Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-1994

United States of America v. Kim
Precedential or Non-Precedential:

Docket 93-1726




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                    _______________________

                           No. 93-1726
                     _______________________


                    UNITED STATES OF AMERICA

                                  v.

                         YONG HYON KIM,

                                          Appellant

                     _______________________

         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
               (D.C. Crim. Action No. 93-00087-01)
                     _______________________

                    Argued: February 15, 1994

              Before: BECKER, HUTCHINSON and COWEN,
                          Circuit Judges

                     (Filed   June 30, 1994)

                     _______________________


John Rogers Carroll, Esq. (argued)
Carroll & Carroll
400 Market Street, Suite 850
Philadelphia, PA 19106

          Counsel for Appellant

Michael J. Totko
  United States Attorney
Barbara L. Miller (argued)
  Assistant United States Attorneys
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

          Counsel for Appellee




                                  1
                     _______________________

                       OPINION OF THE COURT
                     _______________________



COWEN, Circuit Judge.
           Yong Hyon Kim ("Kim") appeals from the judgment of

conviction and sentence entered on July 19, 1993 by the United

States District Court for the Eastern District of Pennsylvania.

Kim was convicted in the district court of possessing with the

intent to distribute six kilograms of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and sentenced to a term of

imprisonment of 300 months.   Kim contends that the district court

erred in denying his motion to suppress evidence of drugs

allegedly seized in violation of the Fourth Amendment and in

applying a two-level sentencing enhancement for obstruction of

justice.   As this is an appeal from a final judgment of the

district court, we have jurisdiction under 28 U.S.C. § 1291.    We

reject Kim's arguments and will affirm the conviction and the

sentence imposed.



                                I.

           Kim is a thirty-nine-year-old adult male.   He was born

in Korea but subsequently immigrated with his family to the

United States at the age of seventeen.   Prior to the occurrence

of the events that gave rise to the indictment against him, Kim

had continuously lived in the United States for twelve

consecutive years and attended South Philadelphia High School.



                                2
This background indicates, and Kim does not deny, that Kim

understood and spoke English well during his encounter with the

police, which is at issue in this appeal.

            On August 26, 1992, DEA Special Agent Kevin Small

("Small") observed Kim and his friend, Song Youn ("Youn"), on an

Amtrak train when it stopped at the Albuquerque station.      This

Amtrak train normally travels between Los Angeles and Chicago. It

regularly leaves Los Angeles eastbound during the evening,

crosses the deserts of Southern California and Arizona during the

night, and enters New Mexico the following morning.    Shortly

after noon, the train makes a scheduled stop in Albuquerque.      Law

enforcement officials believed that this route was employed by

drug dealers to traffick drugs from Los Angeles back to the

eastern area.    Small, together with other law enforcement

officials, was involved in several prior investigations and

searches on the train in an effort to interdict drugs.

            During a train stop on August 26, 1992, Small,

accompanied by Sam Candelaria ("Candelaria"), a local police

officer on the DEA task force, went to roomette number 12,

occupied by Kim and Youn.    A roomette in a sleeper car costs more

than a coach seat and affords somewhat more privacy than other

accommodations.    Roomette 12, however, was located in a busy area

of the train.    It was only ten feet from the entrance to the

sleeper car, next to the luggage storage room, and two feet from

a stairwell leading to the upper floor of the sleeper car.

            Small knocked on the door to Roomette 12 and Kim opened

the door.    Youn was inside with Kim.   Shortly before this time,


                                 3
Small activated a concealed recorder to record any conversation

that he may have with the occupants of the roomette.      Candelaria

was working with Small, but was out of sight, having stationed

himself around the corner of the train corridor.      Small said in a

polite and conversational tone, "How are you guys doing?      I'm

with the police department."    Small bent slightly to show his

badge to Kim and Youn who were seated, then knelt in the hallway.

At that time Small did not block the doorway or enter the

roomette.    He remained outside in the hallway in a kneeling

position.

            Small began to ask several questions, including their

point of origin, destination, and place of residence.      Kim

readily responded to the questions.    Small asked if he could see

their tickets.    Youn produced two tickets in the name of Yong Kim

and Terry Park.    While Youn was showing the tickets, Small asked

how the ride had been.   Youn replied, "Real good."     Small handed

the tickets back to Youn and thanked him.    Small then inquired if

they had any photo identification.    Youn said his name was "Park"

and that he had no picture identification with him, while Kim

said he had.

            At that time, several persons walked past in the train

hallway, talking loudly.    Candelaria, out of sight to Kim and

Youn, waved a piece of paper at Small to inform him that the

train reservation was made in the name of "Wonz."     Small asked to

see the tickets again and handed them back to Youn.

            Small asked about Kim and Youn's luggage.    He told them

that he worked for DEA and that DEA had "problems with people on


                                 4
board trains smuggling drugs out of L.A. back East."       He then

asked, "You guys don't have drugs in your luggage today, do you?"

Kim answered no.   Small asked, "Would you voluntarily consent for

me to search?"   Kim readily replied, "Sure."     At that time,

several persons passed by Roomette 12.      Small then pointed to a

leather bag and asked if it was Kim's.       Kim answered yes.     Youn

also offered to move his bags down for Small, but Small stated

that he wanted to examine the bags one at a time.

          Upon opening the leather bag, Small found six cans of

"Naturade All-Natural Vegetable Protein."       They appeared to be

factory-sealed cans with factory lids which were intact.         Small

asked what it was and what it was for.      Kim replied that it was

vegetable protein and that he did not know what it was because he

"got it for a present."    Small asked where Kim got it.     Kim

replied, "We bought it in L.A."       Small asked Kim if he was sure

what the cans contained.    Kim did not say anything.     Youn

answered, "It's closed."    Small opened one of the cans and asked

Kim who gave them to him.    Kim replied, "The guy in L.A."        Small

asked, "What guy?"   There was no answer.     Small then handed the

can to Candelaria who determined that it contained drugs.          The

agents then placed Kim and Youn under arrest.

          Subsequently it was discovered that Kim made at least

two trips to Los Angeles in an apparent attempt to engage in drug

trafficking, one in July of 1992, the other in August of 1992

during which he was arrested.    Kim was then charged with (1)

possessing with the intent to distribute six kilograms of

methamphetamine in violation of 21 U.S.C. § 841(a)(1), and (2)


                                  5
conspiracy to distribute methamphetamine in violation of 21

U.S.C. § 846.   Before the trial began, Kim made a motion to

suppress the drugs uncovered by Small, contending that Kim was

unconstitutionally seized during the encounter with Small and, in

any event, his consent to search his luggage did not extend to

the sealed cans in the luggage.       The district court denied the

motion.   The jury subsequently convicted Kim of the possession

count, but acquitted him of the conspiracy count.       On appeal, Kim

primarily challenges the denial of his motion to suppress the

methamphetamine.



                               II.

           We first address whether an unconstitutional seizure

occurred when Small encountered Kim.       In reviewing the decision

of the district court, we apply the clear error standard with

respect to the factual findings.       See United States v. Coggins,

, 654 (3d Cir. 1993).       With respect to the ultimate

legal question of whether a seizure occurred, we exercise plenary

review.   

Amendment prohibits unreasonable searches

and seizures.   U.S. Const. amend. IV.     The Supreme Court has

interpreted this amendment as requiring probable cause for making

an arrest, e.g., Hayes v. Florida, 

, 814-16, 105 S.
Ct. 1643, 1646 (1985), and reasonable suspicion of criminal

activity for making an investigative stop, Terry v. Ohio, 

, 30, 

, 1884-85 (1968).




                                  6
          With respect to police conduct that falls short of an

investigative stop, the Supreme Court has made clear that "a

seizure does not occur simply because a police officer approaches

an individual and asks a few questions."   Florida v. Bostick, ___

U.S. ___, ___, 

, 2386 (1991).    "Only when the

officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen may [a court]

conclude that a `seizure' has occurred."   

internal quotation marks omitted).   When an encounter is

consensual, no reasonable suspicion is required.

          In a line of cases starting with United States v.

Mendenhall, 

, 554-58, 

, 1877-79

(1980), to Florida v. Royer, 

, 493-508, 

, 1321-29 (1983) (plurality opinion) and Michigan v.

Chesternut, 

, 573, 

, 1979 (1988), the

Supreme Court indicated that "a seizure occurs when a reasonable

person would believe that he or she is not `free to leave.'"

Bostick, ___ U.S. at ___, 111 S. Ct. at 2386.   Relying on this

language, Bostick, who was questioned by the police in the

"cramped confines" of a bus on which he was to travel, argued

that he was not free to leave and, thus, was seized.    Id. at ___,
111 S. Ct. at 2384-86.

          The Supreme Court clarified in Bostick that the "free

to leave" language makes sense when police attempt to question a

person who is walking down the street or through an airport lobby

as in Royer, but not when, for reasons unrelated to the police
conduct at issue, the defendant is not free to simply walk away.


                               7
Id. at ___, 111 S. Ct. at 2387.       Individuals may have to stay in

their workplace by reason of their employment contract, INS v.

