

Amendment seizure. Reversing the district court’s seizure

decision, we held such conduct did not constitute a seizure,

because the removal of the luggage did not (1) delay Va Lerie’s

travel or significantly impact Va Lerie’s freedom of movement,

(2) delay the timely delivery of the checked luggage, or (3)

deprive Greyhound of its custody of the checked luggage. This

appeal secondarily asks whether Va Lerie voluntarily consented

to a search of his luggage. We conclude he did. Therefore, we

reverse the district court’s decision granting Va Lerie’s motion

to suppress, vacate its suppression order, and remand for

proceedings consistent with this opinion.

I. BACKGROUND

2a

On December 23, 2002, Va Lerie was traveling on a

Greyhound bus from Los Angeles, California, to Washington,

D.C., when the bus stopped around noon for refueling at the

Greyhound station in Omaha, Nebraska. During refueling and

cleaning, Greyhound required its passengers to get off the bus

and wait inside the bus terminal. NSP Investigator Alan Eberle

(Investigator Eberle) was performing drug interdiction duties at

the Greyhound station when Va Lerie’s bus stopped for

refueling. During the refueling, Investigator Eberle looked

inside the bus’s lower luggage compartments, and he found a

newer piece of luggage displaying a baggage ticket with Va

Lerie’s name, but no telephone number or passenger name tag.

When Investigator Eberle went to the rear baggage terminal to

run a computer check of the luggage’s claim number, he

discovered the passenger had paid cash on the day of travel for

a one-way ticket to Washington, D.C. Investigator Eberle asked

a fellow law enforcement officer to remove the luggage from

the bus and take it to a room inside the rear baggage terminal.

Law enforcement removed the luggage from the bus and took

it to the rear baggage terminal to seck the passenger’s

permission to search the luggage, as opposed to bringing the

passenger to the bus in the refueling area, because “Greyhound

does not want to have passengers walking over by the refueling

area.” Even though law enforcement took the luggage to the

rear baggage terminal, Investigator Eberle testified the luggage

“was not in our custody[, but] was still in Greyhound’s

custody.”

Investigator Eberle then paged Va Lerie, who approached

the ticket counter. Investigator Eberle, wearing jeans, a t-shirt

and a winter coat, displayed his badge, identified himself as a

law enforcement officer, and informed Va Leric he was not in

trouble or under arrest. After Va Lerie agreed to speak with

Investigator Eberle, Va Lerie displayed his bus ticket and

identification, which matched the information on the luggage

which had been removed from the bus. Va Lerie then agreed to

follow Investigator Eberle to a room in the rear baggage

3a

terminal where Va Lerie’s luggage was being held. The room

had two open doors, and one or two other officers were already

inside the room. Va Lerie confirmed the luggage belonged to

him. Investigator Eberle then declared he was a narcotics

investigator who was watching for people who might be

transporting illegal drugs. When Investigator Eberle sought

permission to search the luggage, Va Lerie made an affirmative

verbal response to the request for consent to the search. After

Va Lerie verbally consented to a search of his luggage, another

officer took approximately one minute to execute the search.

During the search, Va Lerie never objected, but he claimed the

luggage actually belonged to a friend. Law enforcement

discovered five vacuum-sealed bags containing cocaine inside

Va Lerie’s luggage.

Va Lerie was charged with possession with intent to

distribute 500 grams or more of cocaine. 21 U.S.C. §

841(a)(1)-(b)(1). In two separate motions, Va Lerie moved to

suppress the evidence discovered from the December 23 search,

arguing the search violated the Fourth Amendment because (1)

the search was conducted without a search warrant, and (2) Va

Lerie did not knowingly, intelligently, and voluntarily consent

to the search.' Nothing in Va Lerie’s motions claimed his

luggage had been unlawfully seized when the luggage was

removed from the luggage compartment to the rear baggage

terminal.

At the beginning of the suppression hearing in front of a

magistrate judge, Va Lerie’s attorney stated, “With respect to

{the motions to suppress}, Judge, very simple. Question of

consent, no consent. Bus stop.” The government agreed “[t]he

issue on the search is simply whether ... consent exists or

doesn’t exist.” During the suppression hearing, Va Lerie’s

attorney implied, for the first time, he also was arguing an

'Va Lerie also moved to suppress statements he made on December 23.

The district ccurt suppressed those statements, and they are not an issue in

this appeal.

4a

unconstitutional seizure occurred. At that point, the magistrate

judge informed Va Lerie’s attorney his suppression “motion

deals with a search of the bag and probably not the seizure of

the bag.” Va Lerie’s attorney replied, “That’s not the input. It’s

a Fourth Amendment violation. I’m not restricting it to-he

never consented to that being-that bag being seized and

searched.” At that point, the magistrate judge allowed Va Lerie

to expand his motion to suppress to include an unconstitutional

seizure argument.

With the seizure issue before the court, the magistrate judge

repeatedly asked Va Lerie’s attorney to explain how “the

relocation of the garment bag” from the lower luggage

compartment to a room inside the terminal, in compliance with

Greyhound’s request not to take passengers to the refueling

area, constituted a seizure under the Fourth Amendment. Va

Lerie failed to provide the judge with authority supporting his

position. The government then asked the judge to force Va

Lerie “to establish some case law that I could respond to that

somehow makes this removal of the bag from the bus in the

cleaning area to the baggage room to present it to its owner is

a constitutional violation.” Va Lerie’s attorney failed to

respond to the government’s plea for authority to support the

seizure contention. The magistrate judge then gave the parties

opportunities to file post-hearing briefs, which only the

government filed. Noting Va Lerie did not file a brief and never

cited a single authority supporting his seizure position, the

government noted it did not know of any authority supporting

Va Lerie’s seizure argument. Thus, the government focused its

argument on the consent-to-search issue. Nonetheless, the

government maintained “there is no constitutional issue in the

officers removing the bag from the bus in the cleaning area to

the baggage room which procedure was the one Greyhound, the

bailee of the bag, had asked the officers to follow.”

The magistrate judge determined the removal of Va Lerie’s

luggage to a room inside the rear baggage terminal was not an

Sa

unreasonable seizure under the Fourth Amendment because (1 )

Investigator Eberle had “the requisite level of reasonable

articulable suspicion in order to briefly detain the bag,” and (2)

“the removal of the bag was done in accordance to an

understanding between Greyhound and the NSP to prevent

passengers from walking into the refueling area.” After judging

the credibility of both Va Lerie and Investigator Eberle, the

magistrate judge concluded Va Lerie voluntarily consented to

the search of his luggage. In support of this conclusion, the

magistrate judge found (”) Va Lerie, a 37-year-old with three

years of college educatio 1, verbally consented to the search; (2)

Va Lerie understood Ir vestigator Eberle’s questions; (3) Va

Lerie was not impairec: (4) Investigator Eberle displayed his

badge, explained he was a narcotics officer, informed Va Lerie

he was not in trouble or under arrest, asked Va Lerie to follow

him to the rear baggage terminal, and asked Va Lerie for

consent to search his luggage; (5) the search occurred in aroom

with two open doors in the presence of two to four officers;

and (6) no evidence showed Va Lerie was under coercion or

duress during his encounter with law enforcement. Based on

findings that law enforcement had reasonable articulable

suspicion to detain Va Lerie’s luggage and Va Lerie voluntarily

consented to the search of his luggage, the magistrate judge

recommended the district court deny Va Lerie’s motion to

suppress the evidence obtained as a result of the search of the

luggage.

Va _ Lerie objected to the magistrate judge’s

recommendations that (1) the seizure of Va Lerie’s luggage was

reasonable, and (2) Va Lerie consented to the search. The

government filed no objections to the magistrate judge’s

recommendation that Va Lerie’s motion to suppress evidence

be denied.”

Not relevant to this appeal, the government objected to the magistrate

judge’s recommendation that Va Lerie’s suppressed statements could not be

used at trial for impeachment purposes. Overruling the government's

objections, the district court suppressed Va Lerie’s statements. The

6a

Without holding another hearing, the district court

considered Va Lerie’s objections to the magistrate judge’s

report and recommendation. Addressing the seizure issue, the

district court concluded “the removal of [Va Lerie’s checked

luggage] and its sequestration in a room of the bus terminal

constituted an unconstitutional seizure in violation of [Va

Lerie]’s Fourth Amendment rights because they occurred

without consent, reasonable suspicion, probable cause, or a

warrant.”

After concluding law enforcement unconstitutionally seized

Va Lerie’s checked luggage, the district court then considered

“whether [Va Lerie]’s alleged consent to the search of the bag

removed the taint of the unlawful seizure.” In addressing this

issue, the district court asked whether Va Lerie’s consent was

voluntarily given, and, if so, whether the “consent to the search

was an independent act of free will that broke the causal chain

between the unconstitutional violation and the consent.”

Regarding the voluntariness of Va Lerie’s consent to the

search of his luggage, the district court noted Va Lerie was a

sober adult of normal intelligence; Va Lerie voluntarily

responded to Investigator Eberle’s page; Va Lerie acquiesced in

Investigator Eberle’s request to accompany him to a room with

two open doors in the rear baggage terminal where at least two

other officers were waiting with Va Lerie’s luggage;

Investigator Eberle testified Va Lerie consented; Va Lerie’s

“own testimony indicates that he did not object to the search”;

investigator Eberle was not in uniform and did not display his

weapon; and no law enforcement officer directly threatened or

coerced Va Lerie. Based on these findings, the district court,

however, concluded Va Lerie did not voluntarily consent to the

search, because “there is no reason to believe [Va Lerie] or

anyone else-even most lawyers-would know that they could

refuse the request to search the bag.” Furthermore, the district

court noted Va Lerie “was alone, in a private room, with at Jeast

government has not appealed that decision.

7a

two armed police officers,” and the officers already had Va

Lerie’s luggage when they asked for consent to search it.

The district court then considered whether Va Lerie’s

apparent consent purged the unlawful taint of the

unconstitutional seizure. In considering this question, the

district court noted little time had passed and no significant

intervening events had occurred between the unlawful seizure

and Va Lerie’s apparent consent. The district court concluded

the law enforcement officers’ purpose in removing the luggage

was to obtain incriminating evidence, and their accommodation

of Greyhounds request not to bring passengers to the refueling

area, a policy of Greyhound for over a ‘/ear, was irrelevant.

Thus, the district court determined Va Lerie’s “apparent

acquiescence [in the search] did not remove the taint of the

illegal seizure.” Based upon this reasoning, the court held “the

evidence obtained in the search after the illegal seizure is ‘fruit

from a poisonous tree.’” Sustaining Va Lerie’s objections to

the magistrate judge’s report and recommendation, the district

court granted Va Levie’s motion to suppress.

Acting with the approval of the United States Sc.icitor

General, the government timely filed this appeal. The

government’s main contention is the NSP’s removal of Va

Lerie’s checked luggage from the bus’s luggage compartment

to the rear baggage terminal to seek permission to search does

not constitute a seizure under the Fourth Amendment, “because

there was no meaningful interference with [Va Lerie]’s

possessory interest in the [luggage] on the part of the

investigating officers.” Depending on this court’s resolution of

the seizure issue, the government also contends the district

court should have adopted the magistrate judge’s

recommendation that Va Lerie consented to the search of his

luggage.

