United States v. Harvey

United States v. Harvey.

961 F.2d 1361 (8th Cir. 1992).

UNITED STATES of America, Appellee,


Melissa Ann HARVEY, Appellant.





Lisa Marie FLAGELLA, Appellant.

Nos. 91-2773, 91-2922.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 10, 1991. Decided April 16, 1992.

Philip Friedman, Erie, Pa., argued, for appellants.

Sandra Wilson Cherry, Asst. U.S. Atty., Little Rock, Ark., argued, for appellee.

Before LAY, Chief Judge, WOLLMAN, Circuit Judge, and HANSEN Circuit Judge.


Melissa Ann Harvey and Lisa Marie Flagella appeal from the district court’s denial of their motions to suppress evidence. We affirm.


Harvey and Flagella were traveling across the country on a Greyhound bus when the bus stopped at the North Little Rock, Arkansas, Greyhound bus station for cleaning and refueling, the passengers were told that they could exit the bus. Harvey and Flagella and other passengers did so.

Two Little Rock police detectives were monitoring the bus station for illegal narcotics smuggling. Along with a narcotics-sniffing dog, named Jupp, they inspected the baggage area in the underbelly of the bus and found no narcotics. The detectives and Jupp then boarded the bus. According to one of the detectives, as Jupp was walking down the aisle he lifted “his head and … sniff[ed] high” indicating “that the odor of narcotics [was] above his head level.” At that point, the detectives opened some of the doors to the overhead baggage area, removed some of the bags, placed them at Jupp’s level, and allowed Jupp to sniff them. Jupp “alerted” to two bags. The detectives then returned all of the bags to the overhead storage area and exited the bus.

The overhead baggage area was described as similar to those found on airplanes. Unlike airplanes, however, the baggage area is not compartmentalized; there are no inner walls dividing the baggage area into individual compartments. Thus, the overhead area is really one large compartment, with individual doors above the seats. These doors cannot be locked to the exclusion of other


Harvey, Flagella, and the other passengers then returned to their seats on the bus. Before the bus departed, the detectives re-boarded, retrieved one of the bags to which Jupp had alerted, and asked the owner to identify himself. Flagella admitted that it was her suitcase, whereupon the detectives asked her to take it and wait outside the bus. The detectives repeated the procedure with the second bag, which was claimed by Harvey.

Once off the bus, the detective asked for and received permission from Flagella to search her bag. As the detective reached for her suitcase, however, Harvey intervened and requested that the detectives first obtain a search warrant. Flagella agreed. The women were subsequently advised of their rights and transported to the police station.

Once at the police station, appellants were placed in an interview room and informed that a search warrant would be obtained. After waiting a short time, appellants consented to a search of their bags. Uneasy with this change in attitude, the officers asked their superior officer to enter the room and he did so. After being read their rights once again, both appellants consented to a search of their bags so that, in their words, they “could get out of the room.” The officers searched the bags and discovered that each bag contained approximately five pounds of marijuana.

Harvey and Flagella moved to suppress the marijuana on the ground that it was   obtained in violation of their Fourth Amendment rights. The district court denied these motions, and Harvey and Flagella entered conditional pleas of guilty, subject to their right to appeal the denial of the motions to suppress. Fed.R.Crim.P. 11(a)(2).

Appellants first argue that a dog sniff is a search and that some degree of individualized suspicion is required to satisfy the requirements of the Fourth Amendment. We disagree.

The Fourth Amendment protects the “right of people to be secure in their persons, houses, papers, and effects, against   unreasonable   searches   and seizures.”   U.S. Const, amend. IV.   “A ‘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, 1656, 80 LEd.2d 85 (1984) (citations omitted).    In United States v. Place, 462 U.S. 696,103 S.Ct. 2637,   77   L.Ed.2d   110   (1983),   the Supreme Court stated that: [Tjhe canine sniff is sui generis.   We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore,   we   conclude   that   the particular course of investigation that the agents intended to pursue here-exposure   of   respondent’s   luggage, which was located in a public place, to a trained canine-did not constitute a “search” within the meaning of the Fourth Amendment. Id. at 707, 103 S.Ct. at 2644. Appellants contend that this language is mere dictum and thus has no bearing on the resolution of their appeal.

“Whether or not the statement in Place was a holding or dictum, the Supreme Court has clearly directed the  lower courts  to  follow  its  pronouncement.” United States v. Beale, 736 F.2d 1289, 1291 (9th Cir.), cert, denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984).   In Jacobsen, 466 U.S. at 123,

104 S.Ct. at 1661, the Court clearly treated the language in  Place as a holding:    “the [Place] Court held that subjecting luggage to a ‘sniff test’ by a trained narcotics detection dog was not a ‘search’ within the meaning of the Fourth Amendment.”


The essence of the Supreme Court’s expositions in Place and Jacobsen, which  we  apply  here,   is that the investigative technique employed here is not considered to be a “search” since (1) it discloses only the presence or absence of a contraband item, and (2) its use “ensures that the owner of the property is not subjected to the embarrassment   and   inconvenience entailed in less discriminate and more intrusive investigative methods.” Beale, 736 F.2d at 1291 (quoting Place, 462 U.S. at 707,103 S.Ct. at 2644).