Delgado, 

, 218, 

, 1763 (1984), or

remain in a seat in the bus that was about to depart, Bostick,

___ U.S. at ___, 111 S. Ct. at 2386.      Under these circumstances,

the test is whether a reasonable person would feel free "to

disregard the police and go about his business," id. at ___, 111

S. Ct. at 2386, or ultimately "whether a reasonable person would

feel free to decline the officers' requests or otherwise

terminate the encounter," id. at ___, 111 S. Ct. at 2387, "taking

into account all of the circumstances surrounding the encounter,"

of the encounter at the roomette on a

train brings this case under the rubric of Bostick.      It is

therefore our task to decide whether, under the totality of the

circumstances in the case sub judice, a reasonable person would

have felt free to decline Small's requests or otherwise terminate

the encounter with him.   In our assessment of the encounter, we

must accord all factors an appropriate weight rather than treat

any one factor as dispositive.

          The encounter at issue in this case began with a polite

knock at the door of Kim's roomette.      Small was in plain clothes,

his gun was not visible, nor did he ever display his gun.        When

Kim responded by opening the door, Small commenced the

conversation by asking politely how Kim and Youn were doing and

identifying himself as employed by a police department.      Small

then requested, "Can I talk to you for a second?"      Without


                                  8
hesitation or equivocation, Kim answered, "Yeah."      The

conversation went forward in a normal conversational tone.

Without more, the posture of the encounter indicated that it was

purely consensual.   Kim, however, argues that several factors

made this encounter nonconsensual and a seizure in violation of

the Fourth Amendment.   We will address these arguments in turn.0

          Kim argues that a seizure occurred because the

encounter was in a confined area in a non-public setting, and

because Small blocked the exit.       Of course, "[w]here the

encounter takes place is one factor, but it is not the only one."

0
 Kim relies primarily on two cases of the Court of Appeals for
the Tenth Circuit. Those two cases involved encounters somewhat
similar to that at issue in this case where a seizure was found
in each under a multi-factor balancing test. See generally
United States v. Bloom, 

(10th Cir. 1992); United
States v. Ward, 

(10th Cir. 1992). The authority of
these cases is exaggerated by Kim. In a subsequent case with
somewhat similar facts, the Court of Appeals for the Tenth
Circuit itself, sitting in banc, appears to have modified Bloom
and Ward. United States v. Little, No. 92-2155, 

,
at * 4-5 (10th Cir. Mar. 22, 1994) (in banc). Little held that
Bloom and Ward were overruled to the extent they established a
per se rule that any encounter at a train roomette, without a
specific advisement by the officer that the defendant need not
answer questions, constituted an unlawful seizure because the
location of an encounter is not determinative. 

1, * 4.
          Secondly, we note that any persuasive authority of
those cases is further reduced in this case, by reason of the
inherently fact-oriented, case by case analysis we must conduct.
In cases decided before Bloom and Ward, the Court of Appeals for
the D.C. Circuit found no seizure under strikingly similar
circumstances. See, e.g., United States v. Tavolacci, 

, 1424-26 (D.C. Cir. 1990) (encounter at the door of a
roomette in a sleeper); cf. United States v. Savage, 

, 1116-17 (D.C. Cir. 1989) (encounter at the door to a
roomette became an investigative stop only after forceful,
repeated questioning of Savage). This being the case, we need
not specifically reject any of the analysis in Bloom and Ward,
which addressed different encounters with somewhat different
factual scenarios.


                                  9
Bostick, ___ U.S. at ___, 111 S. Ct. at 2387.    Our inquiry is how

the location of the encounter contributed to a reasonable

person's belief that he was not free to terminate the encounter.

          We believe the location of the encounter in this case

would contribute little to such a belief.   As the Supreme Court

pointed out, "an individual may decline an officer's request

without fearing prosecution," 

refusal to

cooperate, without more, does not furnish the minimal level of

objective justification needed for a detention or seizure," 

in itself does not deprive an individual of his

ability to terminate an encounter; he can reject an invitation to

talk in a private, as well as a public place.0   See also Little,

, at * 3-5.

          Nor do we believe a confined area in a train is

inherently coercive.   Courts have long ago rejected the argument

that "the narrowness and confinement of a train compartment are

inherently isolationist, hence coercive."   United States v.

Brady, 

, 1315 n.5 (D.C. Cir. 1988).    See also United

States v. Hoffman, 

, 23 n.3 (D.C. Cir. 1992) (cramped

conditions alone do not invalidate the otherwise lawful police



0
 We note that the district court found the location of the
encounter was a public place. Kim argues that it was a private
place. We believe the location of the roomette and the bustling
hallway, as described in the next two paragraphs in this opinion,
indicate that the district court's finding was not clearly
erroneous. We do not need to definitively decide the public or
private nature of the location in this case, however, because the
characterization of the location of the encounter as public or
private is not dispositive as to whether the encounter is
consensual.

                                10
conduct); 

; 

.

           Moreover, the district court found that Small did not

in fact block the doorway or exit.     Kim argues that the district

court's finding is clearly erroneous.    We have reviewed the

record and conclude that it is not.0    Small testified that he

knew he was "supposed to [leave] enough room for someone to pass

by [him]," and that he "was not blocking the door."    App. at 91.

This testimony was uncontradicted.     Moreover, the door was open

during the entire encounter.   The roomette was in a well-

trafficked area, only ten feet from the entrance to the sleeper

car, next to the luggage storage room, and two feet from a

stairwell leading to the upper floor of the sleeper car.     Voices

of the passersby could occasionally be heard on the tape.

Directly across from Kim's roomette was the train conductor's

room.   The door to that room was open and the conductor was in

his room during the relevant time period.    The conductor passed

by in front of Kim's roomette several times to speak to

passengers in the hallway.   Kim could see the conductor and

passengers.   Close to Kim's roomette on the same hallway was a
0
 We disagree with the dissent's contrary conclusion. While Kim
testified that Small leaned "on the side of the door" or in the
doorway, that testimony, even if taken as true, did not
contradict the fact that Kim did not block the doorway. Leaning
on the side of a door is not the same as blocking the doorway.
Kim did not say that Small crossed the threshold or leaned inside
the Roomette. See Dissent Typescript at 8 (Small did not lean
"into the compartment."). Even if Kim had said that Small
blocked the doorway, we would still have to uphold the finding of
the district court who is in a better position to evaluate the
testimony of the witnesses and may have made its decision based
on the credibility of the witnesses.


                                11
large family room occupied by four or five people.   Passengers

inside that room watched and heard the encounter.    Finally, the

door to Kim's roomette was a sliding door, which Kim could have

easily closed if he wanted to terminate the conversation.

           Kim argues that these facts notwithstanding, a

reasonable person would not feel free to decline to answer

Small's questions or to shut the door, because "[i]t doesn't take

much intelligence for a reasonable person to believe that

shutting the door in the face of such an intruder would be to

invite more serious intrusion."    Reply Brief for Appellant at 2.

We disagree.   As the Supreme Court stated, "an individual may

decline an officer's request without fearing prosecution."

Bostick, ___ U.S. at ___, 111 S. Ct. at 2387.   We hold that under

the facts of this case, a reasonable person would have felt free

to decline to speak or to terminate his conversation with Agent

Small.   See 

argues that he had a higher expectation of

privacy because he was traveling in a private sleeping

compartment and that a reasonable person would see his roomette

as a safe haven, different from the public coach areas of a

train.   While we recognize the differences between a roomette in

a sleeper car and a seat in the coach area, we do not believe

that Kim's expectation of privacy has any overriding importance

in our analysis as to whether a seizure occurred.    Expectation of

privacy is significant in the analysis of whether consent or
probable cause is required for making a search, see, e.g., Ex

parte Jackson, 

(1878); Katz v. United States, 389


                                  

, 

(1967).    It sheds no light on what is

consent or a consensual encounter.     As far as consent is

concerned, one may consent to an encounter in the privacy of his

own home or in a public square.    See 

, 88 S.

Ct. at 511 ("What a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth Amendment

protection."); Lewis v. United States, 

, 

(1966) (defendant waived his right to privacy in his home by

inviting an undercover agent inside).    The high expectation of

privacy, alone, will not destroy the otherwise consensual nature

of the encounter.0   See Little, 

, at * 5

("expectation of privacy has only a limited relevance").

          Kim contends that Small asked focused and potentially

incriminating questions.   When asked such questions, Kim argues,

"an innocent passenger may well feel obligated to demonstrate

innocence by cooperation," Brief for Appellant at 28, and "a

guilty passenger must feel terrorized and trapped," 

to a question that Small asked: "You guys don't have drugs

in your luggage today, do you?"    First, we do not believe this

question was accusational.   The tone of the question in no way

implied that Small accused or believed that Kim had drugs in his

possession; it was merely an inquiry.

          Secondly, what a guilty passenger would feel and how he

would react are irrelevant to our analysis because "the

0
 Kim's argument based on higher expectation of privacy appears to
be a restatement of his argument based on the location of the
encounter, which we have rejected above. Such a factor, as we
stated, is at most but one factor in our balancing analysis.

                                  13
`reasonable person' test presupposes an innocent person."

Bostick, ___ U.S. at ___, 111 S. Ct. at 2388.   We do not believe

an innocent person would feel compelled to cooperate with police

by some potentially incriminating questions.    In any event,

potentially incriminating questions are permissible.    As the

Supreme Court stated in Bostick:

               The dissent reserves its strongest criticism for

          the proposition that police officers can approach

          individuals as to whom they have no reasonable

          suspicion and ask them potentially incriminating

          questions.    But this proposition is by no means novel;

          it has been endorsed by the Court any number of times.