A divided panel of this court affirmed the district court’s

suppression of the evidence obtained as a result of the search of

Va Lerie’s luggage. United States v. Va Lerie, 385 F.3d 1141,

8a

1150 (8th Cir.2004). In reaching this conclusion, the panel

majority held Va Lerie’s luggage “was seized within the

meaning of the Fourth Amendment when [Investigator] Eberle

had the bag removed from the bus, taken to a room inside the

rear baggage terminal, and detained while the officer

endeavored to locate the bag’s owner and obtain consent to

search the bag.” /d. at 1148. Because the government

conditioned its consent argument on prevailing with its seizure

argument, the panel held the government “waived the argument

that [Va Lerie]’s consent purged the taint of the illegal seizure

if an illegal seizure occurred.” Jd. at 1148-49. Thus, the panel

never considered “whether the district court clearly erred in its

findings concerning the voluntariness of defendant’s alleged

consent.” /d. at 1150. Two panel members urged the en banc

court to “re-visit the issue of what constitutes a seizure in the

context of a temporary removal and inspection of packages and

luggage that have been sent or checked with common carriers.”

Id. at 1151 (Melloy, J., concurring); id. (Riley, J., dissenting).

The en banc court vacated the panel’s opinion and granted

rehearing en banc.

II. DISCUSSION

A. Standard of Review

In considering the district court’s suppression of evidence,

we review the district court’s conclusions of law de novo and

its factual findings for clear error. United States v. Barry, 394

F.3d 1070, 1074 (8th Cir.2005). We will affirm the district

court’s order granting Va Lerie’s “motion to suppress ‘unless

the decision is unsupported by substantial evidence, is based on

an erroneous view of the applicable iaw, or in light of the entire

record, we are left with a firm and definite conviction that a

mistake has been made.’ “ /d. (quoting United States v.

Welerford, 356 F.3d 932, 935 (8th Cir.2004) (citation omitted)).

Because a seizure decision involves a pure question of law, we

review de novo the district court’s holding that the removal of

Va Lerie’s luggage from the bus censtituted a seizure in

9a

violation of the Fourth Amendment. See United States v. Smith,

260 F.3d 922, 924 (8th Cir.2001). We review for clear error the

district court’s factual finding that Va Lerie did not voluntarily

consent to the search. Welerford, 356 F.3d at 935.

B. Seizure

Our federal Constitution mandates “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shal! not be violated.” U.S.

Const. amend. IV; see United States v. Ameling, 328 F.3d 443,

447 (8th Cir.2003) (Fourth Amendment applies to states

through the Fourteenth Amendment). It can be argued our court

has not spoken with a consistent voice when considering what

constitutes a seizure in cases involving law enforcement’s

interference with luggage or mailed packages.’ No matter the

merits of that argument, we recognize a_ principled

interpretation, and consistent application, of the Seizure Clause

of the Fourth Amendment, as explained by the Supreme Court

of the United States, is vital to the protection of civil liberties

3Compare United States v. Gomez, 312 F.3d 920, 923-24 (8th Cir.2002)

(finding “minimal interference with Gomez’s possessory interest” and

holding no seizure occurred when a drug interdiction officer at a U.S. Postal

Service facility moved a package to a command center twenty yards from a

conveyor belt in a sorting area), United States v. Vasquez, 213 F.3d 425, 426

(8th Cir.2000) (holding no seizure occurred when drug interdiction officers

at a Federal Express facility examined the outside of a package and

subjected the package to a drug-sniffing dog), United States v. Harvey, 961

F.2d 1361, 1363-64 (8th Cir. } 992) (holding no seizure occurred when police

removed luggage from a bus’s overhead luggage compartment to the aisle

below to subject the luggage to a drug-sniffing dog), and United States v.

Riley, 927 F.2d 1045, 1048 n. 4 (8th Cir.1991) (implying no seizure

occurred when police subjected an airline passenger's checked luggage to a

drug-sniffing dog), with United States v. Morones, 355 F.3d 1108, 1111 (8th

Cir.2004) (holding seizure occurred when a law enforcement officer at a

Federal Express facility removed a package from a conveyor belt to subject

the package to a drug-sniffing dog), and United States v. Demoss, 279 F.3d

632, 636 (8th Cir.2002) (same). To the extent these decisions are

inconsistent with this opinion, they are no longer controlling precedent in

this circuit.

10a

and also to law enforcement’s ability to conduct itself in a

constitutional manner in the modern era where law

enforcement’s duties safeguarding commercial transportation,

whether by air, land or sea, have never been more solemn. To

that end, we strive to speak with a clear voice when discussing

the scope of the Seizure Clause.

The Fourth Amendment protects against both unreasonable

searches and unreasonable seizures. U.S. Const. amend. IV.

Not surprisingly, the Supreme Court has secognized the Search

Clause is wholly distinct from the Seizure Clause, such that

courts applying these clauses must understand they provide

different protections against government conduct. See Segura

v. United States, 468 U.S. 796, 806, 104 S.Ct. 3380, 82 L-Ed.2d

599 (1984) ( “Different interests are implicated by a seizure

than by a search.”). According to the Supreme Court, a Fourth

Amendment search “occurs when an expectation of privacy that

society is prepared to consider reasonable is infringed.” United

States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80

L.Ed.2d 85 (1984). On the other hand, a Fourth Amendment

seizure of property “occurs when there is some meaningful

interference with an individual’s possessory interests in that

property.” Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652. While

the Search Clause protects an individual’s expectation of

privacy, the Supreme Court has indicated the Seizure Clause

relates, in part, to freedom of movement: “While the concept

of a ‘seizure’ of property is not much discussed in our cases,

this definition follows from our oft-repeated definition of the

*We are not dealing with a search issue; we are confronted with a

seizure issue. We also underscore this is not a seizure case involving

luggage physically possessed by a commercial bus passenger. See United

States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)

(recognizing detention of luggage within passenger’s immediate possession

intrudes on passenger’s freedom of movement, such that the passenger’s

travel plans may be disrupted); cf Hale v. Henkel, 201 U.S. 43, 76, 26

S.Ct. 370, 50 L.Ed. 652 (1906) (noting “a seizure contemplates a forcible

dispossession of the owner”). Instead, Va Lerie’s seizure case involves

checked luggage not in the passenger's immediate possession.

lla

‘seizure’ of a person within the meaning of the Fourth

Amendment-meaningful interference, however brief, with an

individual’s freedom of movement.” /d. at 113 n. 5, 104 S.Ct.

1652; see also Skinner v. Ry. Labor Executives’ Ass’n, 489

U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“The

initial detention necessary to procure [ ] evidence may be a

seizure of the person if the detention amounts to a meaningful

interference with his freedom of movement. Obtaining and

examining the evidence may also be @ search if doing so

infringes an expectation of privacy that society is prepared to

recognize as reasonable.”) (citations omitted). The Court also

has stated “not every governmental interference with an

individual’s freedom of movement raises such constitutional

concerns that there is a seizure of the person.” Skinner, 489

U.S. at 618, 109 S.Ct. 1402. It necessarily follows that not

every governmental interference with a person’s property

constitutes a seizure of that property under the Constitution.

After announcing a seizure of property “occurs when there

is some meaningful interference with an individual’s possessory

interests in that property,” the Court concluded in Jacobsen that

law enforcement’s exertion of dominion and control over

private property for its own purposes constituted a scizure in

that case. Thus, the facts of Jacobsen shed some light on how

to apply the Supreme Court’s seizure standard. In Jacobsen,

Federal Express employees noticed a white powdery substance

inside a damaged package, which prompted the employees to

contact the Drug Enforcement Administration (DEA). When a

DEA agent arrived and was told about the white powdery

substance, he opened the damaged package, removed four

plastic bags from a tube inside the package, removed traces of

the white substance from the plastic bags, and field tested the

white substance. The field tests revealed the white substance

was cocaine. Other DEA agents also field tested the white

substance. When determining whether the agents unlawfully

seized and searched the package, the Court concluded the DEA

“agents’ assertion of dominion and control over the package

12a

and its contents did constitute a ‘seizure.’ “ /d. at 120, 104

S.Ct. 1652. After recognizing “the Magistrate and the District

Court found that the agents took custody of the package from

Federal Express after they arrived” even though the package’s

owners “had entrusted possession of the items to Fedcral

Express,” the Court held “the decision by governmental

authorities to exert dominion and control over the package for

their own purposes clearly constituted a ‘seizure.’ “ /d. n. 18,

104 S.Ct. 1652. Notwithstanding the Court’s seizure decision,

the Court concluded the seizure was not unreasonable because

the agents had probable cause to believe the package contained

contraband. /d. at 121-22, 104 S.Ct. 1652.

We do not believe the Court meant to express two different

standards-i.e., meaningful interference with a person’s

possessory interests and dominion and control-when instructing

courts how to apply Fourth Amendment seizure principles.

Instead, we believe the Court referenced dominion and control

when applying the scizure standard. That is, we believe the

Court concluded law enforcement’s exertion of dominion and

control over the package for its own purposes-and in

contravention to’ Federal Express’s custody of the

package-constituted a seizure under the Fourth Amendment

because it constituted some meaningful interference with a

person’s possessory interests. Thus, the seizure standard

prohibits the government’s conversion of an individual’s

private property, as opposed to the mere technical trespass to an

individual’s private property. See, e.g., United States v. Karo,

468 U.S. 705, 712-13, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)

(explaining the existence of a mere technical physical trespass

to an individual’s property “is only marginally relevant to the

question of whether the Fourth Amendment has been violated,”

as “[a] ‘seizure’ of property occurs when ‘there is some

meaningful interference with an individual’s possessory

interests in that property’ “) (quoting Jacobsen, 466 U.S. at 113,

104 S.Ct. 1652); Jacobsen, 466 US. at 124-25, 104S.Ct. 1652

(stating “the field test [of the white substance] did affect

13a

respondents’ possessory interests protected by the [Fourth]

Amendment, since by destroying a quantity of the powder it

converted what had been only a temporary deprivation of

possessory interests into a permanent one”); W. Page Keeton,

et al., Prosser and Keeton on The Law of Torts § 15 at 92, 102

(Sth ed.1984) (recognizing the tort of conversion differs from

the tort of trespass in that conversion requires “an intent to

exercise a dominion or control over the goods which is in fact

inconsistent with the [owner]’s rights,” and noting “[t}he gist of

conversion is the interference with control of the [owner’s]

property”). Because we do not believe Jacobsen enunciated

separate standards for seizure cases, we will not concern

ourselves with trying to apply “both” standards. Instead, we

will focus on whether the NSP’s conduct constituted some

meaningful interference with Va Lerie’s possessory interests in

his checked luggage.

Armed with the Supreme Court’s enunciation of Fourth

Amendment seizure principles, we ask whether law

enforcement’s removal of a commercial bus passenger’s

checked luggage from the bus’s lower luggage compartment to

a room inside the bus terminal to seek the passenger’s consent

to search the luggage constitutes some meaningful interference

with the passenger’s possessory interests in his luggage.

