Opinion
Case No. 8:01CR316
April 26, 2002
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on the Report and Recommendation prepared by Magistrate Judge Thomas D. Thalken recommending denial of the Defendant's Motion To Suppress (Filing No. 21). Defendant Stephen J. Damen ("Damen") submitted a Statement of Objections to the Magistrate Judge's Report and Recommendation (Filing No. 22), pursuant to 28 U.S.C. § 636(b)(1)(C) and NELR 72.4. Damen is charged in the one-count Indictment with a violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), the possession with intent to distribute methylenedioxymethamphetamine, MDMA, also known as "Ecstacy."
Damen seeks an order suppressing all evidence obtained as a result of his detention and arrest on October 26 and 27, 2001, and as a result of the search of a train sleeper car in which he was traveling from Chicago, Illinois, to Omaha, Nebraska, on October 26 and October 27, 2001 (Filing No. 11). Following a hearing on the motion, Magistrate Judge Thalken issued a Report and Recommendation in which he determined that Damen had given his consent to law enforcement officers in Chicago to search his suitcase, that the law enforcement officers in Omaha had reasonable articulable suspicion to stop and question Damen, that Damen gave his consent to the canine sniff of the sleeper car, and that the officers had probable cause based on the police dog's alert to search the sleeper car. Magistrate Judge Thalken also found that Damen's consent was freely given.
On the basis of these determinations, Magistrate Judge Thalken recommended denying the Defendant's Motion to Suppress (Filing No. 11). Damen filed his Statement of Objections to the Report and Recommendation (Filing No. 22) and renewed his Motion To Suppress.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which Damen has objected. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
STATEMENT OF FACTS
Magistrate Judge Thalken provides a detailed, factual account of the events relating to the interview and search in Chicago and of the investigation, interview, and use of the police dog to sniff the Damen's sleeper car in Omaha. I have considered the transcript of the hearing conducted by the Magistrate Judge on January 25, 2002 (Filing No. 17), and I have considered the parties' briefs relating to the Defendant's Statement of Objections. The summary of facts as set forth in the Report and Recommendation is complete and accurate, and it is adopted by the Court.
OBJECTIONS
Damen objects to the following conclusions by the Magistrate Judge:
1. the Omaha investigators had reasonable, articulable suspicion that Damen was involved in criminal activity;
2. the encounter between the Omaha investigators and Damen was not a seizure;
3. Damen consented to the search and canine sniff of his sleeper car, his luggage, or any package contained in his sleeper car; and
4. the Omaha investigators could conduct a search of Damen's sleeper car, luggage or package without a warrant.
Each of Damen's objections will be considered in turn.
ANALYSIS
Reasonable, Articulable Suspicion
Damen contends that the Omaha investigators did not have reasonable, articulable suspicion that Damen was involved in any criminal activity, and therefore, the Omaha investigators had no basis for confronting Damen on the train in Omaha. Damen argues that the Chicago Investigators did not have a reasonable, articulable suspicion of criminal activity sufficient to detain Damen or to keep the bag of suspected contraband. Therefore, he contends that under a theory of collective knowledge, the information provided to Omaha investigators by the Chicago agents lacked the requisite level of reasonable suspicion necessary for the Omaha investigators to conduct the initial stop, the questioning of Damen, and the canine sniff of the sleeper car.
Magistrate Judge Thalken concluded that the Chicago officers knew that Damen was traveling on a one-way ticket, from a source state for narcotics, and that he had purchased his ticket with cash. Magistrate Judge Thalken also found that the Chicago officers' questioning of Damen was conducted without coercion or undue force, and that the officers noticed Damen displaying nervous behavior and avoiding eye contact with them. The record supports these findings. I agree with Magistrate Judge Thalken's conclusion that these facts provided the Chicago officers with much more than a hunch, and with at least a reasonable articulable suspicion of criminal activity that warranted a brief detention. See United States v. Delaney, 52 F.3d 182, 187 (8th Cir. 1995), and United States v. Jones, 990 F.2d 405, 408 (8th Cir. 1993). The fact that the train began moving and the Chicago investigators decided to leave the train does not diminish the level of suspicion that was already present.
When the Omaha investigators received this information from the Chicago investigators, under the theory of collective knowledge, the Omaha investigators had a lawful basis upon which to briefly detain Damen and ask additional questions. See Florida v. Royer, 460 U.S. 491, 497 (1983), and United States v. Gonzales, 220 F.2d 922, 925 (8th Cir. 2000). Damen's responses to the questioning by the Omaha investigators added to their level of suspicion (TR 68-72). I adopt Magistrate Judge Thalken's conclusion that the Omaha investigators had reasonable, articulable suspicion to question Damen.