          Terry, Royer, Rodriguez, and Delgado are just a few

          examples.    As we have explained, today's decision

          follows logically from those decisions and breaks no

          new ground.    Unless the dissent advocates overruling a

          long, unbroken line of decisions dating back more than

          20 years, its criticism is not well taken.

Little, 

, at 6 ("The asking of

`incriminating questions' is irrelevant to the totality of the

circumstances surrounding the encounter.").0

           We therefore hold that potentially incriminating

questions do not by themselves make an encounter coercive.       In so


0
 The dissent cites to several cases decided in or before 1990
prior to Bostick (1991) for a position contrary to the Bostick
language as quoted here. Those cases also conflicted with
Little. We follow the Supreme Court language, and not the cases
cited by the dissent. See Dissent Typescript at 9-10.


                                 14
ruling, we note that Kim cites to only one question, Brief for

Appellant at 28, and thus the case does not present the scenario

of repeated and persistent questioning of an individual, which

was found to constitute an investigative stop in United States v.

Savage, 

, 1117-18 (D.C. Cir. 1989).

            Kim next argues that Small asked his questions in a

"blunt" and "direct" manner which contributed to the coerciveness

of the encounter.   We disagree.    The district court found that

Small's tone was polite and conversational.    After reading the

transcripts of the questions and listening to the tapes

ourselves, we agree with the district court.    Such a tone would

not cause a reasonable person to believe that he was not free to

terminate the encounter.

            Conceding that Small spoke smoothly and politely, Kim

focuses on "the type of questions that the agent asked, rather

than their delivery."    Brief for Appellant at 28-29.   Kim argues

that the questions themselves conveyed the message that Kim and

Youn were being accused of carrying drugs.     We do not read the

questions themselves as indicating any accusation of drug

possession.    To the extent that Kim's argument rests on the types

of questions asked, it is a recharacterization of his argument

that the encounter was a seizure because he was asked

"potentially incriminating questions," which we have already

rejected.

            Kim also bases his seizure theory on the fact that

Small failed to advise Kim of his right to decline the Agent's

requests or terminate the encounter.     While such advice may well


                                   15
be evidence of the consensual nature of an encounter following

the advice, the absence of such advice does not necessarily

eliminate the consensual nature of the encounter.     As the Supreme

Court stated, "[w]hile most citizens will respond to a police

request, the fact that people do so, and do so without being told

they are free not to respond, hardly eliminates the consensual

nature of the response."    

, 104 S. Ct. at

1762-63.     A reasonable person is presumed to know of his right

not to answer questions without fear of prosecution.       See

Bostick, ___ U.S. at ___, 111 S. Ct. at 2387.    Courts have

clearly rejected the "attempt to Mirandize [F]ourth [A]mendment

consents."    United States v. Kikumura, 

, 1093 (3d

Cir. 1990) (citing Schneckloth v. Bustamonte, 

, 227,

, 2047 (1973)).     As a result, we believe that the

failure to advise Kim of his right to terminate the conversation

itself did not make the encounter unconstitutional.

             To the extent that the number of police officers and

the individuals present during the encounter has any relevance to

our analysis, as the court believed in 

(two agents versus one private citizen), and in 

(defendant was alone), we hold that this factor militates

in favor of the government in this case.    During the entire

encounter, Small appeared to Kim to be alone, while Kim was

accompanied by his friend Youn who was present with him.         Another

police officer was out of sight to both Kim and Youn.

              For the foregoing reasons, we reject Kim's

contentions.     After reading the transcript of the conversation


                                  16
between Kim and Small, and listening to the tone of the tape

recording of that conversation, we believe the encounter was not

coercive.   The totality of the circumstances demonstrates that

Kim voluntarily answered Small's questions, and was cooperative

during the entire encounter.0   Furthermore, we cannot say the

district court's finding that Agent Small did not block the

doorway during questioning is clearly erroneous.     We therefore

conclude that the encounter was consensual and did not produce

tainted fruit inadmissible at trial.



                                III.

            Kim contends that his encounter with the police was a

seizure and therefore his consent to search was tainted by that

seizure.    Brief for Appellant at 35-37.   As we conclude that Kim

was not seized during the encounter, Kim's contention of taint

naturally fails.    Still, we feel it appropriate to examine

separately whether the district court erred in finding that Kim

voluntarily consented to the search of Kim's luggage.     The

district court's determination of consent to search the luggage

is a finding of fact, see 

, 93 S. Ct.


0
 The dissent faults us for analyzing several factors in
isolation. To the contrary, we base our conclusion that the
encounter was voluntary on all of the circumstances surrounding
the encounter including Small's manner and tone and Kim's
voluntary responses to Small. The dissent itself describes a
typical Small encounter as follows: "[Small] makes no threats.
His tone is polite and conversational. He does not show a gun.
He behaves much like a door-to-door salesman who can keep his
foot in the door and the prospect talking until he has made a
sale (or in Small's business, an arrest)." Dissent Typescript at
2 n.1.


                                 17
at 2047-48, and is subject only to clearly erroneous review. See,

e.g., 

.      We find no clear error in this

case.

             It is well settled that the government may undertake a

search without a warrant or probable cause if an individual

consents to the search, and any evidence discovered during such a

search may be seized and admitted at trial.     

, 93 S. Ct. at 2043-44 (1973).     Our task is to decide

whether Kim consented to the search of his luggage.

          As the Supreme Court instructed, "[w]hen a prosecutor

seeks to rely upon consent to justify the lawfulness of a search,

he has the burden of proving that the consent was, in fact,

freely and voluntarily given."    

, 93

S. Ct. at 2045 (internal quotation marks and citations omitted).

"[W]hether a consent to a search was in fact `voluntary' or was

the product of duress or coercion, express or implied, is a

question of fact to be determined from the totality of all the

circumstances."    

93 S. Ct. at 2047-48.   Thus whether

consent was given is to be resolved by examining all relevant

factors, without giving dispositive effect to any single

criterion.    Certain factors that courts consider in determining

whether confessions were voluntary, such as the age of the

accused, his education, his intelligence, whether he was advised

of his constitutional rights, and whether the questioning was

repeated and prolonged, 

93 S. Ct. at 2047, are
relevant to our examination.    See United States v. Velasquez, 885




                                  

, 1081-83 (3d Cir. 1989), cert. denied, 

,

(1990).

          While not giving an exhaustive list of relevant

factors, the Supreme Court in Schneckloth did teach that "[w]hile

knowledge of the right to refuse consent is one factor to be

taken into account, the government need not establish such

knowledge as the sine qua non of an effective consent."

, 93 S. Ct. at 2048.     Nor is the

government required to advise the defendant of his right to

refuse consent before eliciting his consent.     

93

S. Ct. at 2049-51.

          Applying these principles to the case sub judice, we

hold that the district court did not clearly err in finding that

Kim consented to the search of his luggage.     The tape recording

of the conversation between Small and Kim and the transcript of

that recording indicate Kim spoke English well and answered

Small's questions without hesitation.     Kim had been a permanent

resident alien in the United States for over twelve years and

attended high school in Philadelphia.

          Most important, when Small asked if Kim would

voluntarily consent to a search of his luggage, Kim readily

responded, "Sure."   App. at 34.    During the entire short

conversation, Kim was cooperative.      He readily confirmed to Small

the identity of his luggage.   Kim's demeanor was no doubt a

strong indication of voluntariness.     Even his travel companion

Song Youn testified that Kim was not at all reluctant to permit




                                   19
Small to search his luggage, and that Kim readily consented to

the search.    App. at 304.

          Moreover, the whole encounter was short, lasting only

several minutes.    There was no threat of force against Kim. Small

was the only officer visible to Kim and Youn.        Nor was the

atmosphere coercive.     Small was polite and his tone was courteous

and conversational.     There was no repeated and prolonged

questioning.    Nor did Small ask Kim direct, probing, or

incriminating questions.      During the entire period, Small

mentioned only that he was looking for illegal drugs.          That was

not a probing or incriminating question; it was meant to inform

Kim of Small's mission and the scope of his search so as not to

mislead Kim.    In any event, such questioning alone is not

dispositive under a totality of circumstances analysis.         It

certainly does not outweigh the overwhelming evidence of

voluntariness as analyzed above.        Nor do we believe it

significant that Kim was not advised of his right to refuse

consent, particularly in the face of strong evidence of

voluntariness.     See 

-33, 93 S. Ct. at

2048-50; 

.
          For the foregoing reasons, we conclude that the

district court was correct in finding that Kim voluntarily

consented to the search of his luggage.



                                  IV.

          Kim also contends that his consent to the search of his

luggage did not extend to the search of the sealed containers


                                   20
within one of his bags, and therefore the drugs found in those

containers are inadmissible.     We reject this argument.

