Opinion
8:02CR75
August 5, 2002
MEMORANDUM AND ORDER
Introduction
Before me is the objection of defendant Darniell L. Shelton (Shelton), Filing No. 32, to the magistrate's report and recommendation, Filing No. 25, in which the magistrate recommends that this court deny defendant Shelton's motion to suppress, Filing No. 13. Shelton is charged with one count of possession with intent to distribute crack cocaine and cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1).
Shelton contends that his initial consensual encounter terminated when he refused to consent to an officer's search of his gym bag. Shelton argues that any subsequent contact by the police was not supported by a reasonable suspicion of criminal activity and all evidence received after consent was denied is inadmissible. Finally, Shelton disputes that officers ever had a reasonable suspicion to detain his luggage. I have reviewed the record, including the report and recommendation of the magistrate and the transcript of the motion to suppress hearing, Filing No. 20 (hereafter, TR); Shelton's objection, Filing No. 32; as well as the parties' briefs and the applicable law. I decline to adopt the report and recommendation and find that the defendant's motion to suppress should be granted.
Factual Background
On February 8, 2002, Nebraska State Patrol Investigator Richard Lutter and other members of the patrol's commercial interdiction unit were at the Omaha Greyhound bus depot. TR 12:19-13:4. Nine police officers were present in the bus station that morning, including Douglas County Deputy Sheriff Murphy, who is a member of the commercial interdiction unit and the handler for a dog trained to detect drugs. TR 11:25-12:11, 13:1-4. Lutter testified that he has worked with Deputy Murphy and the dog from time to time. TR 12:15-18. The officers were generally watching buses traveling from the west coast to the east coast. TR 13:9-17. Lutter stated that based on training and experience, officers are aware that illegal narcotics are transported from the southwest corner of the United States. TR 14:6-9.
The bus upon which Shelton was traveling originated in Los Angeles, California. It stopped in Omaha for refueling and cleaning. TR 14:16-22, 21:4-5. The passengers were not required to remove their luggage during the stop. TR 18:17-19. Lutter stated that when he first observed Shelton coming off the bus, Shelton was carrying a duffle bag. TR 15:12-13. Lutter testified that the bag appeared to be heavy because it sagged in the middle; it appeared to contain a weight. TR 27:4-6.
Shelton carried the bag into the bus terminal, went to the seating area in front of the snack bar, placed the bag directly on a table in front of him, and sat down. TR 18:3-12. From this vantage point defendant could see the entire bus terminal and observe everybody in the terminal. TR 25:9-14. Lutter stated that it appeared that Shelton was "scanning" the bus station. TR 26:19. According to Lutter, "a normal passenger is concerned with taking care of themselves, making sure they get the benefit of the stop." TR 26:5-7.
Lutter testified Shelton exited the bus but would reboard. TR 37:18-19. Lutter stated although fewer than 50% of people who reboard take their bags off the bus with them, it is not uncommon for them to do so. TR 19:22-20:1. Lutter noted that in general, when people take their bags off a bus and then reboard, they have used the bags to retrieve clothing, wash up, and the like. TR 20:7-11. He testified travelers sometimes purchase items at the bus station and place them in their bags. TR 20:9-11. Lutter said that usually, when a passenger exits a bus with luggage, the passenger either has reached his final destination, or needs the bag to carry items used during the stop. TR 20:12-15. Lutter stated, "The fact that [Shelton] placed his bag on top of the table and had no other contact or activity with the bag other than sit by it is what initially caught my attention." TR 15:16-18.
According to Lutter, it usually takes Greyhound about half an hour to clean and refuel a bus. TR 20:22-24. Lutter testified that he observed Shelton for the first five minutes after Shelton exited the bus. TR 22:13-15. Lutter and the other officers then left the bus station for about ten minutes to talk to another passenger several blocks away from the station. TR 21:15-19. When the officers returned to the bus station, Lutter saw Shelton sitting at the same table with the duffle bag on the table. TR 21:18-22:2.