Omaha Investigators Encounter with Damen
Damen also urges the Court to reject Magistrate Judge Thalken's determination that the encounter between Damen and the investigators in Omaha was not a seizure. Damen argues that the location of the encounter is key. Because the encounter occurred in a sleeper car of a train, one that was paid for by Damen, rather than in a public area like the hallway of the train car, Damen argues that the encounter was actually a seizure under the Fourth Amendment. I disagree.
The record is clear that when the Omaha investigators first approached Damen's sleeper car around midnight on October 26, they knocked on the door, and Damen opened the door slightly. At the request of Investigator Eberle, who was working with Investigator Lutter on that day, Damen agreed to talk to the Omaha investigators, but Damen asked for a moment to put on his pants. It is undisputed that Damen closed the door for a few moments and reopened the door after he was more fully dressed. Eberle asked Damen to turn on the light of the sleeper car, and Damen complied. The investigators asked to see his ticket, and when they confirmed that they were speaking with Damen, Eberle asked Damen about his destination and the purpose of his trip.
Eberle explained who he was and what his job was, and then asked Damen whether he had any narcotics or large sums of money with him. Damen said he did not, and looked around the sleeper car to the area to the right, where the Ecstacy was later located.
When Eberle asked Damen if he could search the sleeper car, Damen expressed his frustration with the request. According to the transcript, Damen said that "this is ridiculous" and complained about how the search of his luggage in Chicago had been conducted. Eberle took his remark to be a refusal of consent to hand search his sleeper car. Eberle did not ignore the refusal. He did not enter the sleeping car at that time, and he did nothing to intimidate Damen. Lutter was also in the train car, but he was standing a few feet away from the entrance to Damen's sleeping car.
As in United States v. Jones, 990 F.2d 405, 408 (8th Cir. 1993), the position of the investigators in the train aisle was compelled by the location of the interview. None of the Omaha investigators at the scene touched Damen, threatened Damen, or prevented him from leaving the sleeping car or closing its door. Eberle stood to the side of the sleeper car door, and Lutter stood a few feet away from the door. Under Terry v. Ohio, 392 U.S. 1 (1968), Florida v. Bostick, 501 U.S. 429 (1991), and United States v. Jones, supra, there was no seizure of Damen. Magistrate Judge Thalken's analysis of the Omaha investigators' interaction with Damen is correct, and I adopt it.
Consent to Dog Sniff
Damen also objects to the Magistrate Judge's finding "that he consented to the search or dog sniff of his sleeper car, his luggage or any package contained in his sleeper car" and that the Omaha investigators could conduct a search of Damen's sleeper car, luggage or package without a warrant. As a preliminary matter, the Court notes that Magistrate Judge Thalken did not find that Damen gave his consent to a hand search of the sleeper car. Magistrate Judge Thalken concluded, however, that Damen provided his valid consent to allow the police dog to sniff the sleeper car.
After Damen refused to give his consent to the hand search of the sleeper car, Eberle asked if he could bring a police dog into the sleeping car to conduct a canine sniff. Damen agreed that the dog could enter the sleeping car. Damen objects to Magistrate Judge Thalken's finding that his consent to the canine sniff was voluntary. He contends that the physical proximity of the investigators to him in a closed space in the middle of the night transformed the encounter a seizure.
Because the Omaha investigators did not have a warrant, they either had to have Damen's consent or reasonable suspicion that criminal activity was afoot. I agree with Magistrate Judge Thalken that the Omaha officers had both.
A passenger train is not a "temporary home" for Fourth Amendment purposes and nothing more than reasonable suspicion is required before a canine may be brought into a train compartment. See United States v. Whitehead, 849 F.2d 849 (4th Cir. 1988), vacated on other grounds, Gozlon-Peretz v. United States, 498 U.S. 395 (1991). As discussed earlier in this memorandum, the record demonstrates that the officers had reasonable, articulable suspicion based on the fact that 1) Damen was a passenger traveling on a train from a drug-source state; 2) he was traveling on a one-way ticket; 3) he paid for the ticket in cash; 4) officers in Chicago, with Damen's consent, had found a bag that was suspicious; and 5) Damen appeared nervous and did not make eye-contact with the investigators.
These facts are sufficient to establish reasonable suspicion. See United States v. Jones, 990 F.2d at 408.
Even if the investigators lacked reasonable suspicion, the canine sniff was valid based on Damen's consent. While I agree that the evidence shows that Damen did not agree to a hand search of the sleeper car, I also agree with Magistrate Judge Thalken's conclusion that Damen voluntarily consented to the canine sniff of Damen's sleeper car. When Eberle asked if he could bring his dog into the sleeper car to sniff, Damen communicated his consent by saying: "That's fine." The Court also concludes that Damen's consent was given voluntarily when considered in light of all the circumstances.