          It is clear that "[w]hen an official search is properly

authorized--whether by consent or by the issuance of a valid

warrant--the scope of the search is limited by the terms of its

authorization."    Walter v. United States, 

, 656, 

, 2401 (1980).     "The standard for measuring the scope

of a suspect's consent under the Fourth Amendment is that of

`objective' reasonableness--what would the typical reasonable

person have understood by the exchange between the officer and

the suspect?"     Florida v. Jimeno, ___ U.S. ___, ___, 

, 1803-04 (1991).    Applied to the case sub judice, the

inquiry is whether a reasonable person would have understood the

exchange between Small and Kim as indicating that Kim's

authorization to search his luggage for drugs included permission

to search the sealed cans placed inside his luggage.

          We therefore examine the exchange between Small and Kim

to determine what a reasonable person would understand the scope

of the consent to be.     Before starting the search, Small informed

Kim and his friend Sung Youn that he worked for DEA and was

looking for illegal drugs, and asked if they had any drugs in

their luggage.     After that Small asked him, "Would you

voluntarily consent for me to search?"     App. at 34.   Kim

responded, "Sure."     

identified one of his bags for

Small.   Upon opening the bag, Small discovered some cans.     Small

asked what was in the cans and what it was for.     Kim said it was

vegetable protein.     Small asked whether Kim was sure that the


                                   21
cans contained vegetable protein.      Kim said nothing.   Youn said,

"It's closed," and repeated it.    App. at 35.    Small proceeded to

open the can and Agent Candelaria subsequently determined that

the cans contained methamphetamine.      Kim and Youn were then

arrested.

            We conclude that a reasonable person would understand

Kim's authorization for a search of his luggage to include

permission to search any items found inside his luggage.      Common

sense supports this understanding.      Small indicated that he was

looking for illegal drugs, and his search target was the luggage.

Kim gave his permission for Small to search his luggage for

drugs.   Cans such as those found in Kim's luggage may be thought

by a reasonable person to contain drugs.      Thus the permission to

search the luggage covered the cans found in that luggage.

            The ruling of the Supreme Court in Jimeno, ___ U.S. at

___, 111 S. Ct. at 1803-04, a case analogous to the one before

us, lends support to our conclusion.      In Jimeno, the Supreme

Court held that "it was objectively reasonable for the police to

conclude that the general consent to search respondent's car

included consent to search containers within that car which might

bear drugs.    A reasonable person may be expected to know that

narcotics are generally carried in some form of a container." 

            Kim attempts to distinguish this case from Jimeno by

pointing out that the search was conducted around a sleeping

compartment on a train rather than in a car as in Jimeno, and
that the drugs in this case were contained in sealed cans rather


                                  22
than in a bag simply folded as in Jimeno.     We conclude that these

distinctions do not defeat the principle underlying the Jimeno

ruling that when one gives general permission to search for drugs

in a confined area, that permission extends to any items within

that area that a reasonable person would believe to contain

drugs.

          We believe that the place where the encounter took

place is not significant because it did not operate to coerce

Kim, as we have analyzed above, to give his general permission to

search his luggage.     Moreover, the distinction between the sealed

cans in this case and the folded bags in Jimeno does not mandate

a different result because they both are what a reasonable person

would believe could function as drug containers.    To repeat the

language of the Supreme Court, "a reasonable person may be

expected to know that narcotics are generally carried in some

form of a container."     

that the Supreme Court indicated that "[i]t is

very likely unreasonable to think that a suspect, by consenting

to the search of his trunk, has agreed to the breaking open of a

locked briefcase within the trunk."    

such as

those found in the case sub judice are not similar to locked

briefcases.   We therefore reject the argument based on the above

language of the Supreme Court addressing a different matter.     We

draw support from United States v. Springs, 

, 1334-

35 (D.C. Cir. 1991), where the court upheld the search of a

sealed baby powder container.     The court there rejected an

argument almost identical to Kim's:


                                  23
            the evidence supports a view that the opening of the
            baby powder container did not depend upon possession of
            a key, knowledge of a combination, or anything other
            than merely removing its lid. Neither did the fact of
            its opening render it useless, anymore than the opening
            of the folds destroyed the usefulness of the paper bag
            in Jimeno.

  The same scenario occurred in this case and we

follow the reasoning of Springs.

            Finally, Kim contends that after Small obtained general

permission to search Kim's luggage, he should have also asked for

specific permission to search each bag and, more importantly, for

permission to open the cans when Small discovered them in Kim's

luggage.0   Such an argument for more explicit and specific

authorization has been rejected by the Supreme Court in Jimeno.

The Court stated that if a suspect's consent "would reasonably be

understood to extend to a particular container, the Fourth




0
 Upon opening the bag, Small discovered some cans. The following
colloquy ensued:
          SMALL:    What is this stuff?
          KIM:      Vegetable protein.
          SMALL:    What do you use it for?
          KIM:      I don't know. I got it for --
          YOUN:     For health.
          KIM:      -- a present.
          SMALL:    A prisent? A present! Who gave it to you,
                    you know?
          KIM:      We bought it in L.A. Coffee, and these.
          SMALL:    Okay. You're sure that's what's inside one
                    of these?
          YOUN:     It's closed.
          SMALL:    Huh?
          YOUN:     It's closed.
          SMALL:    It's closed?


App. at 34-35.

                                 24
Amendment provides no grounds for requiring a more explicit

authorization."    Jimeno, ___ U.S. at ___, 111 S. Ct. at 1804.

           We have already concluded above that Kim's consent to

search his luggage for drugs extended to the cans in the luggage.

Of course Kim could have limited his consent to certain items,

but he had the burden to express that limitation, 

did not do.   Kim readily gave his general consent to the search,

without hesitation or limitation.        Even Youn subsequently

testified that Kim was not at all reluctant to permit Small to

search his bags.     App. at 304.

          The fact that Youn said, "It's closed," App. at 35,

does not help Kim.    It is worth emphasizing that Youn, not Kim,

said those words.     Kim, who gave general authorization to search

and readily identified his own luggage for Small, said nothing.

Therefore, it was reasonable for Small to conclude that Kim, who

bore the burden to limit his own permission, did not attempt to

impose any limitations on his general permission.        After all,

Youn, who was not Kim's guardian, would not be considered by a

reasonable person to be able to legally limit Kim's consent.

          More important, Youn's words would not be understood by

a reasonable person as a limitation on Kim's consent because Youn

spoke those words not in an attempt to limit the search, but

rather in response to Small's question, "You're sure that's

what's inside one of these?"     

was another way

of saying, "I don't know because it is closed."         Accordingly,

Kim did not limit his general consent to search to any specific

items.   For the foregoing reasons, we hold that it was reasonable


                                    25
for Small to conclude that Kim's consent to search extended to

the cans found in his luggage.



                                 V.

            Finally, Kim argues that the district court erred in

upwardly adjusting his sentence by applying a two-level

enhancement for obstruction of justice, pursuant to U.S.S.G.

§3C1.1.   That provision mandates a two-level enhancement "[i]f

the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant

offense."   U.S.S.G. § 3C1.1.    This provision applies to false

statements made during a defendant's cooperation with law

enforcement authorities.   See, e.g., United States v. Banks, 

, 693 (7th Cir.), cert. denied, ___ U.S. ___, 

(1992).

            The facts that led the district court to make the two

level upward adjustment essentially related to Kim's conduct

during his cooperation with the government.     Shortly after he was

arrested, Kim decided to cooperate with DEA.     Deliberately

concealing his first trip to Los Angeles in July 1992, Kim told

the agents that the August 1992 trip during which he was arrested

was his only trip to Los Angeles.     He further informed the DEA

agents that he had been asked to bring the cans back to

Philadelphia as a gift, and that someone was supposed to meet him

at the train station or to pick them up at his house.     He offered

to assist DEA to deliver the methamphetamine to the intended


                                 26
recipient in Philadelphia.     The DEA agents attempted to stage a

controlled delivery by placing Kim back in the original train. No

one showed up to meet Kim.     The evidence revealed that by that

time Kim had already called his employer's home to inform them of

his arrest and his cooperation with DEA.     Based on these facts,

Kim claims that there is no evidence of willful obstruction.

Furthermore, Kim argues, even if there was obstruction, it did

not relate to the "instant offense," possession of

methamphetamine with the intent to distribute, of which he was

convicted, but related solely to the conspiracy charge of which

he was acquitted.

          We exercise plenary review over the district court's

interpretation and application of the Sentencing Guidelines.

United States v. Belletiere, 

, 964 (3d Cir. 1992). We

review the factual findings of the district court for clear

error, 

the district court's finding involves a

mixed question of law and fact, our standard and scope of review

takes on greater scrutiny, approaching de novo review as the

issue moves from one of strictly fact to one of strictly law."

marks omitted).
          We first address the threshold question of whether the

facts that the district court relied upon to apply the upward

adjustment related to the "instant offense" within the meaning of

the Guidelines.     The language of the guideline indicates that

"instant offense" refers to the particular offense of which the

defendant was convicted of.     "Any interpretation other than that

§ 3C1.1 refers to efforts to obstruct the prosecution of the


                                  27
conviction offense would only render this modifier meaningless."

United States v. Perdomo, 

, 118 (2d Cir. 1991),

quoted in 

.       Accord, e.g., United

States v. Barry, 

, 1333 (D.C. Cir. 1991).

Furthermore, the Sentencing Commission's own interpretation

supports this reading of the guideline.      As we pointed out,

"[t]he commentary to section 3C1.1 makes it clear that the

section's focus is on willful acts or statements intended to

obstruct or impede the government's investigation of the offense

at issue."    