Seizure issues involving checked luggage are hardly new for

circuit courts. A number of circuit court decisions addressing

seizure issues similar to this case support our holding the NSP

did not seize Va Lerie’s checked luggage, because the removal

of the luggage did not delay his travel or significantly impact

his freedom of movement, affect the timely delivery of the

checked luggage, or deprive Greyhound of its custody of the

checked luggage. Nearly two decades ago, the Fifth Circuit

confronted a similar case. In United States v. Lovell, 849 F.2d

910 (Sth Cir.1988), border patrol agents saw a nervous airline

passenger check his luggage. The agents then went to the

airline baggage area, removed the passenger’s checked luggage

14a

from the baggage conveyor belt, and compressed the sides of

the luggage several times. When compressing the sides of the

luggage, the agents smelled marijuana. The agents then

subjected the detained luggage to a drug-sniffing dog, which

alerted to the luggage. Based on this information, the agents

obtained a search warrant, searched the luggage, and discovered

sixty-eight pounds of marijuana. /d. at 911. After being

charged with possession with intent to distribute, the defendant

moved to suppress the marijuana, claiming “the agents’

removal of his luggage from the conveyor belt and their

manipulation and sniff of that luggage constituted a seizure and

search within the meaning of the fourth amendment.” /d. at 912.

The district court denied the motion to suppress, and the Fifth

Circuit affirmed, holding the agents did not seize the

defendant’s luggage. /d. at 916.

In considering whether the agents’ conduct constituted

some meaningful interference with the defendant’s possessory

interests in his checked luggage, i.e., whether a seizure had

occurred, the Fifth Circuit focused on the defendant’s freedom

of movement and his expectation of timely delivery of his

checked luggage. See id. The court quoted Jacobsen and

distinguished Place, noting the defendant “had surrendered his

bags to a third-party common carrier with the expectation that

the carrier would transport the bags to [the defendant]’s

destination for him to reclaim when he arrived” and the

defendant’s travel would not “have been interfered with or his

expectations with respect to his luggage frustrated” had the

agents not smelled marijuana. /d. Thus, the court held “[t]he

momentary delay occasioned by the bags’ removal from the

conveyor belt was insufficient to constitute a meaningful

interference with [the defendant]’s possessory interest in his

bags.” /d.

The Ninth Circuit later adopted the Fifth Circuit’s approach

in Lovell in a case similar to the one we confront today. In

United States v. Brown, 884 F.2d 1309 (9th Cir.1989), the

lSa

defendant, who appeared to be nervous, checked his new

luggage after paying cash for a one-way airline ticket. Based on

this information, law enforcement agents had the defendant’s

checked luggage “held.” /d. at 1310. The agents then asked the

defendant if they could speak with him, informed him he was

not under arrest and that he was free to leave, and asked if they

could search his carry-on luggage as well as his checked

luggage. The defendant consented to a search of both his

carry-on and checked luggage. Because the checked luggage

was locked, the agents asked the defendant for the keys to the

luggage. Even though the defendant claimed he did not have

the keys to the luggage, he produced a set of luggage keys.

When the defendant refused to accompany the agents when they

took the keys to try them on the checked luggage, the agents

handcuffed the defendant pending the search. The search of the

checked luggage produced two kilograms of cocaine. /d. at

1310-11. The defendant moved to suppress the cocaine,

contending the detectives violated the Fourth Amendment by

stopping him and holding his checked luggage.

After holding the agents’ initial contact with the defendant

did not constitute a seizure, the court addressed an issue of first

impression for that circuit: “whether the brief diversion of [the

defendant]’s suitcases from their journey to the cargo hold was

a seizure,” i.e., whether the detention of the defendant’s

checked luggage was a meaningful interference with the

defendant’s possessory interest in his luggage. /d. at 1311. The

court first acknowledged the Place distinction the Fifth Circuit

drew in Lovell “between taking property from a traveler’s

custody and merely detaining bags which the traveler has

already relinquished to a third-party common carrier.” /d. The

court then noted that, had the defendant not consented to a

search of his luggage, “the brief detention of [the defendant]’s

bags would have in no way interfered with his travel or

frustrated his expectations with respect to his luggage.” /d.

Thus, the court held the agents’ detention of the defendant’s

luggage in the cargo hold area of the terminal did not constitute

l6a

a Fourth Amendment seizure.’ Jd

A few years after Brown, the Ninth Circuit again addressed

a seizure case in the context of checked luggage. In United

States v. Johnson, 990 F.2d 1129 (9th Cir.1993), an airline

passenger, who purchased a one-way ticket with cash, checked

in late such that his checked luggage could not be placed on the

same flight, but was scheduled to be placed on the next flight

leaving two hours after the passenger’s flight. Without

interfering with the passenger in any way, law enforcement

officers received permission from the airline to go onto the

tarmac to investigate the checked luggage. When the officers

asked an airline representative if they could take the luggage

inside the terminal, the airline representative allowed the

officers to take the luggage «0 an airline office inside the

terminal, “but refused to relinquish custody of the luggage to

the Drug Enforcement Agency (DEA) office at the airport.” Jd.

at 1130. The airline representative later “allowed the officers,

with the airline representative present, to take the luggage to the

DEA office” inside the airport. /d at 1130-31. However,

“(t]he airline maintained custody of the luggage at all times.”

Id. at 1131. After the luggage was taken to the DEA office, a

drug-sniffing dog was called to the scene, at which time the

luggage was taken into a hallway for the dog-sniff. When the

dog alerted to the luggage, the officers seized the bags, obtained

a search warrant, searched the luggage, and discovered 2.9

kilograms of cocaine base. Applying Brown, the Ninth Circuit

held no Fourth Amendment seizure occurred before the dog

sniff. Jd. at 1132-33. The court explained its rationale for

determining no seizure occurred:

Here [the passenger]’s only interest was that the airlinc, as

his bailee, would place his luggage on the next plane, which

was to leave about two hours after his plane. The entire

process of removing the luggage from the cart, taking it

>We note the court also held “{tJhe district court properly found [the

defendant] consented to the search” of his luggage. /d. at 1311-12.

17a

from one office to the other, and having the dog sniff it, was

completed prior to the time the luggage would have been

placed on the airplane. The airline did not give up custody

of the luggage to the narcotics officers until after the dog

had indicated the presence of narcotics.... Because nothing

that the officers did interfered with the [passenger]’s

possessory interests in his luggage prior to the dog sniffing,

there was no seizure of the luggage.

Id. at 1132.

The Seventh Circuit specifically has considered the

consequences of police interference with luggage checked with

Greyhound. In United States v. Ward, 144 F.3d 1024 (7th

Cir.1998), the defendant in Los Angeles checked his luggage

with Greyhound, which placed the luggage in the bus’s luggage

compartment accessible only from the outside. The defendant

did not board the bus, but instead flew to the bus’s destination

in Indianapolis to await the bus and claim his luggage. When

the bus stopped for a passenger meal break in Springfield,

Missouri, drug enforcement officers looked inside the luggage

compartment and noticed a suspicious piece of luggage. When

no passenger claimed ownership of the suspicious piece of

luggage, an officer removed the luggage to subject it to a

dog-sniff. After the bus left the station, the officers subjected

the detained luggage to the dog-sniff, and the dog alerted to the

luggage. Once a search warrant was obtained, an officer

searched the luggage and discovered a kilogram of cocaine and

a semi-automatic handgun loaded with hollow-point bullets.

Officers later apprehended the defendant as he attempted to

claim his luggage in Indianapolis. /d. at 1028.

Confronted with the question of whether the drug

enforcement officers violated the Fourth Amendment by

removing the checked luggage from the bus’s luggage

compartment, the Seventh Circuit focused on the defendant's

possessory interests in his luggage. /d. at 1030-34. Initially, the

court noted the defendant “had no cognizable interest in

18a

repossessing his bag until the bus arrived” at its destination. /d.

at 1031. The court explained that the defendant, by

“surrender[ing] custody of the bag to Greyhound ... could

reasonably have foreseen that the bag would be handled, moved

around, and even taken off the bus, whether at intermediate

stops when the driver might need to remove the bag to sort

and/or gain access to other luggage, or at a hub like St. Louis

where the bag would have been transferred to another bus.” Jd.

at 1032. The court concluded the defendant “could have no

reasonable expectation, in other words, that the bag would not

be touched, handled, or even removed from the bus prior to the

bag’s arrival” at its destination. /d. Because the defendant had

few possessory interests in his checked luggage, and because he

should have expected his luggage would have been handled by

strangers, the court held the officers “did not ‘seize’ [the

defendant]’s bag merely by touching and then removing it from

the luggage compartment. Handling the bag to that limited

extent did not impinge on any of the rights that the Fourth

Amendment protects.” /d. at 1033. Focusing on the

defendant’s expectations of timely regaining possession of his

luggage from Greyhound, the court noted the officers’

interference with the luggage would have constituted a seizure

only when it “interrupted the bag’s transport” and “interfer[ed]

with {the defendant]’s contractually-based expectation that he

would regain possession of the bag at a particular time.”® /d.

In reviewing the Supreme Court’s enunciation of Fourth

Amendment seizure principles, as well as the approaches taken

by the Fifth, Seventh and Ninth Circuits in applying Fourth

Amendment seizure principles to checked luggage cases, we

make a few observations of our own. Because seizure is

defined as some meaningful interference with an individual’s

°The Seventh Circuit also recognized the critical difference between

removing luggage from a passenger’s immediate possession and removing

iuggage checked with Greyhound and placed in a luggage compartment with

other luggage. See id. at 1032 (citing and distinguishing Place, 462 U.S. at

708-09, 103 S.Ct. 2637).

19a

possessory interests in his property, not all police interference

with an individual’s property constitutes a Fourth Amendment

seizure, i.e., the police do not seize property every time they

handle private property. By requiring some meaningful

interference with an individual’s possessory interests in

property, the Supreme Court inevitably contemplated excluding

inconsequential interference with an individual’s possessory

interests. We also readily recognize the Supreme Court

instructed courts to consider an individual’s possessory interests

in his property in determining whether a seizure has occurred.

Applying the Supreme Court’s definition of seizure with an

eye toward the applications provided by the Fifth, Seventh and

Ninth Circuits over the past seventeen years, we glean a number

of principles that relate to checked luggage cases. First, the

Fourth Amendment’s Seizure Clause prohibits the government

from restraining an individual’s freedom of movement. Thus,

if law enforcement’s detention of checked luggage delays a

passenger’s travel or significantly impacts the passenger’s

freedom of movement, the Seizure Clause is implicated.

Second, a commercial bus passenger has less possessory

interest in checked luggage than he has in carry-on luggage in

his immediate possession. To be certain, a passenger gives up

his immediate possessory interest when he checks his luggage

with the commercial carrier as bailee. At a minimum, the

passenger’s possessory interests in his checked luggage entail

the right (or at least the expectation) to regain custody, i.c.,

reclaim immediate possession of the checked luggage at the

passenger’s or the luggage’s destination. Finally, acommercial

bus passenger who checks his luggage should reasonably expect

his luggage to endure a fair amount of handling-if his luggage

were not handled, it would not reach its destination. For

instance, a commercial bus passenger’s checked luggage must

be sorted, loaded, rearranged, possibly transferred to another

bus, and unloaded. The luggage may be damaged and require

removal from the luggage compartment. If a bus breaks down,

a passenger should expect his luggage to be removed from the

20a

luggage compartment and either transferred to another bus or

taken inside the bus terminal. As long as law enforcement

officers do not deprive the commercial carrier of its custody of

the checked luggage, no meaningful interference with the

passenger’s checked luggage occurs.

