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21 F.3d 1035

Docket No. 93-2026.

United States v. Houston

Tenth Circuit Court of Appeals

Decided April 20, 1994.

Tenth Circuit Court of Appeals · decided 1994-04-20

Cited by 16 later decisions — most recently March 2006

8 federal appellate · 3 district ·

2 counsel of record

Key passage — most relied on by later courts

“to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.”

quoted by 4 later decisions, including United States v. Sandoval, United States v. Villota-Gomez

“No single factor dictates whether a seizure has occurred.”

quoted by 3 later decisions, including United States v. Sandoval, United States v. Harfst

Applies 21 U.S.C. § 841 (§ 401 of the Controlled Substances Act)

Relies on United States v. Sokolow · Florida v. Bostick · United States v. Place

Good law ✅— No negative treatment on recordhow we know

Opinion by Stephen Hale Anderson · Decided 1994-04-20

View the full empirical analysis of this case →

¶1*1036James- R. Scarantino, Albuquerque, NM, for defendant-appellant.

¶2David N. Williams, Sr. Litigation Counsel (Don J. Svet, U.S. Atty., and Rhonda P. Backinoff, Asst. U.S. Atty., on the brief), Albuquerque, NM, for plaintiff-appellee.

¶3Before MOORE, FEINBERG,* and ANDERSON, Circuit Judges.

¶5STEPHEN H. ANDERSON, Circuit Judge.

¶6Defendant Duane Douglas Houston entered a conditional guilty plea to charges of possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). He now appeals the district court’s denial of his motion to suppress evidence seized from his luggage following an encounter with Drug Enforcement Agency (DEA) officers aboard a train stopped in Albuquerque, New Mexico. We abated this appeal pending the court’s in banc decision in United States v. Little, 18 F.3d 1499 (10th Cir.1994) (en banc), and now affirm.

¶7BACKGROUND

¶8On May 6, 1992, DEA agents Samuel Candelaria and James Torres received information that two individuals aboard the Amtrak train due to arrive in Albuquerque from Flagstaff had made reservations the night before and had bought tickets with cash just prior to the train’s departure, one for a private roomette and one for a coach seat. Agent Candelaria obtained a copy of the reservation, which was in the name of Duane Douglas, and which had a call-back telephone number which, when Candelaria called it, was disconnected.

¶9From the descriptions provided by the informant, agents Candelaria and Torres were able to identify the two individuals when the train arrived. They observed the two men, Houston and his traveling companion, leave the train and go to a pay telephone on the train platform, from which Houston, after removing a wallet from his pocket, placed a telephone call. Agent Torres was close enough to overhear the conversation, in which Houston apparently called someone with a pager, told the listener when he would arrive in Chicago and asked to be picked up.1 While Torres was observing Houston, Agent Candelaria walked past Houston’s private roomette on the train and saw a large suitcase inside the roomette.

¶10After Houston returned to his roomette, Torres went to the roomette, stood to the side of the open door and identified himself to Houston. He asked permission to speak to Houston and, when Houston consented, proceeded to ask a series of questions. Torres asked if Houston was traveling by himself and Houston said he was. Upon request, Houston produced his ticket with the name Duane Douglas on it. When asked for a picture ID, Houston said he had no identification on him. Torres then asked him *1037if he was carrying any contraband or narcotics, to which Houston responded negatively, upon which Torres asked if he could search his luggage. Houston refused to give consent to search the luggage. When asked if he would consent to having a dog sniff the luggage, Houston responded “I guess, I don’t know.” Tr. of Tape, Appellee’s Br.App.A. Torres asked Houston how long ago he had made his reservations, and he responded “[a] few days ago.” Id.When asked if there was a phone number on his reservation, Houston responded “it should be on the ticket” and then, when asked for his phone number, gave a phone number different from the number on the ticket. Id.When pressed by Torres, Houston continued to refuse consent to have a dog sniff his luggage.

¶11At that point, Torres told Houston he was going to take his luggage and subject it to a dog sniff, because he believed it contained contraband based on: the fact that Houston had said he had made his reservations a few days ago when Torres knew he had in fact made them the day before; the difference between the phone number on the ticket and the phone number Houston gave him; and his claim that he was traveling alone when Torres knew he was traveling with another man. Throughout the encounter, other passengers passed back and forth in the aisle in which Torres stood.