.    Accordingly, in order

for the district court to apply a two-level upward adjustment,

the facts showing Kim's obstruction must relate to the offense of

possessing methamphetamine with the intent to distribute, of

which he was convicted, or its investigation, prosecution, or

sentencing.

          Kim contends that the facts that arguably constituted

obstruction of justice at most pertained only to the conspiracy

count of which he was acquitted, rather than the possession

count.   His argument is that the possession offense was complete

in Albuquerque because "[t]he government took the drugs and Kim's

possession ended."    Brief for Appellant at 48.    His allegedly

false cooperation with the government was useful only to catch

certain third parties, so the argument goes, and was included

solely in the charged conspiracy of which he was acquitted.

          We disagree.    While it is clear that Kim's false

cooperation related to the conspiracy charge, that fact alone

does not necessarily demonstrate that his conduct could not also


                                 28
relate to the possession count.    Viewing the indictment and the

facts as a whole, we conclude that Kim's false cooperation

related to the possession charge of which Kim was convicted.       The

possession offense may well have stopped when the government took

the drugs from Kim.   But the "investigation, prosecution, or

sentencing" of that offense did not stop at that point.

          The possession offense of which Kim was charged and

convicted has three elements:     (1) Kim's possession of six

kilograms of the methamphetamine; (2) his knowledge that the

substance he possessed was a controlled substance; and (3) his

intent to distribute the controlled substance.     See 21 U.S.C.

§841(a)(1).   The government had the burden of proving every

element beyond a reasonable doubt.     In order to carry that

burden, the government must conduct a thorough investigation of

every fact that related to those three elements.     The

government's investigation of other participants in the scheme

directly bore upon two elements of the offense: Kim's knowledge

that the substance in the cans was a controlled substance and his

intent to distribute.

          In particular, Kim's material misstatements about other

participants and his trip to California in July of 1992 related

to his knowledge of methamphetamine in the cans.     In order to

prove Kim's knowledge, the government may have needed to prove

how the methamphetamine came into Kim's possession and, thus,

needed accurate information regarding the events preceding the

encounter in front of the train roomette on August 26, 1992.       The

evidence shows that Kim deliberately provided false and


                                  29
inaccurate information with respect to his contact and his trip

to Los Angeles in July of 1992.

           To prove the intent to distribute element, the

government may have needed to identify who was waiting for the

methamphetamine.    Kim deliberately called the home of his

employer Kenneth Lee (also known as Kwang Suk Yi), warning him of

his cooperation with the government, thus tipping off the

intended recipient of the methamphetamine.    Of course, this

obstructed the government's investigation of the intent element:

no one actually showed up to receive the methamphetamine from

Kim.   Accordingly, the facts upon which the district court based

the two-level enhancement were intimately related to

investigation and prosecution of two elements of the possession

offense and therefore related to the "instant offense" within the

meaning of U.S.S.G. § 3C1.1.

           We next address the issue of whether there is evidence

of willful obstruction.    The language of § 3C1.1 plainly requires

that upward adjustment be based only on willful obstruction of

justice.   Willful obstruction includes "providing a materially

false statement to a law enforcement officer that significantly

obstructed or impeded the official investigation or prosecution

of the instant offense."    

           Willfulness denotes "an act which is intentional rather

than accidental."    

  (internal

quotation marks omitted).    In the context of applying § 3C1.1 in

a sentencing determination, the evidence must show that the

defendant "intentionally obstructed or attempted to obstruct


                                  30
justice."    

government sought to upwardly adjust

Kim's sentence, it bore the burden of proving by a preponderance

of the evidence that Kim willfully obstructed or attempted to

obstruct justice.     

that the district court erred in failing to

make a specific factual finding of willful obstruction, which

failure warrants a remand.     We read the record differently.

During the sentencing hearing, the district court specifically

stated that the court imposed the sentence on Kim for his serious

criminal conduct and his "subsequent misleading of the

Government's investigation by not telling the truth or appearing

to help them [sic] when he, in fact, was not doing this."       App.

at 612.     This language indicates that the district court found

that Kim intentionally misled the government in order to thwart

the investigation.     Read in the context of the sentencing

hearing, and coupled with the evidence of Kim's false cooperation

and misstatements in the record, the district court's statement

more than constituted a finding of willful obstruction of

justice.

              Kim next argues that there was no evidence to support

the finding of the district court.     We disagree.   The district

court made its finding of Kim's misleading the government's

investigation only after reviewing the pre-sentencing report and

hearing arguments from both parties.     See App. at 589-612.    The

record reflects that the government proved Kim's deliberate false

statements to the government agents.     The district court

certainly did not clearly err.


                                  31
           First, Kim deliberately concealed his first trip to Los

Angeles in July of 1992 when the methamphetamine shipment was

due.   Kim admitted to lying about his trip in order to shift the

focus of the government investigation away from him.    App. at

382.   Kim also deliberately misled the government about the

identity of the individual who delivered to him the cans

containing the methamphetamine.    As mentioned above, these

falsehoods directly related to and impeded the investigation of

one of the elements of the possession count:    Kim's knowledge of

the controlled substance contained in the cans.

           Second, the record also supports the finding of the

district court that Kim deliberately misled the government's

investigation as to who would be the intended recipient of the

cans of methamphetamine which directly related to the intent to

distribute element of Kim's possession charge.     Kim contends that

there was no direct evidence that Kim willfully obstructed the

investigation.   The district court, however, indicated that it

could infer willfulness from the course of Kim's conduct during

the sham cooperation.   App. at 593.   We have reviewed the record

and conclude that the district court's inference was not clear

error.

           The record reveals that Kim made several

misrepresentations to the government agents during the course of

his alleged cooperation with the government in order to assist

the government in catching the intended recipient of the drug. He

misled the agents into believing that he would assist them in

effecting a controlled delivery in Philadelphia.    On the pretext


                                  32
of calling his home to find out whether his wife had given birth

to their child, Kim called Lee and informed Lee's wife that he

was cooperating with DEA, knowing that this would tip off the

intended recipient.    In his subsequent testimony, Kim conceded

that because of this disclosure, "everybody" knew about the

situation.    App. at 390.

             Kim first told the agents that the recipient would come

to the train station or his home.      But at the last minute while

staying at a hotel with the agents, he changed his story.        Then

Kim said that the recipient would contact him through a beeper,

which was at his home.    Kim then called his home and asked his

brother-in-law to bring his beeper for him to use.     Shortly

afterwards, his brother-in-law, accompanied by Kenneth Lee,

brought the beeper to the hotel room.     Kim told the agents that

Lee spoke only Korean (when he in fact spoke English) and

proceeded to speak with him in Korean which the agents did not

understand.    Subsequently no one showed up to pick up the cans of

methamphetamine.

             From this factual scenario, the district court was

entitled, we conclude, to find that Kim intentionally obstructed

the government's investigation of the intended recipient of the

methamphetamine which related to Kim's intent to distribute the

drug.   The district court found that Kim probably manipulated the

timing of his story of the pager to bring Lee to the hotel in

order to assure him that Kim was acting as if he was cooperating,

but in fact was not.    Clearly if Kim simply wanted the beeper, he

could have asked his brother-in-law to bring it to the hotel,


                                  33
alone, without enlisting the help of Lee.   Although there was no

direct evidence of the conversation between Lee and Kim, the

district court's inference was not clearly erroneous.

          We are aware of the commentary to U.S.S.G. § 3C1.1

stating that "testimony or statements should be evaluated in a

light most favorable to the defendant."   U.S.S.G. § 3C1.1,

comment. (n.1).    Nonetheless, we conclude that the entire course

of conduct of Kim's false cooperation with the government amply

supports the finding of the district court.   In this context, we

must bear in mind that the government's burden is not to prove

its position beyond a reasonable doubt, but only by a

preponderance of the evidence.   

.

          Kim finally contends that he called Lee not to tip off

the intended recipient, but to pay "the courtesy of a telephone

call," Brief for Appellant at 46, to his employer.   He asserts

this was "within the norm for a defendant who has just been

arrested and has made an important decision to assist the

government," 

argument, Kim attempts to explain

away his willfulness to impede the investigation.

          We reject this version of what occurred.   The district

court believed, and we agree, that a truly cooperating defendant

would not undermine the cooperation.   Although it may be

reasonable for a defendant to inform his family and employer that

he will not be home as scheduled, it was not necessary for Kim to

disclose that he was cooperating with the government.   He had

several other options.   Instead, he chose to call his employer

under the pretext of calling his wife to inquire about the birth


                                 34
of their child.   Had he been forthright about calling his

employer, the agents may have attempted to stop him.   More

important, Kim disclosed in the phone call that he was

cooperating with the government, knowing that the information

would be made known to others.   Kim must have known that the

effect of his call would be to tip off the intended recipient of

the drugs of the danger of being caught if he came to meet Kim.

These facts rendered Kim's explanation not credible.   The

district court did not clearly err in inferring that Kim

willfully impeded the investigation.

          Accordingly, we conclude that Kim willfully obstructed

the investigation and prosecution of the instant offense within

the meaning of U.S.S.G. § 3C1.1 and that the district court's

finding of willful obstruction is supported by the record.    The

district court did not err in applying a two-level upward

adjustment in Kim's sentence for obstruction of justice.