Boiling these principles down, we believe courts must focus

on three factors when considering whether law cnforcement’s

interference with checked luggage constitutes a seizure. First,

did law enforcement’s detention of the checked luggage delay

a passenger’s travel or significantly impact the passenger’s

freedom of movement? Second, did law enforcement’s

detention of the checked Juggage delay its timely delivery?

Third, did law enforcement’s detention of the checked luggage

deprive the carrier of its custody of the checked luggage?’ If

none of these factors is satisfied, then no Fourth Amendment

seizure has occurred. Conversely, if even a single factor is

satisfied, then a Fourth Amendment seizure has occurred.

Our holding is consistent with the holdings of other courts

that have confronted seizure issues involving checked luggage.

See, ¢.x., State v. Peters, 189 Ariz. 216, 941 P.2d 228, 232

(Ariz. 1997) (en banc) (holding the “warrantless detention [of

checked luggage at an airport] for examination without

reasonable suspicion is not a seizure and is permissible if made

in such a manner that neither the traveler nor his luggage is

unreasonably delayed”)*; State v. Goodley, 381 So.2d 1180,

’To test the breadth of the carrier’s custodial rights, we ask whether the

government’s actions go beyond the scope of the passenger’s reasonable

expectations for how the passenger’s luggage might be handled when in the

carrier’s custody. See, e.g., Ward, 144 F.3d at 1032.

< iting “modern conditions,” the Arizona Supreme Court stated, “Today

police, airport security personnel, and travelers must all be concerned not

only that drugs may be transported but that explosives, incendiary devices,

and other items that threaten the safety of those on the airplane may be

stored in luggage in the airplane’s baggage compartment. Travelers today

expect and want luggage X-rayed, sniffed, felt, and handled in a manner that

is as non-intrusive as possible but consistent with ensuring that the checked

luggage does not contain items that threaten their safety. Brief, non-intrusive

2la

1182 (Fla.Dist.Ct.App.1980) (“It is obvious that {an airline]

traveler who checks his luggage has no knowledge: and, in fact,

no real concern as to precisely where his bag r ay be located

within the airline’s custody at any given time. It ollows that the

slight movement [by law enforcement] of [the defendant]’s

unopened bag from the [baggage] cart to the floor [about a foot

away so a drug dog could conduct a sniff search] ... did not,

even remotely, amount to a fourth amendment seizure ....””): cf.

United States v. Gant, 112 F.3d 239, 240, 242 (6th Cir.1997)

(holding police officers’ removal of luggage from an overhead

compartment of a Greyhound bus to subject the luggage to a

drug-sniffing dog did not constitute a seizure under the Fourth

Amendment).

Our holding also comports with the views expressed by

many judges in this circuit. See, e.g, Va Lerie, 385 F.3d at

1150 (Melloy, J., concurring) (opining “that a brief detention of

a piece of luggage that does not result in the delay of either the

passenger, or ultimate delivery of the luggage, is not a

seizure”); Gomez, 312 F.3d at 923-24 (Bowman, J., with

Hansen and Bye, JJ.) (holding no seizure occurred when a drug

interdiction officer at a post office moved a package to a

command center twenty yards from a conveyor belt in a sorting

area); Demoss, 279 F.3d at 640 (Hansen, J., concurring)

(choosing “to cast my lot with those cases both from this and

other circuits indicating that a piece of luggage ... delivered to

a common carrier is not ‘seized’ within the meaning of the

Fourth Amendment until the authorities have interfered with a

possessory interest in the luggage ... such that the expectation

of timely delivery of the ... luggage has been frustrated”);

Vasquez, 213 F.3d at 426 (Fagg, J., with Wollman and Murphy,

JJ.) (holding no seizure occurred when drug interdiction

officers at a Federal Express facility subjected a package to a

detention of checked luggage for such examination no longer invades the

traveler’s reasonable expectation of privacy, does not unduly interfere with

possessory rights, and is not a seizure under the Fourth Amendment.” /d. at

231.

22a

drug-sniffing dog); Riley, 927 F.2d at 1048 n. 4 (Gibson, John

R., J., with Magill and Beam, JJ.) (implying no seizure occurred

when police subjected an airline passenger’s checked luggage

to a drug-sniffing dog); cf Harvey, 961 F.2d at 1363-64 (per

curiam with Wollman and Hansen, JJ., and Lay, J., dissenting)

(holding police officers’ removal of luggage from a bus’s

overhead luggage compartment to subject the luggage to a

drug-sniffing dog during a refueling stop did not constitute a

Fourth Amendment seizure).

Having announced what we hope are manageable factors to

consider when confronted with seizure cases involving checked

luggage, we now apply those factors to this case. First, the

NSP’s brief and temporary removal of Va Lerie’s checked

luggage from the luggage compartment to ask Va Lerie to

consent to a search did not delay Va Lerie’s travel or impact his

freedom of movement. Va Lerie’s travel was delayed, and his

freedom of movement impacted, only after the NSP searched

the luggage and discovered a large amount of illegal drugs.

Second, the NSP’s removal of Va Lerie’s checked luggage from

the bus did not affect the timely delivery of the luggage. No

evidence suggests the luggage would not have been placed back

on the bus for transport to its destination had it not been for the

discovery of illegal drugs. Finally, Va Lerie’s possessory

interests in his checked luggage certainly included an

expectation that Greyhound-or others at Greyhound’s

request-would remove the luggage from the lower luggage

compartment. The NSP would have preferred to bring Va Lerie

to the bus in the refueling area to seek permission to search, but

Greyhound asked the NSP not to bring passengers to that area.

Thus, the NSP removed Va Lerie’s checked luggage from the

lower luggage compartment to a room inside the terminal at

Greyhound’s request. In doing so, the NSP never deprived

Greyhound of its custody of Va Lerie’s checked luggage.’ We

*Had the NSP exerted dominion and control over Va Lerie’s luggage

such that it deprived Greyhound of its custody of the luggage, then a seizure

23a

conclude the NSP’s removal of Va Lerie’s checked luggage

from the bus to a room inside the terminal to seek consent to

search did not constitute a meaningful interference with Va

Lerie’s possessory interests in his luggage. Therefore, no

Fourth Amendment seizure occurred.'°

C. Consent to Search

Contingent upon our reversal of the district court’s seizure

decision, the government asks us to reverse the district court’s

finding Va Lerie did not voluntarily consent to the search of his

luggage. Because we reverse the district court on the seizure

issue, we must examine the district court’s consent decision. If

Va Lerie voluntarily consented to the search of his luggage,

then no Fourth Amendment violation occurred in this case. See

Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041,

36 L.Ed.2d 854 (1973); United States v. Brown, 345 F.3d 574,

579 (8th Cir.2003).

In determining whether Va Lerie voluntarily consented to a

search of his luggage, we must consider the totality of the

would have occurred. That is what happened in Jacobsen. Federal Express

employees notified the DEA that a damaged package contained a white

powdery substance. When the DEA agents arrived to search the package

and test the white powdery substance, they took custody of the package by

exerting dominion and control over it for their own purposes, i.e., they

converted the package. The DEA agents were not going to return the

package to Federal Express until after the agents searched the package and

tested the white powdery substance. Here, the NSP never deprived

Greyhound of custody of the checked luggage, at least not until Va Lerie

consented to a search that unveiled cocaine. Indeed, the NSP adopted the

policy of removing the luggage from the bus to present to the owner to seek

consent to search at Greyhound’s prompting. We see little, if any,

distinction between the NSP’s removal of the luggage to present it to Va

Lerie to seek consent to search and the NSP simply asking Va Lerie to

consent to a search.

'°The Fourth Amendment prohibits unreasonable seizures. Because the

government does not argue the NSP’s conduct was reasonable and because

we hold the removal of the luggage from the bus to seek Va Lerie’s consent

to search did not Constitute a seizure, we do not address the reasonableness

of the NSP’s conduct.

24a

circumstances surrounding the alleged consent, paying

particular attention to the following factors:

personal characteristics of the defendant, such as age,

education, intelligence, sobriety, and experience with the

law; and features of the context in which the consent was

given, such as the length of detention or questioning, the

substance of any discussion between the defendant and

police preceding the consent, whether the defendant was

free to leave or was subject to restraint, and whether the

defendant’s contemporaneous reaction to the search was

consistent with consent.

United States v. Jones, 254 F.3d 692, 696 (8th Cir.2001). After

listening to the testimony of Investigator Eberle and Va Lerie,

as well as viewing their actual testimony to make credibility

determinations, the magistrate judge found Va Lerie voluntarily

consented to the search of his luggage. Without the benefit of

viewing Investigator Eberle and Va Lerie as they testified, the

district court conducted a de novo review of the record. After

reviewing the record, the district court rejected the magistrate

judge’s recommended finding that Va Lerie voluntarily

consented to the search of his luggage.

Based on our review of the record and the district court’s

findings, we conclude the district court erred in rejecting the

magistrate judge’s recommended finding that Va Lerie

voluntarily consented to the search of his luggage. The

following factual findings strongly support a finding Va Lerie

voluntarily consented to the search: (1) Va Lerie is 37 years

old, has three years of college education, and enjoys normal

intelligence; (2) Va Lerie voluntarily responded to Investigator

Eberle’s page; (3) Investigator Eberle displayed his badge,

explained he was a narcotics officer, informed Va Lerie he was

not in trouble or under arrest, and asked Va Lerie to follow him

to the rear baggage terminal; (4) Va Lerie acquiesced in

Investigator Eberle’s request to accompany him to a room with

two open doors in the rear baggage terminal where one or two

25a

other officers were waiting with Va Lerie’s luggage: (5)

Investigator Eberle asked Va Lerie for consent to search his

luggage; (6) Va Lerie verbally consented to the search,

according to Investigator Eberle; (7) Va Lerie understood

Investigator Eberle’s questions; (8) Va Lerie was sober and not

impaired; (9) Va Lerie’s “own testimony indicates that he did

not object to the search”; (10) Investigator Eberle was not in

uniform and did not display his weapon; and (11) no law

enforcement officer threatened or coerced Va Lerie.

The only findings the district court mentioned to support its

no-consent decision were (1) the district court’s statement

“there is no reason to believe [Va Lerie] or anyone else-even

most lawyers-would know that they could refuse the request to

search the bag”; (2) the officers did not give Va Lerie any

Miranda warnings; (3) Va Lerie “was alone, in a private room,

with at least two armed police officers”; and (4) the officers

already had Va Lerie’s luggage when they asked for consent to

search it.

Given the numerous facts supporting a finding of voluntary

consent, we reject the district court’s finding that Va Lerie did

not voluniarily consent to the search of his luggage. First, the

district court surmised anyone, including attorneys, would not

have known they had the right to refuse to consent to the search

of the luggage, and noted the officers failed to give Va Lerie

any Miranda warnings. The Supreme “Court has rejected in

specific terms the suggestion that police officers must always

inform citizens of their right to refuse when seeking permission

to conduct a warrantless consent search.” United States v.