We conclude that Jupp’s sniff did not constitute a search and thus did not implicate the Fourth Amendment. First, the canine sniff intruded upon no legitimate privacy interest because it could reveal nothing about noncontraband items. Jacobsen, 466 U.S. at 123-24, 104 S.Ct. at 1662. Second, the canine sniff did not require any contact with the owners of the unattended baggage. [FN2] The canine sniff did not cause the appellants to be detained or inconvenienced, and there is no evidence that it caused any annoyance or embarrassment. Beale, 736 F.2d at 1291-92 (citations omitted). Third, defendants have no reasonable expectation of privacy in the ambient air surrounding their luggage, and that is all that Jupp invaded.

FN2. Here, as in Beale and United States v. Colyer, 878 F.2d 469 (D.C.Cir.1989), “we are not confronted with a case in which the detection dog conducted a sniff of a person rather than an inanimate object, or a sniff of luggage that a person was carrying at the time.” Beale, 736 F.2d at 1291 (footnotes omitted).

Appellants next argue that even if the canine sniff is not a search, the initial removal of their bags from the overhead baggage area, constituted a seizure. We disagree.

In Jacobsen, the court defined seizures of   property   as   “some   meaningful interference    with    an    individual’s possessory interests in that property.” 466 U.S. at 113, 104 S.Ct. at 1656. [This] definition follows from our oft-repeated definition of the “seizure” of a person within  the  meaning  of the Fourth    Amendment—meaningful interference, however brief, with an individual’s freedom of movement. Id. at n. 5.

We first point out that when Jupp stopped and “air sniffed” while moving down the aisle, the detectives had a reasonable suspicion that contraband existed in the overhead baggage area. We further note that we are not here confronted with a situation where the defendants’ baggage was taken directly from their custody to facilitate the canine sniff test. See Place, 462 U.S. 696, 699, 103    S.Ct.    2637,    2640.        Rather, appellants’ baggage was moved from one public area, the overhead baggage area, to another, the aisle.   Appellants had left their baggage unattended, and the  temporary   removal   of  the  bags caused no delay to appellants’ travel. See United States v. Lovell, 849 F.2d

910,  916  (5th  Cir.1988)  (no  seizure occurred when DBA agents removed bags from conveyor belt);    see also United States v. Riley, 927 F.2d 1045, 1048 n. 4 (8th Cir.1991) (dictum) (court suggests exposing “checked baggage to a trained sniffing dog may be no seizure at all”).     Indeed,  appellants do not suggest that they were aware that the canine sniff was taking place, nor that their travel would have been interrupted had Jupp not detected the contraband. See    generally,    United    States   v. Germosen-Garcia,   712   F.Supp.   862, 866-71  (D.Kan.1989) (thorough review

of  Fourth Amendment doctrine as it relates to canine sniff tests).   In short, because   there   was   no   meaningful interference with appellants’ possessory interests in their baggage, we hold that no seizure occurred.

The dissent suggests that physically removing the baggage from the overhead compartment and placing it in the aisle in order to facilitate the canine sniff test was in fact a “search” that must rest upon probable cause. See Arizona v. Hicks, 480 U.S. 321, 324-25, 107 S.Ct. 1149, 1152, 94 LEd.2d 347 (1987) (moving of the equipment was a “search” separate and apart from the search that was the lawful objective of entering the apartment under exigent circumstances and thus required probable cause to invoke the “plain view” doctrine). We disagree.

First, Hicks is distinguishable from the facts in our case.  Here, the removal of the    baggage   from    the    overhead compartment was completely related to the   lawful   purpose   for   which   the detective   boarded   the   bus.      After boarding  the  bus  and   seeing  Jupp “alert,”    the   detective   clearly   had reasonable suspicion to conclude that narcotics were located somewhere in the overhead compartment. Passengers have    no    objective,    reasonable expectation that their baggage will never be moved once placed in an overhead compartment.   It is not uncommon for the bus driver or a fellow passenger to rearrange the baggage in the overhead compartment or to temporarily remove the baggage and place it in a seat or in the aisle  in  order to  rearrange  and maximize    the    use    of    limited compartment space. Unlike Hicks, here the   movement   of   the   unattended luggage    revealed    nothing    of independent evidentiary value, while in Hicks the movement of the stereo set revealed   its   serial   number   to   the searching officer who later used the number to tie the component to its theft.

Second, postal authorities acting upon reasonable    suspicion    have    been permitted to physically seize and remove items in the mail that are believed to contain narcotics and subject the items to canine drug sniffs. See United States v. Aldaz, 921 F.2d 227 (9th Cir.1990) (postal authorities who had reasonable and articulable    suspicion    that   the defendant was using the mail for drug trafficking permitted to physically remove and detain the packages and subject them to canine drug sniffs);     United States v.  Lux,  905  F.2d  1379  (10th Cir.1990) (authorities permitted to seize

and remove an “Express Mail” package for the purpose of a canine drug sniff when the authorities were acting upon reasonable    suspicion    of    criminal activity).       We   see   no   meaningful distinction between these mail cases and our situation; in fact, the temporary removal of the luggage by the detective was    even    less    intrusive    to   the defendants in this case.

The orders denying the motions to suppress are affirmed.