VI.

          For the foregoing reasons, we will affirm in all

respects the judgment of conviction and sentence entered by the

district court.




                                 35
United States v. Kim


                       36
No. 93-1726


BECKER, Circuit Judge, dissenting.
           This appeal presents two discrete Fourth Amendment issues.   They are both

but, with all respect, I believe that the majority has gotten them both wrong.    Fir

believe that the facts taken as a whole show that a reasonable person in defendant

position would not have felt free to terminate the encounter and hence that there w

seizure.   More specifically, a seizure occurred because Agent Small confronted Kim

non-public part of the train, blocked Kim's exit from the roomette, asked Kim focus
incriminating questions, and never advised Kim that he had a right to terminate the

encounter. As I see it, at the time Small asked Kim whether he had drugs in his lug

Small had seized him.    And since Small had no reasonable suspicion at the time he d

Kim, the consent Kim gave to search his luggage was involuntary.    Second, I think t

even if the majority is right that Small had not seized Kim and that Kim's consent

search of his luggage was thus voluntary, Small exceeded the scope of Kim's consent

he opened one of the sealed Naturade All-Natural Vegetable Protein canisters he fou

Kim's luggage.   I would therefore hold that the motion to suppress should have been

granted and that the convictions should be overturned.

                                        I. THE SEIZURE

           I agree with the majority that the seizure question in this case falls un

rule of Florida v. Bostick, 

, 

(1991), which tells us th

person has been seized if, under the totality of the circumstances, a "reasonable p

would feel free to decline the officers' requests or otherwise terminate the 

.0    A review of the circumstances surrounding the encounter betwee

0
 The encounter between Kim and Small occurred in a sleeper car on an AMTRAK train c
the "Southwest Chief," which travels between Los Angeles and Chicago. Agent Small
with Officer Candelaria) has become something of a legend among the district judges
Mexico and the appellate judges in the Tenth Circuit. His drug interdiction effort
the Albuquerque train station have singlehandedly spawned an entire jurisprudence a
searches and seizures on trains. No fewer than nine published opinions in that cir


                                              2
Small and Kim, however, shows that a reasonable person would not have felt free to

terminate the encounter.

          To begin with, the encounter occurred in a train roomette, a non-public s

The non-public nature of the setting is a factor that weighs in favor of a conclusi

a seizure occurred because police conduct in non-public areas tends to be more coer

See United States v. Ward, 

, 1531 (10th Cir. 1992) (stating that "whet

encounter occurs in the public view is particularly significant" to the question of

whether a seizure occurred).   See also Berkemer v. McCarty, 

, 438, 104

3138, 3149 (1984) (expressly recognizing the importance of an encounter occurring i

public place).0

including an en banc opinion, grapple with the Fourth Amendment issues raised by hi
actions. See United States v. Moore, 

(10th Cir. April 18, 1994); Un
States v. Little, 

(10th Cir. 1994) (en banc); United States v. Zapata,
F.2d 751 (10th Cir. 1993); United States v. Hall, 

(10th Cir. 1992); Un
States v. Bloom, 

(10th Cir. 1992); United States v. Ward, 

(10th Cir. 1992); United States v. Scales, 

(10th Cir. 1990); United St
Miller, 

(D.N.M. 1993); United States v. Armijo, 

(D.N.M. 1991).
          Based on these reported cases, Small's method of operation is distinctive
apparently always essentially the same. Before the "Southwest Chief" stops in Albu
during its run between Los Angeles and Chicago, he reviews the train manifest looki
passengers travelling in sleeping cars on one-way tickets paid for with cash. When
finds such a passenger, he knocks on the passenger's roomette door, stands in the d
and begins a carefully constructed inquisition that quickly leads to the question "
you voluntarily consent for me to search." He makes no threats. His tone is polit
conversational. He does not show a gun. He behaves much like a door-to-door sales
can keep his foot in the door and the prospect talking until he has made a sale (or
Small's business, an arrest). He is an enormously capable and highly successful po
officer. But his arrests have not always been upheld against Fourth Amendment chal
and, at all events, we must analyze the facts of this case on their own.
0
          The majority opinion in the recent Tenth Circuit en banc case discussing
United States v. Little, 

(10th Cir. 1994) (en banc), questioned the
assumption that a non-public encounter makes the police conduct more coercive than
occurs in a public setting. 

& n.5. It stated, not unpersuasively, tha
people may in fact feel more coerced when they are confronted in a public setting a
submit to police requests because they do not want to make a spectacle of themselve
          Although the Little majority's view on this question has intuitive appeal
does not appear to be in accord with the view of the Supreme Court. As Judge Logan
pointed out in dissent in Little, the Supreme Court has explicitly stated in the co
of giving Miranda warnings that public settings are inherently less coercive. Litt


                                             3
          The district court's finding that the setting was public was, in my opini

clearly erroneous.    Although someone renting a roomette probably does not have the

expectation of privacy as someone sitting in his or her home, a roomette passenger'

expectation of privacy is certainly much higher than a coach passenger's.     In my vi

privacy expectation is quite similar to that of an individual who has rented a hote

and it is well settled that a hotel room is a non-public place.     See Stoner v. Cali

, 489-90, 

, 893 (1964) (according full Fourth Amendment

protection to hotel guests); Eng Fung Jem v. United States, 

, 805 (9th

1960) ("The transience of appellant's stay in the [hotel] room searched by the offi

does not dilute the force of constitutional protection.    The hotel room in question

appellant's dwelling.    That he lived there for but several days is of no consequenc

           Moreover, Stoner has been extended beyond hotel rooms to cover other temp

dwelling places.     See, e.g., United States v. Gooch, 

, 678 (9th Cir. 1993

pitched in public campground was non-public place entitled to same protection as a

room).   Courts have also recognized higher expectations of privacy in private livin

quarters on ships.    See United States v. Alfonso, 

, 738 (9th Cir. 1985)

private living quarters [of a ship] are at least analogous to a private dwelling.

result, even in the context of a border search, the search of private living quarte

ship should require something more than naked suspicion.").     These cases suggest th


F.3d at 1511 (Logan, J. dissenting) (quoting 

, 

). In Berkemer, the Supreme Court said:

          [t]he typical traffic stop is public, at least to some degree. Passersby
          foot or in other cars, witness the interaction of officer and motorist.
          exposure to public view both reduces the ability of an unscrupulous polic
          use illegitimate means to elicit self-incriminating statements and dimini
          the motorists fear that, if he does not cooperate, he will be subjected t
          

, 104 S. Ct. at 3149. Until the Supreme Court states otherwise, the
we must operate under the assumption that encounters with the police in non-public
settings are inherently more coercive.


                                               4
place set aside for sleeping in private carries with it a much higher expectation o

privacy and should be considered a non-public place.     Cf. Minnesota v. Olson, 495 U

99, 

, 1689 (1990) ("We are at our most vulnerable when we are asleep

because we cannot monitor our own safety or the security of our belongings.     It is

this reason that, although we may spend all day in public places, when we cannot sl

our own home we seek out another private place to sleep, whether it be a hotel room

the home of a friend. Society expects at least as much privacy in these places as i

telephone booth -- 'a temporarily private place whose momentary occupants' expectat

freedom from intrusion are recognized as reasonable.'" (quoting Katz v. United Stat

U.S. 347, 361, 

, 517 (1967) (Harlan, J concurring))); United States v.

, 366 (9th Cir. 1982) ("Those living on their boats have a greater expe

of privacy at night."), cert. denied, 

, 

(1983).    I belie

a train roomette, an enclosed cabin with a bed and a sink, is no less a temporary d

place than a pitched tent in a campground, a private berth on a ship, or a hotel ro

          Of course a conductor can enter the roomette at different times during th

But the fact that a conductor may enter to check tickets or in case of an emergency

that an attendant may enter to make the bed and clean up the room the next morning,

not lower the expectation of privacy a passenger has in the roomette with respect t

entries into the roomette for purposes totally unrelated to those duties of the tra
crew.   The right of access to the hotel room by managers and housekeepers, for exam

does not transform the hotel room into a public place.    See 

S. Ct. at 893 (noting that although a person engaging a hotel room gives permission

maids, janitors or repairmen to enter the room in the performance of their duties,

permission does not give police license to enter to search for incriminating eviden

Chapman v. United States, 

, 616, 

, 780 (1961) (explaining
although a landlord had actual authority to enter into a house to "view [a tenant's

waste" and gave his permission to search, the police violated a tenant's constituti


                                             5
right when they searched the tenant's house since the search was unrelated to viewi

waste).    I see no reason why this principle should not apply with equal force in th

roomette setting.

            It is also virtually undisputed that the roomette was a cramped and confi

setting.    The roomette, which was seven feet wide and less than four feet deep, was

similar to a moderately sized walk-in closet.     The only access to and from the room

was through a door that was only two feet wide.    The hallway outside the doorway wa

itself only two and a half feet wide. Such cramped confines increase the coercive n

of the encounter, making it less likely that a reasonable person would feel free to

terminate it.    Cf. 

, 111 S. Ct. at 2389 ("The cramped confi

a bus are one relevant factor that should be considered in evaluating whether a

passenger's consent is voluntary.").