Drayton, 536 U.S. 194, 206, 122 S.Ct. 2105, 153 L.Ed.2d 242

(2002). Although Investigator Eberle did not specifically warn

Va Lerie of the pitfalls of consenting to a search of his luggage

containing five vacuum-sealed packages of cocaine,

Investigator Eberle did seek permission to search the luggage,

which implied Va Leric could refuse permission and, therefore,

supports a finding of voluntary consent. See id. at 207, 122

26a

S.Ct. 2105. We also recognize the record does not suggest Va

Lerie did not know he had the right to refuse to search; instead,

the record reflects Va Lerie expressly consented to the search

and never objected to the search.''

Second, we are not persuaded that two or three officers

being armed with holstered firearms in a private room inside a

bus terminal negates Va Lerie’s consent. /d. at 205, 122 S.Ct.

2105 (“That most law enforcement officers are armed is a fact

well known to the public. The presence of a holstered firearm

thus is unlikely to contribute to the coerciveness of the

encounter absent active brandishing of the weapon.”). Taken

in context with the totality of the circumstances, these findings

do not overcome the district court’s other findings, both explicit

and implicit, that “[t]here was no application of force, no

intimidating movement, no overwhelming show of force, no

brandishing of weapons, no blocking of exits, no threat, no

command, not even an authoritative tone of voice.” /d. at 204,

122 S.Ct. 2105.

Finally, we give little weight in this case to the officers’

presenting Va Lerie’s checked luggage to him when requesting

permission to search, because this evidence does not transform

the consensual encounter between the NSP and a bus passenger

into a coercive encounter. Given our holding that the NSP was

not constitutionally forbidden to remove the checked luggage

from the bus to present the luggage to Va Lerie to seek consent

to search, we would be hard-pressed to conclude such a

presentation would be any different than simply asking Va Lerie

') If the district court’s unsubstantiated observation that most lawyers

do not know the police have no right to search luggage without probable

cause or consent is correct, we would be sadly disappointed. The Supreme

Court teaches, “In a society based on law, the concept of agreement and

consent should be given a weight and dignity of its own. Police officers act

in full accord with the law when they ask citizens for consent. It reinforces

the rule of law for the citizen to advise the police of his or her wishes and for

the police to act in reliance on that understanding. When this exchange takes

place, it dispels inferences of coercion.” /d.

27a

for permission to search his checked luggage. See, e.g., Brown,

884 F.2d at 1311-12 (holding airline passenger voluntarily

consented to a search of his checked luggage).

Accordingly, we reverse the district court’s erroneous

consent determination, because Va Lerie’s consent to search his

luggage was voluntary.

[iI. CONCLUSION

For the foregoing reasons, we reverse the district court’s

decision granting Va Lerie’s motion to suppress, vacate the

court’s suppression order, and remand for further proceedings

consistent with this opinion.

WOLLMAN, Circuit Judge, concurring.

With the exception of footnotes 8, 9, and 11, which I view

as unnecessary to the resolution of the issues before us, I concur

in the court’s opinion.

COLLOTON, Circuit Judge, with whom McMILLIAN,

MORRIS SHEPPARD ARNOLD, BYE and SMITH, Circuit

Judges, join, dissenting.

I believe the court’s holding conflicts with the Supreme

Court’s decision in United States v. Jacobsen, 466 U.S. 109,

104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). I therefore respectfully

dissent.

The question presented in this appeal is whether Nebraska

State Police investigators effected a “seizure” of Keith Va

Lerie’s luggage, within the meaning of the Fourth Amendment,

when they took physical possession of his garment bag and

carried it from the Greyhound bus on which Va Lerie was

traveling to a room in the bus terminal, for the purpose of

summoning Va Lerie and seeking his consent to search the bag

as part of their investigation of suspected drug trafficking.

Although the magistrate judge recommended denying Va

Lerie’s motion to suppress on the ground that investigators had

“reasonable suspicion” to seize the bag, the government has

28a

abandoned that argument on appeal, and does not otherwise

argue that a seizure of the luggage was “reasonable.” See Brief

of Appellant at 5 (“[T]he United States does not advance the

proposition that there was reasonable suspicion to remove the

garment bag from the area where the bus was being refueled to

the office in the bus terminal itself. Rather, the United States

argues that that activity does not constitute a seizure for

constitutional purposes.”) (emphasis in original); cf United

States v. Van Leeuwen, 397 U.S. 249, 252-53, 90 S.Ct. 1029, 25

L.Ed.2d 282 (1970). Nor does the government contend that Va

Lerie’s alleged consent to search the luggage was an

independent act of free will that purged the taint of any

unconstitutional seizure. See United States v. Va Lerie, 385

F.3d 1141, 1149-50 (8th Cir.2004); id. at 1150 (Melloy, J.,

concurring) (“The government made the tactical decision to

challenge the district court decision solely on the grounds that

the district court was wrong in its ruling that a seizure

occurred.”). The critical question before us, therefore, is

whether the luggage was “seized,” and Jacobsen dictates that

the answer is yes.

Jacobsen involved a Federal Express package en route to

the residence of Bradley and Donna Jacobsen in Apple Valley,

Minnesota. See United States v. Jacobsen, 683 F.2d 296,

297-98 (8th Cir.1982). The package was damaged by a forklift

at the Minneapolis-St. Paul airport Federal Express office,

prompting Federal Express employees to examine the contents.

When they discovered a white powder inside the package,

Federal Express personnel notified the Drug Enforcement

Administration, and agents traveled to the airport to investigate.

Federal Express employees invited an agent to examine the

contents of the package, 466 U.S. at 119, 121, 104 S.Ct. 1652,

and after the box was placed on a desk in the Federal Express

office, the agent proceeded to reopen the package and conduct

a “field test” on the white powder. /d. at 111-12, 104 S.Ct.

1652.

29a

In discussing whether the DEA agents made an initial

“seizure” of the package before conducting the field test, the

Court first made the general statement that “[a] ‘seizure’ of

property occurs when there is some meaningful interference

with an individual’s possessory interests in that property.” /d.

at 113, 104S.Ct. 1652. In applying that standard to the facts of

Jacobsen, the Court concluded that “the agents’ assertion of

dominion and control over the package and its contents did

constitute a ‘seizure.’ “ /d. at 120, 104S.Ct. 1652. The Court

explained that although the Jacobsens “entrusted possession of

the items to Federal Express, the decision by governmental

authorities to exert dominion and control over the package for

their own purposes clearly constituted a ‘seizure,’ though not

necessarily an unreasonable one.” /d. at 120 n. 18, 104 S.Ct.

1652. This holding is consistent with the Court’s later

observation that “[f]rom the time of the founding to the present,

the word ‘seizure’ has meant a ‘taking possession,’ “ and that

“(flor most purposes at common law, the word connoted ...

bringing [an object] within physical control.” California v.

Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690

(1991) (internal citations omitted).

There is no viable distinction between this case and

Jacobsen on the question whether governmental authorities

effected a seizure. Although Va Lerie entrusted possession of

his luggage to Greyhound, NSP investigators exerted dominion

and control over the luggage for their own purposes. That is,

they identified the luggage for investigation, took physical

possession and control of the garment bag at the bus, and

moved it to anon-public room in the bus station, where three or

four investigators were present. United States v. Va Lerie, No.

8:03CR23, 2003 WL 21956437, at *1, 4 (D.Neb. Aug.14,

2003); United States v. Valerie, 2003 WL 21953948, at *1

(D.Neb. June 10, 2003) (report and recommendation). They did

so for the purpose of furthering their law enforcement

investigation of potential drug trafficking by summoning Va

Lerie and seeking his consent to search the luggage. Valerie,

30a

2003 WL 21956437, at *1. According to Jacobsen, therefore,

this action by the NSP investigators constituted a seizure. 466

U.S. at 120 n. 18, 104 S.Ct. 1652.

Jacobsen cannot be distinguished on the ground that the

DEA agents destroyed a quantity of the white powder in the

Federal Express package by conducting a field test. Cf ante, at

13 (citing Jacobsen, 466 U.S. at 124-25, 104S8.Ct. 1652, for the

proposition that “the field test did affect respondents’

possessory interests”). The Court was clear that an “initial

‘seizure’ “ involving a “temporary deprivation of possessory

interests,” 466 U.S. at 124-25, 104 S.Ct. 1652, took place when

agents made “the decision ... to exert dominion and control over

the package for their own purposes,” id. at 120 n. 18, 104 S.Ct.

1652, not when an agent destroyed some of the powder. The

Court separately analyzed the significance of the field test,

concluding that it reasonably “converted what had been only a

temporary deprivation of possessory interests into a permanent

one.” /d. at 124-25, 104 S.Ct. 1652. Nor did the occurrence of

the initial seizure in Jacobsen depend on the fact that agents

intended “‘to search the package.” Cf ante, at 22 n. 9. Jacobsen

did not involve a Fourth Amendment “search” at all, 466 U.S.

at 120, 124, 104 S.Ct. 1652, and the Court subsequently relied

on Jacobsen when it held unanimously that “seizures of

property are subject to Fourth Amendinent scrutiny even though

no search within the meaning of the Amendment has taken

place.” Soldal v. Cook County, 506 U.S. 56, 68, 113 S.Ct. 538,

121 L.Ed.2d 450 (1992).

Under the test applied by the court today, the initial seizure

in Jacobsen would not be a seizure. First, the initial seizure of

the Federal Express package of course did not delay any travel

by the Jacobsens or impact their freedom of movement.

Second, there is no reason to believe the “temporary

deprivation” occasioned by the “decision ... to exert dominion

and control over the package” delayed the delivery of the

Jacobsens’ package, and the Court in no way relied on potential

3la

delay in announcing its conclusion. In fact, after only a “short

time” at the Federal Express office (including further

investigation beyond the initial seizure), the package was

“rewrapped and Federal Express was directed to deliver the

package to the addressee shown on the label.” 683 F.2d at 297;

see also 466 U.S. at 111-12, 104 S.Ct. 1652.

And third, if law enforcement’s physical possession and

control of Va Lerie’s luggage--in a room inside the bus terminal

without Greyhound personnel present--did not temporarily

deprive Greyhound of its custody of the luggage, then neither

did the DEA’s possession of the Federal Express package in

Jacobsen deprive the courier of its custody of the package. The

majority says the NSP “never deprived Greyhound of its

custody” of the garment bag, because “NSP removed Va Lerie’s

checked luggage from the lower luggage compartment to a

room inside the terminal at Greyhound’s request.” Ante, at 22.

