## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1972

___________ United States of America, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. Virginia Pena-Saiz, * * Appellee. *

___________ Submitted: October 20, 1998 Filed: December 8, 1998

___________ Before BOWMAN, Chief Judge, BRIGHT and RICHARD S. ARNOLD, Circui t Judges.

___________ BRIGHT, Circuit Judge.

The United States appeals the district court’s grant of Virginia Pena-Saiz' motion to suppress evidence that was obtained in a pat-down search during an investigatory st op. The government asserts that Pena-Saiz consented to the search. The distric t court rejected that contention. We agree and affirm.-2- I. BACKGROUND

On J une 13, 1997, after deplaning from a flight from El Paso, Texas, Virgini a Pena-Saiz was stopped by three narcotics officers at Omaha's Eppley Airfield. During the twenty-one minute encounter, which began in the baggage claim area and c oncluded in the airport's drug interdiction office, the o fficers questioned Pena-Saiz, reviewed her driver's li cense and plane ticket, searched her duffel bag, found within the bag a wrapped gift, and asked to take the gift to the interdiction office so that the officer s could open it and review its contents. Pena-Saiz followed the officers to th e int erdictionoffice, traveling to the escalator, which was 200 feet from the baggag e claim area, upstairs, behind a pair of doors, and down a hallway. During the trip to , an dwithin, the interdiction office and, in fact, throughout the entire encounter, th e officers never informed Pena-Saiz either that she was free to leave or that she did not have to answer their questions. The officers neither found any drugs in Pena-Saiz' bag and gift, nor observed any oddbulges in Pena-Saiz' clothing. Nonetheless, the officers persisted. They twic e asked Pen a-Saiz for her consent to a pat-down search. When she did not accede, the officers told her "This is our job. This is what we do. We talk to people, we search peopl e's bags, we pat search people. This is what we do everyday." R. at 32. Upon Pena-Saiz' third refusal, the officers allege dly told Pena-Saiz that she was under arrest. B e lieving that she had no choice, Pena-Saiz told the officers to "do what you have to do." Id . One of the officers proceeded with the pat-down search and discovered on Pena-Sai z' breast area an elastic bandage covering a bundle of white powder, whic h later tested positive for

cocaine. Pena-Saiz was arrested and charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

Pena-Saiz successfully moved for suppression of the drug evidence. Th e Honora ble Joseph F. Bataillon, United States District Judge for the District o f Nebraska, found that, by the time that the officers finished searching Pena-Saiz' gift,-3-

the encounter had become an investigatory stop that required any further searches to be supported either by Pena- Saiz' consent or by reasonable articulable suspicion. The dist rict court found that Pena-Saiz had not given her consent. Additionally, the court fou ndthat the officers had no reasonable articulable suspicion to continue pressin g Pena-Saiz for a pat-down search because their earlier questioning and searches had not uncovered any drugs or contraband. The Uni ted States appeals, arguing that the entire encounter, including the pat-down search, was consensual.

II. DISCUSSION

In assessing the validity of the encounter and pat-down search, we review th e historical facts for clear error and the ultimate legal conclusions de novo. United States v. Hathcock , 103 F.3d 714, 718 ( 8 Cir.), cert. denied , 117 S. Ct. 2528 (1997). Thus, th
we review for clear error the district court's findings on the issue of consent. Id. By contrast, we review de novo the issues of whether a seizure occurred and whethe r reasonable articulable suspicion exists to justify a search. Id.

We begin by evaluating the issue of seizure. A seizure occurs when, in th e to tality of the circumstances surrounding the encounter, a reasonable person woul d believe that she is not free to leave. United States v. Thompkin s , 998 F.2d 629 (8 Cir. th 1993). S eizing luggage without asking consent, or in spite of a suspect's refusal t o consent, or compelling a suspect to go to an interdiction room constitutes a show o f authority and creates a reasonable belief that t he suspect is not free to leave. See, e.g. , Florida v. Royer , 460 U.S. 491, 501 (1983) (finding that an en counter became an arrest whenthe police asked the suspect to go to an interdiction room while retaining hi s ticket and identification); United States v. Dixon , 51 F.3d 1376, 1380 (8 Cir. 1995) th (holding t hat a consensual encounter became a seizure when police informed th e suspect that he and his duffel bag would be detained until a police dog arrived to sniff the bag); United States v. Green , 52 F.3d 194, 197-98 (8 Cir. 1995) (concluding that th a consensual encounter became a seizure when, despi te the suspect's refusal to consent-4-

to a bag search, the police informed the suspect that his bag would be detained until a police dog arrive d). Here, by the time the parties arrived in the interdiction room, the seizure of Pena-Saiz had occurred. Although, according to her testimony, Pena-Saiz had given permission only to x-ray the contents of her gift, the officers took the gift to the interdiction room for unwrapping and rewrapping. Pena-Saiz had no choice but to follow the officers to the room a significant distance away. Once inside the interdiction room, Pena-Saiz felt "very intimidated," as the officers did nothing to assure Pena-Saiz thatshe was free to leave or to refuse to respond to their questions, and instea d essentially told her that the officers had a right to c onduct the pat-down search because it was their daily duty. Under the totality of those circumstances, a reasonable person would have believed that she was not free to leave. For this reason, we determine that Pena-Saiz was subject to a seizure protected by the Fourth Amendment.

We turn to the constitutionality of the pat-down search. To come within th e boun ds of a permissible Fourth Amendment search, the officers in this case neede d either reasonable art

iculable suspicion or Pena-Saiz' consent. United States v. Green , 52 F.3d 194, 197-98 (8 Cir. 1995). The government does not claim any reasonable th art iculablesuspicion as a basis for the search; nonetheless, we determine that th e officers possessed no such basis . Reasonable articulable suspicion must be more than a hunch. Terry v. Ohio , 392 U.S. 1, 2 7 (1968). In this case, the officers' searches and questioning had turned up nothing. There were no strange bulges in P ena-Saiz' clothing
or anyt hing to indicate that she was engaged in drug activity. Thus, the officer s possess edno reasonable articulable suspicion to continue harassing Pena-Saiz fo r consent to a pat-down search.

We turn to the alleged consent. The voluntariness of consent raises a fac t question, to be determined from the totality of the circ umstances, and subject to review for clear error. Schneckloth v. Bust amonte , 412 U.S. 218, 227 (1973); Hathcock , 103 F. 3dat 720. Consent is not voluntary when it is the product of duress or coercion , either express or implied. Schneckloth , 412 U .S. at 227. The record shows that Pena--5-

Saiz believed that she was under arrest and that she had to submit to the pat-dow n sear ch. The officers did nothing to allay her fears but, rather, told her the opposite , informing Pena-Saiz that "This is what we do. We talk to people, we search people's bags, we p at search people. This is what we do everyday." R. at 32. The officer s persisted in their requests, and did not tell Pena-Saiz that she was free to leave. Thus, the recor d supports the district court's finding that, under the totality of th e circumstances, Pena -Saiz did not voluntarily consent to the pat-down search, and that the search resulted from an unlawful investigatory stop

. See Green , 52 F.3d at 197-98.

III. CONCLUSION Having determined that the officers violated the Fourth Amendment rights o f appellee Pena-Saiz with respect to the pat-down search, we affirm the district court's grant of Pena-Saiz' motion to suppress the evidence unlawfully seized. A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.