           Making the encounter in the cramped and confined space even more coercive

the fact that Small blocked Kim's only means of exit.    Kim argues, and I agree, tha

district court's finding that Small did not block the doorway is clearly erroneous.

claimed that he was kneeling five to six inches from the door during much of the en

(the district court accepted this testimony, finding that he had been five inches f

door).    For Kim to have terminated the encounter by leaving the roomette would have

required him to vault over Small, through a two foot doorway into approximately 30
of landing space (really somewhat less because Small's body would have occupied a

considerable part of the hallway).    I think it is inconceivable that a reasonable p

would have felt free to ignore Small by passing over him into the narrow hallway wh

Small knelt during the encounter.    Cf. United States v. Savage, 

, 1116

Cir. 1989) (stating that blocking the door would have been relevant to the question

seizure because it would have prevented defendant from leaving the compartment).

            Of course, it might be argued that Kim could have terminated the encounte
simply by shutting the door.    If so, it might not matter whether Small blocked Kim'


                                              6
from the train. But I do not think a reasonable person would think they could termi

the encounter with the police by slamming a door in the officer's face.   See Savage

F.2d at 1116 (saying nothing about whether the defendant could shut the door).   Ind

am not sure that it matters much to the inquiry whether Kim had alternative methods

terminating the encounter other than exiting the train for the fact that Small may

left Kim a variety of ways of terminating the encounter does not mean that a reason

person would have felt free to use them.   For example, a seizure would certainly ha

occurred had Small entered into the roomette and shut the door behind him regardles

whether Kim could have terminated the encounter by some other means like telling Sm

go away, or climbing out a window.

          In any event, I do not believe that Kim could have shut the door during t

encounter.   The findings the district court made about the configuration of the tra

about the traffic passing up and down the hallway, and Small's claim that he left r

the passengers walking up and down the hallway, make it virtually certain that Smal

leaned inside the room for important periods of time during the episode and thus pr

the door from being shut.

          The majority tries to avoid this problem by stating that Small's testimon

he "was not blocking the door" was uncontradicted.   This assertion is simply incorr

Both Youn and Kim testified that Small was leaning against the side of the doorway,
leaning against the door itself.   Youn testified that Small was "definitely in the

doorway" and Kim testified "He was kind of leaning through the doorway -- not into

compartment.   He was leaning on the side of the door."

          In my opinion, both Youn's and Kim's testimony that Small was leaning aga

the doorway throughout the encounter is inherently credible because:   1) leaning ag

the doorway would be the natural way to conduct a conversation with anyone sitting
roomette; 2) it would allow Small the ability to conceal the fact that he was passi

things to Candelaria throughout the encounter; 3) and it would allow other passenge


                                             7
pass freely down the hallway.   By contrast, I believe Small's testimony that he was

to six inches from the door is incredible because 1) if Small really had been five

inches outside the roomette, there would not have been enough room for people to pa

without at least acknowledging Small, and nowhere does the tape record an "excuse m

similar statement by even a single passenger passing Small in the corridor;0 and 2)

the large amount of noise in the train at the time, it seems doubtful that Kim coul

even heard Small's "polite and conversational" voice had Small stayed five to six i

outside the roomette.

           Not only did the encounter occur in a non-public, confined setting with S

blocking the only means of exit, but Small also asked Kim and Youn focussed and

potentially incriminating questions.   Small first asked them about their citizenshi

status.   Apparently, the sight of two Asian men travelling to Philadelphia from Los

Angeles made Small think that they might be illegal aliens, and no doubt his questi

communicated these thoughts to Kim.    He then asked them "[y]ou guys don't have any

in your luggage today, do you?"   By asking this after looking over their tickets tw

informing them that he was a DEA agent on the train looking for drug traffickers, S

communicated the message that Kim was a specific target of the agent's investigatio

least two courts have found that a seizure occurred when an officer asked similar

questions of a suspect.   See United States v. Nunley, 

, 185 (8th Cir. 1
(seizure occurred as soon as agent told defendant that he was part of a narcotics u

was trying to stop the flow of drugs through the St. Louis airport); United States

0
 If he had been kneeling, as Small testified he had been, his legs would have stuck
approximately 18 inches into the hallway. That would have left other people in the
corridor with less than 12 inches to pass without touching Small. And if he had be
to six inches from the doorway, he would have left other passengers with only six t
inches to pass. Again it is likely that they would have had to step over at least
part of Small's body when they passed Kim's roomette and there is nothing on the ta
indicating in any way that they did. Unless people on the train from Los Angeles h
worse manners than average people, or are more nimble and svelte, one would have ex
something on the tape where the passing passengers acknowledged Small's presence.
is nothing of the kind on the tape.


                                              8
Gonzales, 

, 752 (5th Cir. 1988) (seizure in an airport occurred when a

agent told defendant that he was "working narcotics" and asked to look in the bag),

overruled on other grounds, United States v. Hurtado, 

(5th Cir. 1990).0

0
          Both Nunley and Gonzales were airport cases. In each case, the encounter
occurred in the airport terminal, a non-cramped and public place where it would hav
quite easy for the defendant to walk away. They are therefore much weaker cases th
one, where similar questions were asked to a defendant who was trapped in the confi
space of the roomette. As I see it, if it is true that a seizure occurred where si
questions were asked to a defendant in a public setting, then it must be the case t
seizure would have occurred where such questions were asked in a cramped and confin
setting.
           The majority comments in a footnote that "the dissent has cited to severa
decided in or before 1990 prior to Bostick (1991) for a proposition contrary to the
Bostick language [that police may ask potentially incriminating questions without
converting an encounter into a seizure]. Those cases also conflicted with Little."
Op. at 15 n.6. I see no conflict between Bostick and either Nunley or Gonzales. B
cases employ the same totality of the circumstances approach endorsed in 

; 

.
Apparently the majority believes that the language from the Bostick case makes the
question whether focused and incriminating questions were asked irrelevant to the t
of the circumstances inquiry. I see nothing in the language of Bostick that leads
a conclusion. Bostick merely says that police may approach a person and ask potent
incriminating questions without necessarily converting the encounter into a seizure
does not follow from such a proposition that asking incriminating questions is irre
to the question of whether a reasonable person would have felt free to terminate th
encounter.
           Indeed, a number of post-Bostick cases recognize that asking incriminatin
questions -- like asking a person whether he or she is carrying drugs -- is relevan
the question whether a person was seized. See, e.g., United States v. McCarthur, 6
1270, 1276 (7th Cir. 1993) (stating that one relevant consideration is whether the
indicate through their questioning that they were a specific target, like asking wh
they are carrying drugs); United States v. Adebayo, 

, 1338 (7th Cir. 1
(discussing as relevant to the seizure analysis whether the police asked the defend
whether he was carrying drugs, and explaining United States v. Borys, 

Cir. 1985), which held that it is relevant to the seizure question whether the offi
informs an individual that he is conducting a drug investigation and then asks the
individual if he has drugs in his possession), cert. denied, 

(1993)
United States v. Wilson, 

, 122-23 (4th Cir. 1991) (persistent questioni
even when polite, by itself, created a seizure). Wilson is particularly noteworthy
because in that case there were no coercive elements of the encounter other than th
questioning the police. The panel in that case could not have reached its result i
asking incriminating questions was irrelevant to the inquiry.
           Thus the majority's claim that the dissent ignores Bostick is misplaced.
Properly construed, Bostick allows courts to consider the incriminating nature of t
questioning as one part of the totality of the circumstances. And this conclusion
fully consistent with post-Bostick case law.


                                             9
           Furthermore, not only did the questioning seek to incriminate Kim, but th

questions were also blunt and direct. Although the majority dismisses the importanc

this fact by stating that Small's tone was polite and conversational, that response

the point.   Bluntness and directness describe the type of questions asked, not the

in which they were asked. See, e.g., 

(not even mentionin

whether the officer's tone was confrontational or rude to the defendant).    Although

tone of the officer's voice is relevant to the extent that a forceful tone of voice

make a reasonable person think that they must comply with the officer's requests, s

United States v. Savage, 

, 1115 (D.C. Cir. 1989), the lack of such a f

tone does not entirely deprive blunt and direct questions of their coercive force.

questions Small asked Kim about citizenship and drug trafficking were as sharp and

focussed as they could be under the circumstances, given that Small had absolutely

articulable suspicion that any crime had been committed, let alone that Kim had com

a crime.

           Finally, it is undisputed that Small failed to advise Kim of his right to

decline the agent's requests or terminate the encounter.     The majority dismisses th

as unimportant stating that "[w]hile such advice may well be evidence of the consen

nature of an encounter following the advice, the absence of such advice does not

necessarily eliminate the consensual nature of the encounter."    This statement is t
of the majority's approach to this case.   The majority examines each fact of the en

in isolation and considers whether each fact, by itself, would have made a reasonab

person believe he was not free to terminate the encounter.    See Maj. Op. at 11 ("No

believe a confined area in a train is inherently coercive"); Maj. Op. at 13 ("we do

believe that Kim's expectation of privacy [in the roomette] has any overriding impo

in our analysis as to whether a seizure occurred"); Maj. Op. at 15 ("potentially




                                             10
incriminating questions do not by themselves make an encounter coercive") (emphases

supplied).