By that reasoning, Federal Express surely was not “deprived of

custody” when the Jacobsens’ package was “placed on a desk”

in the Federal Express office, 466 U.S. at 111, 104 S.Ct. 1652,

and examined by a DEA agent, after Federal Express employees

“invited the federal agent to their offices for the express

purpose of viewing” the contents of the package. /d. at 119,

104 S.Ct. 1652." And if the NSP did not exceed Va Lerie’s

'2The better view, in my judgment, is that the DEA agents in Jacobsen

and the NSP investigators in this case took “custody” of the package and

luggage, respectively, when they took physical possession and control of the

containers for the purpose of investigating their contents. See Black’s Law

Dictionary 390 (7th ed.1999) (defining “custody” as “the care and control

ofa thing ... for inspection, preservation, or security”); ante, at 19 (equating

“custody” with “immediate possession’’), The subjective belief or assertion

of an NSP investigator that Va Lerie’s bag “was not in our custody,” ante,

at 3, certainly is not dispositive, and the district court made no finding that

the investigators’ physical possession and control of the luggage for

investigative purposes did not amount to “custody” of the luggage. Rather,

the district court found that the NSP investigators “removed,” “detained,”

“seized,” “sequestered,” and exerted “thorough ‘dominion and control’ “

over the garment bag. Va Lerie, 2003 WL 21956437, at * 2, 4, 8. Cf

32a

“reasonable expectations for how the passenger’s luggage might

be handled,” ante, at 20 n. 7, (despite no apparent evidence that

Greyhound itself typically moved checked luggage from the bus

to rooms inside the termina! during intermediate stops), then the

DEA agents who effected the “initial seizure” of the Jacobsens’

package (prior to the field test) certainly did not exceed

reasonable expectations about handling of the package by the

private carrier when they merely replicated what Federal

Express itself already had done. 466 U.S. at 119-20, 104 S.Ct.

1652. Thus, the court’s three-factor test, as applied, conflicts

with Jacobsen.

Although the court asserts that its new test comports with

the views of many judges in this circuit, ante, at 21-22, none of

our prior holdings dictates the conclusion reached today.'? To

be sure, our court has recognized that not every interference

with a person’s property constitutes a “seizure” under the

Fourth Amendment, because some interferences are not

“meaningful.” E.g., United States v. Gomez, 312 F.3d at 923.

But in arriving at its holding, the court is forced to overrule or

distinguish without cxplanation several decisions--rendered by

some of the same judges cited by the majority-- recognizing that

Jacobsen, 466 U.S. at 120 n. 18, 104 S.Ct. 1652 (noting district court found

that agents “took custody” of package, and holding that exertion of

“dominion and control” over package constituted a seizure). In any event,

under either approach to the issue of “custody,” there is no perceptible

distinction between this case and Jacobsen.

'>The only holdings said to be on point are United States v. Gomez, 312

F.3d 920, 923-24 (8th Cir.2002), and United States v. Vasquez, 213 F.3d

425, 426 (8th Cir.2000). Gomez itself, however, stated that a seizure does

occur when, as here, an officer exerts dominion and control over an object

“ty deciding to go beyond a superficial inspection of the exterior of the

packages and to detain the packages for further inquiry into characteristics

that could not be observed by merely holding the package.” 312 F.3d at 923

n. 2 (citing Jacobsen, 466 U.S. at }21 n. 18, 104 S.Ct. 1652). Vasquez is

distinguishable, because it held that there was no seizure where officers did

not take possession of packages at a sorting station, but merely brought a

narcotics dog to sniff the packages as a Federal Express driver “continued

to load the accumulated parcels unimpeded.” 213 F.3d at 426.

33a

law enforcement’s exercise of dominion and control over an

Object entrusted to a bailee, for the purpose of conducting

investigation beyond an observation of the object’s exterior,

does constitute a “seizure” under Jacobsen. See ante, at 9 n. 3.

Most recently, in United States v. Morones, 355 F.3d 1108

(8th Cir.2004), we held that a deputy’s removal of a FedEx

package from an outbound conveyor belt for the purpose of

subjecting the package to a canine sniff was a “meaningful

interference” with “possessory interests” under Jacobsen,

despite the government’s assertion that no evidence showed that

the brief detention of the package would have delayed its

delivery. /d. at 1111. This holding followed ineluctably from

Jacobsen, which even analogized the field test for which the

package was detained to a “sniff test” by a trained narcotics

dog. 466 U.S. at 123-24, 104 S.Ct. 1652. We previously

reached the same conclusion in at least two other cases. United

States v. Walker, 324 F.3d 1032, 1036 (8th Cir.2003) (“It is

clear under our precedent that when [the agent] moved the

package to a separate room for a canine sniff, the package was

seized for Fourth Amendment purposes.”); United States v.

Demoss, 279 F.3d 632, 636 (8th Cir.2002) (“As Meyer moved

the package away from the conveyor belt and detained the

package for a canine sniff, he ‘exert[ed] dominion and control

over the package,’ that is, the package was seized for Fourth

Amendment purposes.”) (citing Jacobsen, 466 U.S. at 121 n.

18, 104 S.Ct. 1652); see also Gomez, 312 F.3d at 923 n. 2;

United States v. Fuller, 374 F.3d 617, 621 (8th Cir.2004).

The three-judge panel that first heard this case

acknowledged that Va Lerie’s case is indistinguishable from

Morones, Walker, and Demoss. Va Lerie, 385 F.3d at 1147-48;

id. at 1150 (Melloy, J., concurring); see also id. at 1151-52

(Riley, J., dissenting) (declining to follow Morones, Walker,

and Demoss ). The court today suggests no distinction. These

precedents represent a faithful application of Jacobsen, and we

34a

should follow them here."*

The Supreme Court did not regard the initial seizure in

Jacobsen as a close question: The DEA’s possession and

control of the package “clearly constituted a ‘seizure.’ “ 466

U.S. at 120 n. 18, 104 S.Ct. 1652 (emphasis added). This

although the Jacobsens were merely intended recipients who

had never actually possessed the package, the initial seizure

would have occasioned no delay in delivery, and the package

was examined by a government agent at the invitation of

Federal Express, in the office of the private carrier, in the same

manner that Federal Express previously had examined it.

Jacobsen must be our guiding light. Absent a revision of

doctrine by the Supreme Court, the NSP investigators effected

a “seizure” of Va Lerie’s bag, and the order of the district court

should be affirmed.

“The four decisions from other circuits cited by the court do not

provide persuasive support for the conclusion that there was no seizure of Va

Lerie’s luggage under the rule of Jacobsen. None of the cited opinions even

discussed the Supreme Court's analysis of the initial seizure in Jacobsen. In

the Ninth Circuit decisions, moreover, the private airlines--unlike Greyhound

here--did not give up possession and control of the passenger’s property until

after a dog had indicated the presence of narcotics or the passenger had

consented to a search. United States v. Johnson, 990 F.2d 1129, 1130-31

(9th Cir. 1993) (explaining that an airline representative was present with

officers at all times, and a the, airline refused to relinquish custody of

luggage to DEA); United Sraies v. Brown, 884 F.2d 1309, 1310 (9th

Cir.1989) (explaining that agents “arranged to have Brown's [checked]

luggage held” until he granted consent). And the Seventh Circuit in United

States v. Ward, 144 F.3d 1024 (7th Cir. 1998), held only that an agent did not

“seize” a bag “merely by touching it and then removing it from the lugsage

compartment” of a bus, and that a seizure did occur when the agent s

decision to hold the bag for canine inspection interrupted the bag’s transport.

Id. at 1033. The court rendered no decision on a situation like Va Lerie’s,

where agents took possession and control of luggage for the purpose of

seeking consent to search, or a case like Morones, where agents exerted

dominion and contro] over a package in order to conduct a canine sniff,

without delaying the transport of the package.

35a

United States District Court,D. Nebraska.

UNITED STATES OF AMERICA, Plaintiff,

v.

Keith A. VA LERIE, Defendant.

No. 8:03CR23.

Aug. 14, 2003.

MEMORANDUM AND ORDER

BATAILLON, J.

Introduction

Before me are the objections of both the government and

the defendant, Filing Nos. 20 and 22, to Magistrate Judge

Thalken’s report and recommendation, Filing No. 19. The

defendant contends that Magistrate Judge Thalken erred in

finding that 1) the seizure of the defendant’s garment bag was

reasonable, and 2) the defendant consented to the search of the

bag. The government objects to Magistrate Judge Thalken’s

conclusion that the defendant’s statements were involuntary and

hence may not be used for impeachment purposes at trial.

I have conducted a careful de novo review of the record

pursuant to 28 U.S.C. § 636(b)(1)(A) and NELR 72.3(d),

including the transcript of the suppression hearing, Filing No.

17 (hereafter, TR). I find that the defendant’s objections should

be sustained. I also find that the government’s objection should

be overruled.

Background

The magistrate judge’s statement of the events leading to

the defendant’s arrest is detailed and accurate, so I need not

engage in a lengthy recitation of the facts. Briefly, on December

22, 2002, Nebraska State Patrol Investigator Eberle and other

36a

officers were engaged in interdiction duties at the Greyhound

Bus station in Omaha. As Eberle examined the luggage stowed

in a compartment under a bus from Los Angeles that had

stopped in Omaha for refueling, he observed a newer black

garment bag with a Greyhound baggage ticket indicating that

the bag had been put on the bus in Los Angeles and was headed

to Washington, D.C. The baggage ticket had no phone number,

nor did the bag have a handwritten name tag.

Inside the terminal, Eberle had the claim number on the

baggage ticket checked on Greyhound’s computer system. The

name associated with the bag was “Valerie Keith.” Eberle

learned that a one-way ticket had been purchased on the same

day of travel. These factors suggested to Eberle that the bag

might contain contraband. He therefore directed NSP officers

to remove the bag from the bus and to bring it inside to the rear

baggage terminal. Officers then paged both “Valerie Keith” and

“Keith Va Lerie” over the intercom.

The defendant came to the ticket counter. Eberle testified

that he identified himself, explained to the defendant that he

was not under arrest or in trouble, and asked if the defendant

would speak with him. The defendant agreed to speak to Eberle

and gave Eberle his identification card and ticket when Eberle

asked for them. Eberle returned them, then asked the defendant

to accompany him to the rear baggage terminal. The defendant

followed Eberle to the room, where two or three other officers,

including Omaha Police Investigator Lutter, were waiting with

the garment bag.

Eberle testified that when asked, the defendant admitted that

the garment bag belonged to him. Eberle told the defendant he

was investigating contraband being transported on buses from

Los Angeles to the East Coast and asked the defendant for

consent to search the garment bag. Eberle testified that the

defendant consented. Investigator Lutter then searched the

garment bag and found five vacuum-sealed bags of cocaine.

During the search, the defendant allegedly told Eberle that the

37a

bag belonged to a friend.

The officers arrested the defendant. Eberle later gave the

defendant his Miranda rights at a Nebraska State Patrol office

using a Nebraska State Patrol advice of rights form. Eberle then

asked the defendant to waive his rights and to allow Eberle to

interview him. The defendant refused to sign the form and

asked for an attorney. Eberle told the defendant he wanted to

find out where and to whom the cocaine was headed so law

enforcement could prepare to intercept the intended recipient.

He also told the defendant that he likely would be federally

prosecuted and that possible consequences would ensue. The

defendant told Eberle he was concerned for his safety and still

wanted an attorney. Investigator Lutter told the defendant that

in his experience, no informant or cooperating witness had ever

been injured as a result of cooperating. The defendant again

expressed his fear of the people he was dealing with and again

requested an attorney.