The police officers stationed themselves where they could observe Shelton. TR 23:2-4. According to Lutter, they watched Shelton until he rose to reboard the bus. TR 23:5-7. During that time Lutter did not see Shelton get up from the table and go anywhere. TR 23:9-11. Lutter testified he saw Shelton touch the bag once, "but he just had his hand like it was resting on it because it was directly in front of him." TR 23:12-16. Lutter did not see Shelton open the bag, retrieve anything from it, or open the bag's exterior pockets. TR 23:17-24.
Shelton approached Gate #2 after hearing the announcement that it was time to get back on the bus. TR 27:12-23. Shelton was the first person in line. TR 28:1-3. Since the bus did not have assigned seating, the first person on the bus would have his choice of seats. TR 58:14-17. Lutter decided to approach Shelton while he was in line to reboard the bus. TR 58:22-24. Shelton was carrying the duffle bag using the shoulder strap. TR 38:21-24.
Lutter testified that he approached Shelton inside the bus station, identified himself as a police officer, advised Shelton that he was not under arrest, and asked Shelton if he had a few minutes to speak with him. TR 28:4-8. Shelton turned and stated, "Yes." TR 28:9-11. Lutter asked Shelton if he had a bus ticket and where he was going. TR 28:6-7. Shelton said he was going to Milwaukee and presented his bus ticket to Lutter. TR 28:7-8.
While Lutter looked at the ticket, Shelton volunteered that he had already been searched by law enforcement in Las Vegas and Denver. TR 29:18-21. Lutter stated that he knew from recent conversations with interdiction officers who work the terminals in Denver and Las Vegas that they were not currently working the bus stations regularly. TR 30:6-9. Lutter doubted that officers were at both Denver and Las Vegas on the dates and times Shelton mentioned or that the same passenger would be approached at those locations. TR 31:4-10. On cross-examination, however, Lutter testified that he had not called Denver or Las Vegas to see whether interdiction officers worked on February 8, 2002. TR 61:10-12. Because Denver and Las Vegas use metal detectors and scanners, Lutter testified that he assumed Shelton meant he was searched when he went through a metal detector or other machine at Las Vegas or Denver. TR 61:13-23.
Shelton's bus ticket was a one-way ticket for travel from Los Angeles to Milwaukee. TR 33:22-25. The ticket included a receipt and a claim stub for a suitcase checked in the name of "Darniell Loreant." TR 32:10-15. The ticket identified segments of travel from Los Angeles to Denver to Chicago to Milwaukee. TR 32:24-33:2.
The bus trip began in Los Angeles on February 6, 2002, and was scheduled to arrive in Milwaukee on February 8. TR 33:17-21. Shelton's bus fare was $126, which he paid in cash on the day he left Los Angeles. TR 66:8-10. Lutter testified that paying cash for a ticket on the same day of travel is uncharacteristic for normal travelers. TR 67:17-19.
Lutter asked Shelton for more identification shortly after looking at the ticket. TR 34:14-15. Shelton produced a Wisconsin identification card bearing the name "Darniell Loreant Shelton," explaining that he used his middle name for the last name on the bus ticket. TR 34:21-35:7. Lutter returned the ticket and identification card to Shelton. TR 35:12-13. Lutter then advised Shelton that his purpose for working the Greyhound bus station was to watch for people possibly transporting illegal narcotics. TR 35:13-15.
Lutter asked Shelton if he had any illegal narcotics on his person. TR 35:15-16. Shelton said, "No." TR 35:17-18. Still inside the terminal, Lutter then requested permission to search Shelton's duffle bag. TR 35:20-21. Shelton refused, stating that he didn't want it searched. TR 35:25-36:1. Shelton presented his ticket to the bus driver while Lutter was talking to him. TR 37:21-23. Shelton exited the bus terminal and took approximately three or four steps outside the terminal toward the bus. TR 37:23-25. Lutter asked why Shelton did not want Lutter to search. TR 37:25-1. Shelton stated for a second time he had already been searched in Las Vegas and Denver. TR 36:19-21. Shelton made this statement within two minutes of the first time he told Lutter he had already been searched in Las Vegas and Denver. TR 79:23-25.