             The clear implication of the majority's analysis in this case is that, un

the defendant can come forward with a piece of evidence that would make the encount

per se seizure, the defendant will not be able to show that there was a seizure. In

opinion, such an approach transforms the "totality of the circumstances" analysis o

Bostick into a mirror image of the per se approach rejected in Bostick.     Bostick te

that a court must consider all of the evidence in combination to determine whether

circumstances were such that a reasonable person would not feel free to terminate t

encounter.    The question whether one factor does or does not necessarily create a s

is simply no longer relevant after Bostick.

             Perhaps as a result of this failure to implement the Bostick standard, th

majority fails to recognize that although Small's failure to advise Kim that he had

right to terminate the encounter may not by itself create a seizure, it nevertheles

tip the balance under a true totality of the circumstances analysis.    This is parti

true in this case because the circumstances are otherwise so similar to Bostick.       O

critical, and perhaps decisive, importance in Bostick was the fact that the two pol

officers questioning Bostick on the bus had "specifically advised Bostick that he h

right to refuse 

, 2388.   If we believe that Bostick
represents a case in which the actions of the police were almost coercive enough to

to a seizure, the absence of such a warning in a situation similar to that in Bosti

should be enough to tip the balance.

             In sum, given that the setting was non-public and that Small was asking K

Youn incriminating questions while blocking the door to the roomette, Small's failu

advise Kim that he could terminate the encounter made the encounter a seizure.        I b




                                               11
that no reasonable person would have felt free to terminate the encounter under suc

circumstances.0

                                 II. THE SCOPE OF CONSENT

          Even if Small did not seize Kim prior to his search of the luggage, Small

search of the sealed vegetable protein canisters he found within the luggage violat

Fourth Amendment because it exceeded the scope of the consent.0   As the majority me

Small asked to search Kim's bag and Kim said he could.   Small then saw six metal-li

factory-sealed canisters labelled "Naturade All-Natural Vegetable Protein." Without

Kim's permission, and after Kim told Small that they were meant to be a present, Sm

opened the factory seal and handed the canister to Candelaria asking him to poke ar

inside the can to see what he could find.   The question is whether Small reasonably
0
  Of course, Small's seizure of Kim would not violate the Fourth Amendment if he had
reasonable suspicion to detain him. See United States v. Sokolow, 

, 7, 10
Ct. 1581 (1989); Terry v. Ohio, 

, 

(1968). Small did not,
however, have reasonable suspicion. At the time Small asked Kim whether he had dru
his luggage (the time that I believe the seizure occurred because by this time the
encounter was not only in a cramped, non-public space, but had involved focused and
incriminating questioning), Small knew the following facts: 1) Kim and Youn had pu
one-way tickets; 2) the tickets were purchased for cash; 3) they had upgraded to a
car en route from Los Angeles; 4) they were travelling to Philadelphia; 5) Kim was
naturalized citizen born in Korea; 6) Youn was in the U.S. Marines; 7) Youn's ticke
in the name of "Terry Park" (there is no evidence that Small knew that this was an
at the time of the encounter, however); and (8) the train manifest had the name "Wo
assigned to the sleeper. These facts are all consistent with innocent travel, and t
fall woefully short of the particularized suspicion sufficient to justify a Terry s
Compare United States v. Coggins, 

(3d Cir. 1993) (reasonable suspicion
when the defendant matched the standard profile for drug couriers, was using a fals
rented a car for only a few hours before returning it, appeared nervous and highly
agitated, and was traveling with two recognized drug traffickers).
0
    The majority addresses the question whether Kim voluntarily consented to Small's
of his luggage and concludes that Kim did so consent. It then concludes that "the
district court was correct in finding that Kim voluntarily consented to the search
luggage." I am not entirely sure why the majority has chosen to undertake this par
consent analysis. Kim apparently concedes that, absent a seizure, his consent to s
the luggage (though not the sealed container) was voluntarily given. Of course, if
was an improper seizure, Kim's consent to the search of the luggage pursuant to tha
improper seizure was involuntary, absent a break in the causal chain. Apparently, t
majority concedes that there was no break in causation between Small's initial enco
with Kim and his search of the bag. Thus, if the seizure was improper, the fruits
search should have been suppressed.


                                             12
believed that Kim's consent to search his luggage gave Small permission to open the

canisters.   The majority holds that it did.   I disagree.

          We know from Florida v. Jimeno, 

, 

(1991), tha

scope of a search is defined objectively and that under such an approach a suspect'

general consent to search a car includes consent to search a folded paper bag lying

floor of the 

.   But we also know that consent to search a l

container does not include consent to search all smaller containers inside.    

itself stated, "[i]t is very likely unreasonable to think that a suspect, by

consenting to the search of his trunk, has agreed to the breaking open of a locked

briefcase within the trunk."    

v. Wells, 

(Fla. 1989)

officer in Jimeno, Wells, and this case requested consent to search for narcotics;

the defendant in each case consented under similar contexts, making the scope of th

consent similar.    Hence the question ultimately posed by this case is whether the f

sealed canister is more like a locked briefcase or a folded paper bag.0

          The majority's entire discussion of this question is as follows: "cans su

found in the case sub judice are not similar to locked briefcases."     That is simply

conclusion. There is no discussion of the relevant differences between the two obje

purposes of the reasonable scope of a consent to search.     In my opinion, the differ

between the folded paper bag in Jimeno and the locked briefcase in Wells has to do
the owner's greater expectation of privacy in the contents of the briefcase than in



0
 The majority frames the issue as a matter of whether or not the canisters reasonab
could have contained drugs. It frames the issue in this way because it abstracts f
Jimeno the proposition that when an officer requests permission to search for drugs
such permission is given, "the permission extends to any items within that area tha
reasonable person would believe to contain drugs." Such a reading of Jimeno cannot
right. Jimeno clearly states that it would have been "unreasonable" to think that
suspect consents to the search of a locked briefcase inside a car trunk when he con
to search of a trunk. Yet it certainly is reasonable to think that a locked suitca
those circumstances contains drugs.


                                               13
paper bag, and in the owner's greater property interest in not having the lock on h

briefcase broken than in not having his paper bag opened.

          I believe, however, that a heightened expectation of privacy can be evide

something other than a lock -- gift-wrapping around a package, for example.    Of cou

sealed package like a can of food or a box with plastic shrink-wrap around it does

really evidence a strong privacy interest. Labels on products will often display

prominently the contents of a package.   This is where the second distinction become

important, however.   Consent to search property cannot reasonably be construed to m

consent to damage the property.   There is a strong property interest in sealed pack

and opening them often damages the value of that interest.

          In my opinion, the Naturade All-Natural Vegetable Protein canister Small

from Kim's luggage was no different than a can of tuna fish, a carton of milk, or a

briefcase, all of which would be seriously damaged once opened.    Once the seal was

the canister simply would not be able to keep its contents free from spoilage to th

extent it could before.   And if it was meant to be a gift, as Kim told Small before

opened the lid, it would not be much good once opened. I believe it to be unreasona

a police officer to think that consent to search luggage includes consent to open u

sealed package, particularly one that bears no visible evidence of tampering and wh

officer has been told is going to be used as a gift.

          Although the majority cites United States v. Springs, 

, 1334
(D.C. Cir. 1991), to support its conclusion that an officer can break into sealed

containers during a consensual search, I do not believe Springs stands for this

proposition.   In Springs, although the baby powder container had a lid (which the m

somewhat disingenuously calls a "seal"), there was no evidence in the opinion that

container was sealed in the sense that the baby powder had a factory vacuum seal co
its opening.   In fact, the baby powder container had pry marks on it suggesting tha

someone had already opened the container.   

  Thus Springs really only h


                                             14
that a police officer can remove the lid of an obviously already opened container w

is looking for drugs.

           Springs reached its conclusion in part by distinguishing the baby powder

container from the locked briefcase discussed in Jimeno on two grounds: 1) the baby

container did not have a key, and 2) opening the baby powder container would not re

useless.   For the reasons discussed above, neither distinction forecloses Fourth Am

protection in this case.   First, as was mentioned above, although the locked nature

briefcase is strong evidence of the owner's intent to keep its contents private, it

not follow that a key or lock is necessary for a box or container to be outside the

of a consensual search of this kind.   Second, Springs' discussion of "useless[ness]

suggests agreement with the principle that consent does not reasonably extend to se

that will physically damage the property being searched.   As discussed above, when

to the facts of this case, this principle suggests that Small exceeded the scope of

consent.

           It is becoming a shibboleth in this area of the law for courts to say tha

are usually not scattered loosely throughout larger containers.   See, e.g., Jimeno,

Ct. at 1804; 

.   I fully concede that it is appropriate

police officer to look at smaller containers found in luggage that may possibly con

drugs.   But once the police officer has looked at the item and it is either wrapped
sealed, it is unreasonable for the police officer to think that the consent to sear

luggage gives him license to damage the item by opening it without asking permissio

           I respectfully dissent.


0
 Moreover, before Small opened the canister, Youn said, "[i]ts closed." I believe
reasonable officer would take that to mean that he should not open the container.
majority attempts to wave this problem away in part by stating that Youn's statemen
not mean that Small should not open the canister but rather that he simply did not
what was in the canister. According to the majority, "Youn's answer was another way
saying, 'I don't know because it is closed.'" But Youn did not say "I don't know b
it is closed." He said, "It's closed."


                                             15
16