At the suppression hearing, the government conceded that

the defendant’s statements made during the interview could not

be used in the case-in-chief, but asked that the statements be

allowed for impeachment purposes.

Legal Analysis

A. Seizure of the Garment Bag

The magistrate judge found that the officers’ removal of the

defendant’s garment bag to the rear baggage terminal was not

unreasonable. The magistrate judge observed that while the

defendant may ha’ e had “a reasonable expectation that the bag

would not be turned over to police investigators and subjected

to a search [ ], there is no legitimate expectation that

characteristics on the outside of the bag would not be observed

by law-enforcement investigators.” Filing No. 19, Report and

Recommendation at 6. The defendant contends that the removal

of the bag was an unjustifiable seizure because |) the defendant

was not party to any understanding between interdiction officers

and Greyhound that officers would remove baggage from the

38a

refueling area before questioning passengers about the baggage,

and 2) in any event, the interdiction officers did not have

articulable suspicions that criminal activity was afoot.

The Fourth Amendment of the Constitution forbids the

seizure of personal property absent probable cause or at least

reasonable suspicion. United States v. Place, 462 U.S. 696, 701

(1983). A seizure of property occurs when there is some

“meaningful interference with an individual’s possessory

interests in that property.” United States v. Jacobson, 466 U.S.

109, 113 (1984); United States v. Demoss, 279 F.3d 632, 635

(8th Cir.2002). The question here, of course, is whether a

seizure occurred and, if so, when.

Based on the facts before me, I can only conclude, for the

reasons discussed below, that a seizure occurred when the

officers removed the defendant’s garment bag from the bus and

toak it inside the terminal. Since the officers at that point did

not have probable cause, and only arguably had reasonable

suspicion, the seizure was unlawful. Passengers on a bus-unlike

airline passengers-stil] retain some expectation of privacy in

their baggage that the court is required to protect. I therefore

find that this seizure and the subsequent search were

unconstitutional invasions of the defendant’s Fourth

Amendment rights.

The Eighth Circuit has ruled that travelers have “a privacy

interest in the contents of their personalluggage that is protected

by the Fourth Amendment.” United States v. Gwinn, 191 F.3d

874, 878 (8th Cir.1999) (emphasis added) (finding that an

interdiction officer’s “calculated and thoroveh squeezing and

manipulation” of the exterior of a bag on 2 train’s overhead

baggage rack was an unreasonable search). To establish a

legitimate expectation of privacy, a traveler must demonstrate

that he or she had a subjective expectation of privacy and that

the subjective expectation of privacy is one that society is

prepared to recognize as objectively reasonable.’ United States

'Based on the national security measures introduced following the

39a

v. Mohammed, 58 F.3d 353, 355 (8th Cir.1995).

A traveler’s privacy interest in personal luggage or other

personal property does not necessarily extend to the exterior of

the pieces, however, particularly when the traveler turns over

control of luggage or personal property to a third party such as

a common carrier. In Demoss, for example, the Eighth Circuit

held that an officer did not seize a Federal Express package

when he briefly lifted it from an airport conveyor beli, since

once a sender relinquishes possession of personal property to a

third party, the sender can no longer expect that the property

“would not be handled or that physical attributes would not or

could not be observed,” especially by law enforcement officials.

Demoss, 279 F.2d at 635. Likewise, a traveler placing luggage

or other personal property in a bus or train’s overhead storage

compartment shared with other passengers has a lowered

expectation of privacy since “other passengers or bus

employees may move it for one reason or another.” Bond v.

United States, 529 U.S. 334, 338-39 (2000). See also Gwinn,

191 F.3d at 878-79; United States v. Harvey, 961 F.2d 1361,

1364 (8th Cir.1991) (finding that removal cf luggage from

overhead storage compartment of bus to facilitate a canine sniff

was not seizure).

events of 9/11, air travelers can no longer have a subjective expectation of

privacy in luggage or personal property. See Note 2, infra. However,

national security concerns with bus and train travel are somewhat iess

pressing than those with air travel. Bruce Richardson, president of a think

tank called United Rail Passenger Alliance, illustrated these lessened

concerns. “Let’s face it, if you hijack a train, what are you going to do with

it? ... All you can do is force it to stop or go. There are no runaway scenarios

here.” Karlayne Parker, Buses, Trains Search for Security S-lutions, Tampa

Tribune, Oct. 21, 2001, 200! WL 28746077. Because the mandatory search

provisions for luggage and packages put on airplanes do not apply to trains

or buses, train or bus travelers can at least argue that they have a subjective

expectation of privacy in their personal property, subject to the many

qualifications already imposed by Fourth Amendment case law. But whether

a post-9/! 1 society would recognize any mass transit traveler’s subjective

expectation of privacy as objectively reasonable is, obviously, another

matter.

40a

But train passengers-and presumably bus passengers as

well-have not yet had to surrender all subjective expectations of

privacy in their personal luggage.” The Supreme Court

recognizes that while bus passengers expect that their bags may

be handled, they do not expect “that other passengers or bus

employees will, as a matter of course, feel the bag in an

exploratory manner.” Bond, 529 U.S. at 338-339. “Unlike the

situation with airline travel, train passengers are not routinely

given advance notice that inspection of their luggage is a

condition of their travel. Thus, it cannot be said that by utilizing

train transport, they have impliedly consented to a subsequent

search of their luggage.” Gwinn, 191 F.3d at 874 n. 4.

Consequently, a bus passenger may still expect his or her bag

will not be subjected to any interference more intrusive than “a

canine sniff or the incidental touching that accompanies the

moving of luggage from the overhead” or the rearranging of

luggage in the baggage compartment under the bus. United

States v. Winborn, 2002 WL 1484489, *5 (D.Neb.2002). See

also United States v. Ward, 144 F.3d 1024, 1033 (7th Cir.1998)

(observing that a person who surrenders bags to Greyhound for

transport in a common luggage compartment “expects a

significantly greater degree of handling by strangers than would

a passenger who carried a bag with her onto the bus.”).

Furthermore, until Congress or the Eighth Circuit decides

differently, a bus passenger’s subjective expectation of privacy,

however limited, is one that society is prepared to recognize as

reasonable.

The evidence here does not suggest that the officers

*Since the terrorist attacks of September | |, 2001, the degree of privacy

that airline travelers may expect in their luggage has altered radically, as any

recent passenger on a commercial airline will vouch. Federal law now

requires screening of “all passengers and property, including United States

mail, cargo, carry-on and checked baggage, and other articles, that will be

carried aboard a passenger aircraft.” 49 U.S.C. § 44901(a). In addition,

federal employees must screen al! checked baggage for explosives, manually

if necessary. 49 U.S.C. §§ 44901(c)-(e).

4la

conducted the sort of “calculated and thorough” feeling and

manipulation of the garment bag’s exterior which the Eighth

Circuit found overly intrusive in Gwinn. Eberle testified that he

did not merely look at the bags under the bus; he said that he

“move[d] them around to-you have to in order to actually look

at the tags. You pick the bags up and sometimes we pull them

out to look at them.” TR at 32:9-1 1. But neither was this merely

the incidental manipulation of the defendant’s bag by other

passengers or bus employees recognized as permissible by

Bond, or the facilitated canine sniff of Harvey.’

Rather, by removing the defendant’s bag from the bus

without his knowledge or consent and carrying it inside the bus

terminal to a room inaccessible to the general public or to the

defendant, see TR at 12:19-13:6, the officers substantially

interfered with the defendant’s possessory interest in the bag.

See United States v. Terriques, 319 F.3d 1051, 1056 (8th

Cir.2003) (noting that when postal inspectors detained package

to obtain a warrant, they exhibited “dominion and control” over

the package that amounted to a seizure). By removing and then

detaining the defendant’s bag in the baggage terminal, the

officers “interfered with a possessory interest in the luggage ...

such that the expeciation of timely delivery of the ... luggage

has been frustrated.” Demoss, 279 F .3d at 640 (Hansen, J.

concurring) (citing United States v. Johnson, 990 F.3d 1129,

1132 (9th Cir.1993)), The officers removed and sequestered the

bag without knowing whether their suspicions could be

resolved before the defendant’s bus left the station. Their

testimony did not indicate that they made any arrangements for

a sniff search, an act that might have justified the bag’s

removal. Place, 462 U.S. at 705. They thus interfered with the

defendant’s “contractually-based expectation that he would

regain possession of the bag” when the bus arrived at

*The Supreme Court has held that the Fourth Amendment does not

prohibit a temporary detention of personal luggage “for exposure to a trained

narcotics detection dog on the basis of reasonable suspicion that the luggage

contains narcotics.” United States v. Place, 462 U.S. 696, 698 (1983).

42a

Washington, D.C. Ward, 144 F.3d at 1033.

Furthermore, analyzing the problem from a totality of the

circumstances approach, the officers did not have reasonable

suspicion, much less probable cause, to remove the bag and

detain it. Reasonable suspicion is necessary to detain a person’s

luggage and it must derive from more than a hunch. United

States v. Tillman, 81 F.3d 773, 775 (8th Cir.1996). Without at

least reasonable suspicion, an officer may not even temporarily

seize a person’s luggage. United States v. O'Neal, 17 F.3d 239,

242 (8th Cir.1994). A warrantless seizure and detention of

packages or baggage being transported by third parties such as

Greyhound is permissible only if the officers have a reasonable

and articulable suspicion of criminal activity. Terry v. Ohio,

392 U.S. 1, 20-23 (1968); Place, 462 U.S. at 708.

Eberle testified that his attention was drawn to the

defendant’s bag because it was new and because it had no

handwritten name tag. Lack of a name tag alone does not create

probable cause or even reasonable suspicion, Gwinn, 191 F.3d

at 879 n. 5 (observing that “[m]Jany passengers do not place

name tags on their luggage, particularly carry-on luggage’’),

particularly since the defendant’s bag did have a Greyhound

baggage tag. Nor could the “newness” of the defendant’s bag

alone have provoked reasonable suspicion, since all bags are, at

some point, “new.” Eberle did not testify that he noticed any

unusual bulges, bumps, or smells coming from the bag. In fact,

nothing about the external appearance of the luggage was

different from the thousands of other bags deposited with

common carriers by innocent travelers each day.

Therefore, if reasonable suspicion to seize and detain the

bag existed, it could only be based on the information Eberle

obtained from the Greyhound computer system about the bag.

The computer revealed that the passenger with whom the bag

was associated had purchased for cash a one-way ticket from

Los Angeles (a known source city for drugs) to Washington,

D.C. on the same day travel. Although this combination of

43a

factors might have applied to scores of innocent bus passengers

traveling on the day of the search, Eberle nevertheless claimed

that he suspected, based on his experience as an interdiction

officer, that the defendant’s bag might contain contraband.

“Conduct that is typical of a broad category of innocent

people provides a weak basis for suspicion.” United States v.

Tillman, 81 F.3d 773, 775 (1996). The totality of the

circumstances here represents conduct typical of innocent

people. There is no credible evidence that a person who paid

$169 cash for a one-way bus ticket from Los Angles to

Washington on the day of trave! engaged in suspicious activity.