Lutter stood next to Shelton, Shelton turned, placed the bag on the ground, unzipped it, and said, "All that's in here is my DVD player and some CDs." TR 39:4-7. Shelton removed a DVD player and a rectangular black box of CDs from the bag, although he had not been specifically asked or told to open the bag. TR 39:7-10. Shelton did not lay the items down, but kept them in his hands and held them above the bag. TR 40:25-41:3. Lutter then asked if he could look into the bag. TR 39:18-19.
Lutter could see into the bag to the extent of the two items Shelton had removed. TR 41:11-14. Lutter saw the bag also contained headphones, a stack of CDs, and DVDs in individual cases. TR 41:17-20. There were no other items visible. TR 41:19-22. Lutter testified that the stack of CDs and DVDs was at one end of the bag, but the stack was elevated toward the top of the bag. TR 42:1-4. Lutter testified that he could see that the bottom of the inside of the bag seemed to be elevated two to three inches higher than the ground. TR 42:9-11. He noted that these kinds of bags generally have a thin cardboard or plastic sheet on the bottom, not a heavily-padded area. TR 42:12-15. Lutter testified on cross-examination that he could not see the removable black panel on the bottom when Shelton first unzipped the bag because a black jacket was also in the bag. TR 63:11-16.
Based on his observations of the bag, Lutter believed something was hidden underneath the interior bottom of the bag because the interior bottom was higher than the outside bottom of the bag, and these bags generally have very limited padding on the bottom. TR 44:20-24. His suspicion was also based on his earlier observation that the bag appeared to be heavy and sagging in the middle. TR 55:4-6. Lutter indicated that he has found illegal contraband located and secured in this manner on previous stops. TR 44:25-45:1.
As Lutter asked what was in the bottom of the bag, Shelton turned and placed the bag directly in front of himself. TR 45:24-46:2. Shelton pushed the two items back into the bag and slid the bag on the ground in front of him to the left, away from Lutter and toward a wall. TR 46:2-5. Shelton continued zipping the bag shut and said there was nothing in the bottom of the bag. TR 46:7-10. Lutter's affidavit (Ex. 1) states that Shelton "refused to make direct eye contact with Lutter and that he continued to move his feet and body during the contact." Filing No. 20, Ex. 1 at 2.
At this point, Lutter believed the bottom of the bag concealed contraband. TR 46:12-13. Lutter told Shelton he was free to board the bus or leave, but Lutter intended to detain the bag for a canine sniff. TR 46:13-16. The bus had not departed, but Shelton elected to stay with the bag. TR 46:17-20. Lutter then contacted Officer Murphy and advised him that he wanted a canine sniff of the bag. TR 46:22-23. Murphy and the dog approached Shelton, who was still standing a few steps outside the gate. TR 47:3-14. Murphy told Lutter that the area was not conductive to a dog sniff, so the officers took the bag from the location to the luggage room in the back of the bus terminal. TR 46:24-47:2, 47:16-18.
The dog sniff was conducted in the luggage room. TR 47:16-18. Shelton went to the luggage room with Lutter and Murphy, although he had not been ordered to do so. TR 47:24-25. He was not handcuffed and his bus had not yet departed. TR 47:22-23, 48:1-2. Deputy Murphy informed Lutter that the dog gave a positive indication of the odor of narcotics on the bag. TR 48:7-10. Lutter told Shelton he intended to apply for a search warrant for the bag, and it would take about two hours. TR 48:13-15. Lutter began preparing the search warrant application and left the bus terminal to go to the Douglas County Courthouse. TR 48:18-20. When Lutter left the bus station, Shelton was in the rear luggage area of the main terminal with the other officers and was not handcuffed. TR 49:7-10. Shelton still had not been told he had to stay at the bus station. TR 49:13-18.
