United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3394
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska
Keith A. Va Lerie,                      *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: March 9, 2004
                                Filed: October 14, 2004
                                 ___________

Before RILEY, McMILLIAN and MELLOY, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.

       Keith A. Va Lerie (“defendant”) was charged by indictment in the United
States District Court1 for the District of Nebraska on one count of possession with
intent to distribute 500 grams or more of a mixture containing cocaine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1). Now before this court is an interlocutory appeal by
the government from an order of the district court granting defendant’s motion to
suppress evidence obtained when defendant’s garment bag was searched while he was
traveling by bus and stopped at a bus station. United States v. Va Lerie,

      1
       The Honorable Joseph A. Bataillon, United States District Judge for the
District of Nebraska.
No. 8:03CR23 (D. Neb. Aug. 14, 2003) (memorandum and order) (hereinafter
“District Court Order”). For reversal, the government argues that the district court
(1) erred in holding that defendant’s garment bag was “seized” within the meaning
of the Fourth Amendment when the bag was removed from the bus and brought to a
room in the rear baggage terminal for the purpose of seeking the owner’s consent to
search the bag and (2) clearly erred in finding that defendant’s alleged consent to the
search of his garment bag was not express and was not voluntarily given. For the
reasons stated below, we affirm the order of the district court.

       Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.
Jurisdiction is proper in this court based upon 18 U.S.C. § 3731. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b).

                                    Background

       Defendant was indicted on January 23, 2003. On March 10, 2003, he filed his
motion to suppress. The motion was submitted to a magistrate judge, who held an
evidentiary hearing and permitted the parties to file post-hearing briefs. Following
those proceedings, the magistrate judge issued a report and recommendation on
June 10, 2003. United States v. Va Lerie, No. 8:03CR23 (D. Neb. June 10, 2003)
(hereinafter “Magistrate Judge’s Report”). In his report, the magistrate judge made
the following findings of fact.

       On December 23, 2002, defendant was traveling from Los Angeles, California,
to Washington, D.C., on a Greyhound bus. The bus stopped for refueling at
approximately 12:00 noon at the Greyhound bus station in Omaha, Nebraska. At that
time, Investigator Alan Eberle of the Nebraska State Patrol (“NSP”) was at the Omaha
Greyhound bus station performing duties for the NSP Commercial Interdiction Unit.
While defendant’s bus was being refueled, Eberle looked in the lower luggage
compartments of the bus. He noticed a newer-looking garment bag among three or

                                         -2-
four other bags inside one of the luggage compartments. That garment bag had a
baggage ticket bearing an individual’s name but no telephone number. It had no
additional handwritten name tag. Eberle ran a computer check of the claim number
appearing on the baggage ticket and learned that the passenger, using the name
“Valerie Keith,” had paid $164 in cash on the day of travel for a one-way ticket.
Eberle then had NSP investigators remove the garment bag from the bus and take it
into a room in the rear baggage terminal. Eberle had “Valerie Keith” or “Keith
Valerie” paged over the intercom system with instructions to come to the ticket
counter. When defendant responded, Eberle showed defendant his NSP badge and
identified himself as a law enforcement officer. Eberle told defendant that he was not
in trouble and not under arrest. Eberle asked defendant to produce his bus ticket and
some identification, which defendant did. After confirming that the name on the
ticket and identification matched the name on the garment bag, Eberle returned the
ticket and identification to defendant. Eberle then led defendant to the room in the
rear baggage terminal where defendant’s garment bag was being held. The room had
two open doors, and inside the room were two or three officers. One of the officers
in the room was Omaha Police Investigator Lutter. When asked if the garment bag
was his, defendant confirmed that it was. Eberle told defendant that he was a
narcotics investigator and that he was watching for people who might be transporting
illegal drugs. According to Eberle, he asked defendant for permission to search the
garment bag and defendant “made an affirmative verbal response to the request for
consent to the search.” Magistrate Judge’s Report at 3.2 Lutter searched the garment
bag. The search took approximately one minute. During the search Eberle made a
comment about the garment bag, and defendant responded that it belonged to a friend.
Lutter found inside the garment bag five vacuum-sealed bags containing cocaine.
Defendant was placed under arrest and taken to an NSP office where he was read his