See, e.g., White, 890 F.2d 1413, 1417 (8th Cir.1989) (finding

that officers lacked reasonable, articulable suspicion to justify

detention of a defendant or his luggage after the defendant

deplaned from drug-source city, even though the defendant had

purchased one-way ticket with cash).

The government seeks to apply the reasonable suspicion

analysis previous!y used in airport search cases in this bus

transportation case. Other than an interdiction officer’s bare

allegations about a particular bag’s suspicious appearance, a

court has no criteria for fairly deciding what luggage is

reasonably suspicious and what luggage is not reasonably

suspicious. Common experience suggests that most 4.’

passengers purchase tickets in advance, but there is no evidence

inat the same can be said for bus passengers. Common

experience also suggests that most plane tickets are not

purchased with cash, but again, there is no evidence that the

same can be said for bus tickets. Common experience further

suggests that the same holds true for the day on which bus

versus airline passengers actually purchase tickets. In general,

bus tickets are cheaper than most plane tickets. Bus

transportation is more likely to be used by people who cannot

afford the more costly plane tickets or who may not have credit

cards with which to charge air fare in advance of departure. Bus

tickets thus are more likely purchased for cash and on the same

44a

‘day of travel.

The cold truth is that drug trafficking via bus, rail, and

private transportation is increasing since all airplane luggage

and packages can be searched. In response, the grounds for

searching bus and rail baggage have quickly become so

generalized that the government is now freely searching any bag

that a government agent deems “suspicious.” This court has

heard every imaginable basis for searching so-called

“suspicious” luggage: it is old, it is new; it had a handwritten

identification tag or it did not; it is a soft bag, a garment bag, a

duffel bag; the possessor is too nervous, too self-assured, too

calm, too jittery, the bags are overstuffed or they are

underpacked. In truth, the only consistent factors this court has

discerned are, one, that the defendants are usually

African-American or] lispanic and, two, they are traveling from

the west or southwest parts of this country. The defendants’

race or ethnic appearance may have no validity because the

government has never produced as evidence statistics on the

racial breakdown of individuals stopped for suspicious bags or

on the racial breakdown of bus passengers in general. The

geographic origin of a bus itinerary may also have no validity

because local interdiction officers, by their own admission, only

search buses traveling eastward from the west and southwest.

See, e.g., 8:03CR128, Filing No. 30, Transcript, 8:1-10.

Ultimately, law enforcement officers offer no objective

evidence whatever about the criteria for suspicious luggage.

Given the pervasive nature of drug abuse in this country

and the reality that the transportation of drugs has moved from

the air to the ground since 9/11, this court has little doubt that

a search of all the luggage on board any bus or train would yield

a surprising number of bags containing drugs. But since the

Fourth Amendment has not yet been officially suspended for

bus and train travel, this belief cannot be tested. Therefore, until

Congress or a higher court determines that bus and train

travclers no longer have any expectation of privacy with regard

45a

to their luggage or personal property, this court finds that the

removal of the defendant’s bag and its sequestration in a room

of the bus terminal constituted an unconstitutional seizure in

violation of the deferdant’s Fourth Amendment rights because

they occurred without consent, reasonable suspicion, probable

cause, or a warrant.

B. Search of the Garment Bag

Because the seizure of the bag was unconstitutional, the

next issue becomes whether the defendant’s alleged consent to

the search of the bag removed the taint of the unlawful seizure.

The defendant objects to the magistrate judge’s finding that his

consent was knowingly and voluntarily given, noting that the

police report failed to state how or when the defendant

consented to the search.

When a person consents to a search following an illegal

detention or seizure, that consent “may, but does not

necessarily, dissipate the taint” of the prior Fourth Amendment

violation. United States v. Chavez-Villarreal, 3 F.3d 124, 127

(Sth Cir.1993). “Under the ‘attenuation’ exception to the

exclusionary rule, evidence that is in some way the product of

illegal police conduct may be admitted if it has become so

distanced from the underlying illegal police conduct as to

dissipate the taint of the illegal search or seizure.” United States

v. Goodrich, 183 F.Supp.2d 135, 145 (D.Mass.2001) (citing

Wong Sun v. United States, 371 U.S. 471, 488 (1963)).

The challenged evidence is admissible if 1) the consent was

voluntarily given, and 2) the consent was “an independent act

of free will.” Chavez-Villarreal, 3 F.3d at 127. The first prong

of this test examines whether the defendant was coerced; the

second prong examines whether the alleged consent was

causally connected to the constitutional violation. Jd. The

government bears the burden to prove by a preponderance of

the evidence that consent to search was freely given. United

States v. Smith, 260 F.3d 922, 924 (8th Cir.2001) (citing United

States v. White, 8\ F.3d 775, 780 (8th Cir.1996)).

46a

To determine the first prong, that is, whether a defendant

voluntarily consented to a search, the court must consider the

defendant’s “age, intelligence, intoxication, advice of Miranda

rights, and previous arrests.” United States v. Reinholz, 245 F

.3d 765, 780 (8th Cir.), cert. denied, 534 U.S. 896 (2001)

(citing United States v. Chaidez, 906 F.2d 377, 381 (8th

Cir.1990)). The court also considers the environment in which

the consent was allegedly given, looking at the length of

detention, any threats or misrepresentations by police, whether

the suspect was in custody or under arrest, whether the place

where the arrest occurred was public or private, and whether the

Suspect made any contemporaneous objections or

representations. /d.

Here, the defendant is an adult who on the day of his arrest

appeared to Eberle sober and of normal intelligence; in fact, the

defendant at the suppression hearing testified that he had

attended college, TR at 79:9-15. He voluntarily came to the

ticket counter when summoned by Eberle’s page over the

terminal intercom. After confirming that the defendant’s name

matched that on the baggage ticket, Eberle asked the defendant

to accompany him, and the defendant acquiesced. Eberle led the

defendant out of the public area of the terminal and to the rear

baggage terminal, where at least two other officers were waiting

with the bag in a room with two open doors. Eberle testified

that the defendant then consented to the search, but what the

defendant said or did to consent is unclear from the testimony.

See TR at 19:22-25;49:20-50:9;51:10-53:

1;53:9-55:18;73:3-74:7;76:1-77:6;81:17-82:18;85:8-25. The

defendant’s own testimony indicates that he did not object to

the search. TR at 82:7-18. Although the defendant testified that

he did not know his rights at the time of the search, officers are

not required to tell bus passengers that they have a right to

refuse to cooperate and to refuse consent to a search. United

States v. Drayton, 536 U.S. 194, 206-207 (2002); United States

v. Smith, 260 F.3d 922, 924 (8th Cir.2001) (citing United States

v. Barahone, 990 F.2d 412, 417 (8th Cir.1993)). The officers

47a

did not give the defendant his Miranda warnings until after he

had been transported from the bus terminal to a Nebraska State

Patrol office for questioning. The record does not make clear

whether the defendant had a history of prior arrests. Eberle was

in plainclothes and his weapon was not visible. Nothing in the

testimony suggests that Eberle or Lutter directly threatened or

coerced the defendant.

However, there is no reason to believe that the defendant or

anyone else-even most lawyers-would know that they could

refuse the request to search the bag. The defendant here was

alone, in a private room, with at least two armed police officers.

His bag was already in the possession of law enforcement

officers, and they then asked him if they can search the bag.

Under the totality of the circumstances, no reasonable person

would believe that he or she had a choice about the search.

Certainly the defendant did not explicitly consent to the search.

Based on all these factors, 1 conclude that the defendant’s

consent was not voluntarily given.

To determine the second prong, that is, whether a

defendant’s consent to the search was an independent act of free

will that broke the causal chain between the unconstitutional

violation and the consent, three factors are relevant: “the

temporal proximity of the [seizure and the consent], the

presence of intervening circumstances, and particularly, the

purpose and flagrancy of the official misconduct.” Brown v.

Illinois, 422 U.S. 590, 603-04 (1975); see also United States v.

Moreno, 280 F.3d 898, 900 (8th Cir.2002). The burden is on the

government to prove that the connection between the illegal

arrest and the confession has been broken. Brown, at 604.

First, the temporal proximity of the unconstitutional seizure

of the bag and the defendant’s consent to search it strengthens

the connection between the two and weighs in favor of

excluding the evidence as an involuntary consent. Very little

time elapsed between Eberle’s decision to remove and sequester

the defendant’s bag and the defendant’s consent to search it. In

48a

that time, Eberle paged the defendant to the ticket counter, told

him there was a problem with his bag, asked him to accompany

him to the rear baggage terminal, and upon entering the baggage

room, asked for his consent to search. No more than a few

minutes could have elapsed.

Second, the court must inquire whether intervening

circvmstances purged the taint of the unlawful seizure.

Common examples of intervening circumstances include telling

a suspect he can refuse consent to a search, releasing a suspect

from custody, bringing the suspect before a magistrate, or

permitting the suspect to speak to a lawyer. See, e.g., Moreno,

280 F.3d at 901; United States v. Delgadillo-Velasquez, 856

F.2d 1292, 1300 (9th Cir.1988). Here, however, nothing in the

record indicates the presence of an intervening circumstance

which led the defendant to consent to the search. Therefore, this

factor suggests that the defendant’s consent was not voluntary.

The final Brown factor examines the purpose and the

flagrancy of the official’s misconduct. Eberle testified that he

brought the bag inside to the rear baggage terminal because

Greyhound discourages interdiction officers from speaking to

bus passengers and others in the refueling area. TR at

58:15-59:2. According to Eberle, interdiction officers

apparently had been removing and sequestering bags pursuant

to Greyhound’s policy for over a year prior to the events at

issue without any legal challenge. TR at 59:3-22. However,

Greyhound’s policy cannot make the seizure constitutionally

permissible. While Greyhound had the right to remove a bag in

its custody and control and take it to a private area inside its

terminal, the officers did not. Furthermore, the officers could

have obviated this entire issue had they used Eberle’s drug dog,

who was apparently at the bus station on the day in question.

Eberle offered no reason for seizing the bag rather than

subjecting it to a canine sniff. See TR at 25:16-26:4. While the

officers’ seizure was not a “flamboyantly flagrant” Fourth

Amendment violation, I find Eberle’s decision to seize and

49a

sequester the bag “was clearly motivated by an unrestrained

desire to find evidence despite the lack of search warrant or

probable cause.” Goodrich, 183 F.Supp.2d at 148. The officers

asked for the defendant’s consent to search only after they had

already examined and handled the bag and then carried it inside

the terminal. Such thorough “dominion and control” might

easily have also included exploratory-but - still

illegal-manipulation of the bag’s contents.

I find that all three of the Brown factors weigh against a

finding that the defendant’s consent was an independent act of

free will. I find that the causal chain between the illegal seizure

and the defendant’s consent was never broken. The defendant’s

apparent acquiescence did not remove the taint of the illegal

seizure. Consequently, the evidence obtained in the search after

the illegal seizure is “fruit from a poisonous tree.” For these

reasons, the defendant’s motion to suppress the evidence is

granted. |

C. Use of Va Lerie’s Statements for Impeachment Purpose

For the reasons stated in Magistrate Judge Thalken’s report

and recommendation, I find that the government has failed to

carry its burd

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