Lutter obtained a search warrant from the Douglas County Court for the duffle bag and the suitcase designated on Shelton's bus ticket. TR 49:21-25. Officers retrieved the suitcase from a checked luggage bin underneath the bus after the canine alert just prior to the bus departing. TR 50:20-51:3. Deputy Murphy's dog did not alert to the odor of narcotics in the suitcase, and officers seized no narcotics from it. TR 50:15-18. In the duffle bag, the officers found two bundles of narcotics. Both were wrapped in packaging and were found in the bottom of the duffle bag underneath the interior bottom black panel. TR 51:25-52:11. The bundles were approximately a kilo-brick size, that is, four to six inches wide, eight to ten inches long, and two inches thick. TR 52:19-22. One of the bundles contained 13.5 grams of crack cocaine in addition to powder cocaine. TR 52:12-17.
Discussion
Shelton contends that Investigator Lutter's persistent questioning after Shelton refused to allow the search of his bag ended the consensual nature of the encounter with Lutter. Shelton argues that this gave rise to an investigatory detention requiring reasonable suspicion. Shelton concedes that his encounter with Lutter began in a consensual manner. However, Shelton argues that it was the "accusatory, persistent, and intrusive" questioning by Lutter that turned "an otherwise voluntary encounter into a coercive one." United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995).
Not every contact between law enforcement officers and citizens constitutes a Fourth Amendment seizure. Terry v. Ohio, 392 U.S. 1, 19 (1968). A consensual encounter is characterized by circumstances which would lead a reasonable person to believe he could terminate the encounter and be on his way. Florida v. Bostick, 501 U.S. 429, 434 (1991). A seizure, by contrast, occurs only if, considering all the circumstances, a reasonable person would believe that he or she is not free to leave. INS v. Delgado, 466 U.S. 210, 215 (1984). For a seizure to occur, there must also be either a physical application of force by the officer or a submission to the officer's assertion of authority. California v. Hodari D., 499 U.S. 621, 626-29 (1991); United States v. Thompkins, 998 F.2d 629, 633 (8th Cir. 1993).
A seizure does not ordinarily occur when a police officer approaches an individual and asks for identification or asks a few questions. Bostick, 501 U.S. at 434. Following the initial exchange inside the terminal, Lutter merely asked Shelton, as he took three or four steps outside of the terminal toward the bus, why Shelton did not want Lutter to search. TR 37:23-38:1.
Lutter's questioning of Shelton was not so "accusatory, persistent, or intrusive" that it constituted a seizure. Nor did Lutter apply physical force or threaten to assert authority over Shelton. I find that a reasonable person would have felt free to leave at any time during this encounter. Delgado, 466 U.S. at 215. But Shelton responded to Lutter's remarks by turning, placing the bag on the ground, unzipping it, and saying, "All that's in here is my DVD player and some CDs." TR 39:4-7. Shelton did so without being specifically asked or told to open the bag. TR 39:7-10. Shelton's voluntary conduct in continuing to speak with Lutter was not due to any coercive tactics Lutter's part. Hence, Lutter's initial conversation with Shelton did not constitute a seizure.
I agree with the magistrate, however, that when Lutter decided to detain Shelton's bag for a canine, what had begun as a consensual encounter between the officers and Shelton developed into a Terry-type investigatory stop requiring a reasonable articulable suspicion. The Fourth Amendment permits warrantless detention of individuals or their luggage only where officers have reasonable suspicion, supported by articulable facts, that criminal activity is afoot. United States v. Place, 462 U.S. 696, 708 (1983). Reasonable suspicion is more than an officer's inchoate or unparticularized hunch. Terry, 392 U.S. at 27. Rather, the police officer must point to particularized facts and the rational inferences that may be drawn from those facts, which, viewed together and in light of the officer's experience, suggest illegal conduct. United States v. Sokolow, 490 U.S. 1, 7-8 (1989).
