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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0847%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 903

## Text

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.

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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.

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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 assertio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0847%3A1. Public record. Not legal advice.