United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1972

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United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Virginia Pena-Saiz, *

*

Appellee. *

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Submitted: October 20, 1998

Filed: December 8, 1998

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Before BOWMAN, Chief Judge, BRIGHT and RICHARD S. ARNOLD, Circuit

Judges.

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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

stop. The government asserts that Pena-Saiz consented to the search. The district

court rejected that contention. We agree and affirm.
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I. BACKGROUND

On June 13, 1997, after deplaning from a flight from El Paso, Texas, Virginia

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 concluded

in the airport's drug interdiction office, the officers questioned Pena-Saiz, reviewed her

driver's license 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 officers

could open it and review its contents. Pena-Saiz followed the officers to the

interdiction office, traveling to the escalator, which was 200 feet from the baggage

claim area, upstairs, behind a pair of doors, and down a hallway. During the trip to,

and within, the interdiction office and, in fact, throughout the entire encounter, the

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

odd bulges in Pena-Saiz' clothing. Nonetheless, the officers persisted. They twice

asked Pena-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

people's bags, we pat search people. This is what we do everyday." R. at 32. Upon

Pena-Saiz' third refusal, the officers allegedly told Pena-Saiz that she was under arrest.

Believing 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-Saiz' breast area an elastic bandage covering a bundle of white powder, which

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. The

Honorable Joseph F. Bataillon, United States District Judge for the District of

Nebraska, found that, by the time that the officers finished searching Pena-Saiz' gift,
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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

district court found that Pena-Saiz had not given her consent. Additionally, the court

found that the officers had no reasonable articulable suspicion to continue pressing

Pena-Saiz for a pat-down search because their earlier questioning and searches had not

uncovered any drugs or contraband. The United 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 the

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 whether

reasonable articulable suspicion exists to justify a search. Id.

We begin by evaluating the issue of seizure. A seizure occurs when, in the

totality of the circumstances surrounding the encounter, a reasonable person would

believe that she is not free to leave. United States v. Thompkins, 998 F.2d 629 (8 Cir. th

1993). Seizing luggage without asking consent, or in spite of a suspect's refusal to

consent, or compelling a suspect to go to an interdiction room constitutes a show of

authority and creates a reasonable belief that the suspect is not free to leave. See, e.g.,

Florida v. Royer, 460 U.S. 491, 501 (1983) (finding that an encounter became an arrest

when the police asked the suspect to go to an interdiction room while retaining his

ticket and identification); United States v. Dixon, 51 F.3d 1376, 1380 (8 Cir. 1995) th

(holding that a consensual encounter became a seizure when police informed the

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, despite the suspect's refusal to consent
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to a bag search, the police informed the suspect that his bag would be detained until a

police dog arrived). 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

that she was free to leave or to refuse to respond to their questions, and instead

essentially told her that the officers had a right to conduct 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 the

bounds of a permissible Fourth Amendment search, the officers in this case needed

either reasonable articulable 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

articulable suspicion as a basis for the search; nonetheless, we determine that the

officers possessed no such basis. Reasonable articulable suspicion must be more than

a hunch. Terry v. Ohio, 392 U.S. 1, 27 (1968). In this case, the officers' searches and

questioning had turned up nothing. There were no strange bulges in Pena-Saiz' clothing

or anything to indicate that she was engaged in drug activity. Thus, the officers

possessed no reasonable articulable suspicion to continue harassing Pena-Saiz for

consent to a pat-down search.

We turn to the alleged consent. The voluntariness of consent raises a fact

question, to be determined from the totality of the circumstances, and subject to review

for clear error. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Hathcock, 103

F.3d at 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-
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Saiz believed that she was under arrest and that she had to submit to the pat-down

search. 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 pat search people. This is what we do everyday." R. at 32. The officers

persisted in their requests, and did not tell Pena-Saiz that she was free to leave. Thus,

the record supports the district court's finding that, under the totality of the

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 of

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.