The magistrate judge concedes that this is a very close case. Filing No. 25 at 16, 17. But unlike the magistrate, I conclude that Shelton's Fourth Amendment rights were violated because Lutter did not have a reasonable suspicion, supported by articulable facts, to seize Shelton's bag. When Lutter seized Shelton's bag, Lutter knew only that: 1) Shelton had just arrived from a source area for drugs; 2) Shelton had paid $126 in cash for a one-way ticket; 3) Shelton was carrying a bag which sagged in the middle and appeared to be heavy; 4) while waiting to reboard his bus, Shelton placed his bag on the table in front of him, but failed to retrieve anything from it; 5) Shelton sat at a table with a full view of the terminal, where he watched the people and activity in front of him; 6) Shelton's claim that he had been searched in Denver and Las Vegas did not fit with what Lutter believed to be the interdiction focus in those cities; 7) there was a slight discrepancy between the name on Shelton's identification and the name on Shelton's ticket because on the ticket, Shelton had used his middle name rather than his last; 8) Shelton refused to consent to a search of his bag; 9) Shelton refused to make eye contact with Lutter and moved his hands and feet during the encounter; and 10) Lutter believed that the flat, interior bottom of the bag was elevated to hide contraband underneath.
A similar list was insufficient to validate a seizure in United States v. White, 890 F.2d 1413, 1417 (8th Cir. 1989), where drug interdiction officers stopped the defendant after he exited his flight from Los Angeles. According to the officers, White raised suspicions because 1) he was traveling from a source city; 2) he had arrived early in the morning; 3) he was on a flight that had previously yielded arrests of drug traffickers; 4) he had purchased a one-way ticket with cash; 5) he held his carry-on bag closely with both hands; 6) he appeared nervous as he walked through the airport; and 7) his hands were trembling when he handed the officers his identification. Id. Relying on the Supreme Court's decision in Reid v. Georgia, 448 U.S. 438, 440-41 (1980), the Eighth Circuit held that these factors fell short of providing reasonable suspicion to detain White and his luggage. White, 890 F.3d at 1417. The court reasoned that many of the officer's observations would describe "a large category of presumptively innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure." Id. (quoting Reid, 448 U.S. at 441).
Similarly, in United States v. Fletcher, 91 F.3d 48 (8th Cir. 1996), officers stopped Fletcher because 1) he had arrived from a drug source city; 2) he was the first off the plane; 3) he proceeded directly to the restroom; 4) he was connected to a white pick-up truck with supplemental gas tanks and Arizona license plates; 5) he told the police he had a round-trip ticket when the officers believed he had a one-way ticket purchased with cash; 6) he withdrew his consent after initially agreeing to a search; and 7) he was associated with a woman at a local address where a narcotics complaint had been made. The circuit court held these facts were insufficient to support a reasonable suspicion that Fletcher was engaged in illegal activity. Id. at 51. Fletcher used the same rationale as White to deem the seizure invalid. Id.
Here, Lutter's observations of Shelton are not enough to establish reasonable suspicion. Most of Lutter's observations could describe "a large category of presumptively innocent travelers." Merely because one sits quietly in a bus terminal canteen with one's bottom-heavy bag on a table, watching the world go by, does not create a reasonable suspicion that one is engaged in criminal activity. Merely because one pays cash for a one-way ticket does not mean one is engaged in criminal activity. And most importantly, merely because one refuses to give a law enforcement officer consent to search one's belongings does not mean that one is transporting contraband.
I specifically decline to attach weight to Lutter's observation that Shelton had not been subjected to interdiction procedures in Los Angeles or Denver, particularly since Lutter admitted he did not check to see what interdiction operations were underway in those two cities on February 8. Further, Lutter's observation that the interior bottom of the bag was elevated and hiding material underneath is not especially credible since Lutter also testified that he could not see the bottom plastic cardboard floor because the bag contained a folded black jacket. TR 63:14-16. With the jacket blocking his view, Lutter could not have accurately determined the distance between the exterior bottom and the interior bottom.
Accordingly, I find that considering the totality of the circumstances, the seizure and warrantless detention of Shelton's bag violated the Fourth Amendment. Since the officers did not have reasonable suspicion that Shelton was involved in criminal activity, they were not entitled to seize his bag without his consent and take it inside the terminal for a canine search.
IT IS, THEREFORE, ORDERED:
1. The defendant's statement of objection, Filing No. 32, to the magistrate's report and recommendation, Filing No. 25, is sustained;
2. The magistrate's report and recommendation, Filing No. 25, is not adopted; and
3. The defendant's motion to suppress, Filing No. 13, is granted.