The United States Court of Appeals for the Eighth Circuit has identified guidelines for this Court to consider when evaluating the voluntariness of consent.
We have identified factors to be considered in making this determination, including 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), citations omitted.
When applying these guidelines to the facts presented here, the Court finds that Damen voluntarily consented to the canine sniff of his sleeper car. Damen was cognizant of what was going on around him, and he had not been threatened or bullied by the Omaha investigators. In the few minutes it took for Eberle to leave the area of the sleeper car to retrieve the dog, Damen did not withdraw his consent.
Although the consent was requested and given around midnight, perhaps after Damen had awakened from sleep, the evidence demonstrates that Damen was fully awake at the time he gave his consent, and that he understood what was being requested of him. Strong evidence of Damen's level of awareness is the fact that he had denied Eberle's earlier request to hand search the sleeper car. It did not appear to Eberle that Damen was operating under any impairment. Based on all the evidence relating to Damen's personal characteristics and the environment in which Damen gave his consent to the dog sniff, the Court concludes that Damen's consent to allow the dog to sniff the sleeper car was voluntarily given, and the Court adopts Magistrate Judge Thalken's report in this regard.
Probable Cause to Search the Sleeper Car
I agree with Magistrate Judge Thalken that once the police dog alerted to the presence of a controlled substance in the sleeper car, probable cause to conduct a search was established. See United States v. Place, 462 U.S. 696, 706 (1983), United States v. Bloomfield, 40 F.3d 910, 919 (8th Cir. 1994), cert. denied 514 U.S. 1113 (1995). I note that the evidence demonstrates that the police dog used in connection with this sniff had been reliable in detecting the presence of narcotics (TR 63-64). I also agree with Magistrate Judge Thalken that a train compartment has enough in common with an automobile that, like an automobile, a train compartment can be searched without a warrant once probable cause is established under the "automobile exception." See California v. Carney, 471 U.S. 386, 390-93 (1985), and Chambers v. Maroney, 399 U.S. 42, 52 (1969)
That conclusion does not end the analysis because Damen also objects to Magistrate Judge Thalken's Report and Recommendation because it does not specifically address whether the Omaha investigators acted lawfully when they opened the package that they suspected contained drugs. Damen argues that Lutter did not have the right to open the vacuum-sealed bag without a warrant, citing United States v. Chadwick, 433 U.S. 1 (1977), and United States v. Barry, 853 F.2d 1479, 1483 (8th Cir. 1988). Damen contends that, as with his luggage, Damen had a legitimate expectation of privacy in the vacuum-sealed bag that was located inside the mechanical apparatus of the reclining chair. The Court is not persuaded by Damen's argument.
In United States v. Ross, 456 U.S. 798 (1982), the Supreme Court addressed the issue of whether a police officer, while involved in a legitimate search of a stopped vehicle, may open closed containers found in the vehicle. The Court pronounced the following rule:
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.Id. at 820 (footnotes omitted) (emphasis added). Certain limitations to the "container rule" were also acknowledged by the Ross Court:
The scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.Id. at 824.
Applying the "container rule" to this case, the Court finds that Lutter was justified in opening the vacuum-sealed plastic bag. Following the police dog's alert, the search was conducted to find controlled substances. The package of Ecstacy was found in a reclining chair, which is a furnishing of the sleeper car and not comparable under Chadwick and Barry to an individual's luggage. The package was vacuum-sealed in plastic in a manner that is consistent with the packaging of controlled substances or other contraband, according to the training and testimony of the Omaha investigators. (TR. at 80, 110, 133). Based on the police dog's alerting to a particular spot on two separate occasions, based on the investigators' training and experience relating to the appearance of the package, and because the package was found in a chair rather than inside Damen's luggage, the Court concludes that the opening of the package was lawful. Accordingly, the Court holds that the opening of the vacuum-wrapped bag was consistent with the Fourth Amendment under the "container rule" announced in Ross. See also United States v. Riedesel, 987 F.2d 1383, 1391-92 (8th Cir. 1993), and United States v. Randle, 67 F. Supp.2d 734, 738-739 (E.D.Mich. 1999). Accordingly, I adopt Magistrate Judge Thalken's findings and conclusions on this issue and supplement them with the Court's discussion herein.
For all the reasons provided in this memorandum, Magistrate Judge Thalken's Report and Recommendation shall be adopted in its entirety, and the motion to suppress shall be denied.
IT IS ORDERED:
1. The Defendant's objections to the Magistrate Judge's Report and Recommendation (Filing No. 22) are overruled;
2. The Magistrate Judge's Report and Recommendation (Filing No. 21) is adopted in its entirety; and supplemented by this Memorandum and Order, and
3. The Defendant's Motion to Suppress (Filing No. 11) is denied.