¶12Houston accompanied his luggage to the public area of the train, where a dog alerted to the large suitcase. The agents obtained a search warrant and found approximately 54 pounds of marijuana. Houston’s motion to suppress the marijuana was denied, he entered a conditional plea of guilty and now appeals the denial of his suppression motion.

¶13DISCUSSION

¶14When reviewing the denial of a motion to suppress, we review the district court’s factual findings under the clearly erroneous standard. United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (en banc); United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.1994). We review de novo the ultimate determination of reasonableness under the Fourth Amendment. Little, 18 F.3d at 1503.

¶15The district court held that the officers had articulable suspicion both to briefly detain and question Houston in his roomette, and to subsequently briefly seize and detain his luggage to submit it to a dog sniff. We hold that articulable suspicion was not required to question Houston in his roomette, as the encounter was consensual under Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), and our cases interpreting Bostick. We further hold that articulable suspicion to briefly detain Houston and his luggage developed during that consensual encounter. We therefore affirm the denial of Houston’s motion to suppress.

¶16To determine whether a police-citizen encounter is consensual or not “a court must consider all the circumstances' surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Id.501 U.S. at -, 111 S.Ct. at 2389; see also Little, 18 F.3d at 1503. As we observed in Little, the test is both objective and fact-specific. Little, 18 F.3d at 1503. No single factor dictates whether a seizure has occurred.

¶17We hold that the encounter between Houston and Torres was consensual. Torres alone approached Houston’s roomette, the door to which was open. He was in plain clothes, did not display a weapon, and briefly examined and returned Houston’s ticket. Houston has not argued that Torres’ demeanor or tone of voice were threatening or coercive, or that Houston did not understand Torres’ questions. Torres asked Houston a series of routine questions, during which Houston specifically refused consent to a search of his luggage. Under these circumstances, a reasonable person would have felt free to decline Torres’ requests or otherwise terminate the encounter. See United States v. Zapata, 997 F.2d 751, 756-57 (10th Cir.1993); United States v. Laboy, 979 F.2d 795, 799 (10th Cir.1992).

¶18Houston argues that, even if the encounter between Torres and Houston did not implicate the Fourth Amendment, Torres did not develop articulable suspicion to seize Hous*1038ton’s bag and subject it to a dog sniff. He argues that the district court made no findings about the bag itself, other than the fact that an officer had observed the large bag in the small roomette, and any suspicions Torres may have had about Houston himself are not automatically transferable to the bag. We disagree.

¶19A law enforcement officer may seize and briefly detain a traveler’s luggage if the “officer’s observations lead him reasonably to believe that [the] traveler is carrying luggage that contains narcotics.” United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983); see also United States v. Hall, 978 F.2d 616, 620 (10th Cir.1992). In determining whether the officer had a reasonable suspicion, we consider the totality of the circumstances to see if the officer had a “minimal level of objective justification,” something more than an “inchoate and unparticularized suspicion or hunch.” Hall, 978 F.2d at 620; see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). We hold that reasonable suspicion to detain both Houston and his bag developed during the encounter between Torres and Houston.

¶20As the district court found, Houston “made statements [to Torres] which added to a string of untruths.” R.Vol. II, Tr. of Mo. Hr’g. at 99. Houston first said he was traveling alone; he later admitted, and Torres already knew, that he had a traveling companion. There was a discrepancy, which Torres also knew about, between the disconnected phone number on Houston’s reservation and the phone number he gave Torres. Additionally, the district court noted that Torres had observed Houston with a wallet, yet Houston told Torres that he had no identification. There is no evidence that these factual findings by the district court were clearly erroneous. Additionally, although the district court made no factual finding on this point, the evidence is undisputed that Torres knew that Houston’s reservation had been made the day before, whereas Houston told Torres it had been made a few days ago.

¶21This “string of untruths” provided Torres with articulable suspicion to briefly detain Houston and his luggage to investigate them further, which the officers promptly did by subjecting Houston’s luggage to a dog sniff. See Sokolow, 490 U.S. at 8-9, 109 S.Ct. at 1585-86 (payment of cash for airplane tickets, traveling under an alias, and traveling from Honolulu to Miami and back in the space of three days provided articulable suspicion to briefly detain traveler and subject luggage to dog sniff).2

¶22For the foregoing reasons, we AFFIRM the district court’s denial of Houston’s motion to suppress.

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