Enbanc 8th Circ reverses decision excluding drug evidence seized at Omaha bus terminal

Our fave liberal District Judge Battaillon had held taking the luggage from the bus luggage hold to a room and then obtaining the defendant's consent to search violated the defendant's 4th amendment rights. 3 judge panel agreed last year. Now enbanc 8th circuit rules search and seizure was proper. Majority and dissent dispute effect of '84 scotus ruling US v. Jacobsen as to whether there was an initial seizure of the luggage. 10/03/05 United States v. Va Lerie Case No. 03-3394 District of Nebraska [Riley, Author, for the court en banc] Police officer's action in taking defendant's checked luggage from a bus and to a room of the bus terminal in order to seek defendant's consent to search the luggage did not constitute a seizure because the removal did not: (1) delay defendant's travel or significantly impact defendant's freedom of movement, (2) delay the timely delivery of the checked luggage or (3) deprive the bus line of its custody of the checked luggage; further, defendant voluntarily consented to a search of the luggage. District court's order suppressing the seizure of drugs found in the luggage is reversed, and the case is remanded for further proceedings. Judge Wollman, concurring. Judge Colloton, joined by Judge McMillian, Judge Arnold, Judge Bye and Judge Smith, dissenting.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, 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.” Id. 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.” Id. 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.” Id. 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. seizure standardthe 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 (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); Jacobsen, 466 U.S. at 124-25 (stating “the field test [of the white substance] did affect 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”); issue: whether taking the baggage from the bus hold to the back room constituted a seizureArmed 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.holding: No "seizure" occurredWe 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 occurredWas the Defendant's consent to search effectiveBecause 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 (1973); United States v. Brown, 345 F.3d 574, 579 (8th Cir. 2003).dig at judge battaillonWithout 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.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. See, e.g., Brown, 884 F.2d at 1311-12 (holding airline passenger voluntarily consented to a search of his checked luggage). COLLOTON, Circuit Judge, with whom McMILLIAN, 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 (1984). I therefore respectfully dissent.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 a non-public room in the bus station, where three or four investigators were present. United States v. Va Lerie, No. 8:03CR23, 2003 WL 21956437 (D. Neb.Aug. 14, 2003), at *1, 4; United States v. Valerie, 2003 WL 21953948 (D. Neb. June10, 2003), at *1 (report and recommendation). They did so for the purpose offurthering their law enforcement investigation of potential drug trafficking by summoning Va Lerie and seeking his consent to search the luggage. Valerie, 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.The Supreme Court did not regard the initial seizure in Jacobsen as a close question: The DEA’s possession and control of the package “clearly constituted a ‘seizure.’” 466 U.S. at 120 n.18 (emphasis added). This although the Jacobsens were merely intended recipients who had never actually possessed the package, the initial seizure would have occasioned no delay in delivery, and the package was examined by a government agent at the invitation of Federal Express, in the office of the private carrier, in the same manner that Federal Express previously had examined it. Jacobsen must be our guiding light. Absent a revision of doctrine by the Supreme Court, the NSP investigators effected a “seizure” of Va Lerie’s bag, and the order of the district court should be affirmed.