      2
       However, when Eberle later filled out a police report concerning the incident,
he provided no details about what defendant said to give consent to the search of the
garment bag. Magistrate Judge’s Report at 3.
                                        -3-
Miranda rights. Defendant declined to waive his Miranda rights, declined to be
interviewed, and requested an attorney.3

        The magistrate judge determined that, at the time the garment bag was removed
from the bus and taken to the room in the rear baggage terminal, a Fourth Amendment
seizure occurred in the form of an investigative detention. Magistrate Judge’s Report
at 5-6. The magistrate judge nevertheless opined that Eberle had “the requisite level
of reasonable articulable suspicion” to justify the seizure. 

The magistrate
judge also noted that “the removal of the bag was done in accordance to an
understanding between Greyhound and the NSP to prevent passengers from walking
into the refueling area.” 

The magistrate judge concluded that, under the
totality of the circumstances, no Fourth Amendment violation occurred as a result of
the seizure of defendant’s garment bag. 

The magistrate judge additionally
concluded that defendant had voluntarily consented to the search of the garment bag.

The magistrate judge thus recommended denial of defendant’s motion to
suppress physical evidence obtained as a result of the search of the garment bag.


      3
        After defendant expressly declined to waive his Miranda rights and requested
an attorney, Eberle and Lutter continued to press him to cooperate. Eberle told
defendant that he (defendant) “would probably be federally prosecuted if he did not
cooperate and possible consequences would ensue”; when defendant expressed fears
about cooperating, Lutter stated that “in his (Investigator Lutter’s) extended
experience, he had never had an informant or cooperative be injured as a result of [his
or her] cooperation.” Magistrate Judge’s Report at 3-4. In his motion to suppress,
defendant sought suppression of all statements he made after invoking his Miranda
rights. The government argued that, notwithstanding the admitted Miranda violation,
the statements in question should nevertheless be admissible to impeach defendant.
The magistrate judge rejected the government’s argument and recommended
suppression of defendant’s statements. 

The government objected to that
aspect of the magistrate judge’s report and recommendation. On review, the district
court held that the statements were “inadmissible at trial for any purpose, including
impeachment.” District Court Order at 16-17. The government has not appealed that
ruling.
                                         -4-
       The parties filed objections to the Magistrate Judge’s Report.4 Regarding the
seizure of the garment bag, the district court held: “the removal of the defendant’s bag
and its sequestration in a room of the bus terminal constituted an unconstitutional
seizure in violation of the defendant’s Fourth Amendment rights because they
occurred without consent, reasonable suspicion, probable cause, or a warrant.”
District Court Order at 11. Regarding the voluntariness of defendant’s alleged
consent to the search of the garment bag, the district court noted, among other things,
that defendant was a person of sufficient intelligence to give consent, the officers
were not required to tell him that he could withhold consent, and Eberle was in plain
clothes with no visible weapon; on the other hand, defendant was “alone, in a private
room, with at least two armed police officers” and “[h]is bag was already in the
possession of law enforcement officers” when he allegedly gave his consent for them
to search it. The district court concluded that, under the totality of the circumstances,
“defendant’s consent was not voluntarily given.” 

Moreover, the district
court noted that little time had transpired between the seizure of the garment bag and
defendant’s consent, and there were no significant intervening events. The district
court held that, notwithstanding Eberle’s testimony that he was merely
accommodating Greyhound’s request that they not bring passengers to the bus while
it was parked in the refueling area, the government had not met its burden to prove
that defendant’s consent was an independent act of free will which broke the causal


      4
       Defendant objected to, among other aspects of the Magistrate Judge’s Report,
the conclusions that the seizure of the garment bag was based on articulable
suspicion, that the seizure was reasonable, that he gave consent to the search of the
garment bag, and that such consent, if given, was valid. The government objected to
the magistrate judge’s report insofar as it “denie[d] the use of defendant’s statements
for impeachment purposes should the defendant testify at trial.” See Original U.S.
District Court File (Documents #20 and #22). On review, the district court
additionally addressed the question of whether a Fourth Amendment seizure had
occurred as a result of the garment bag being removed from the bus and detained in
the room in the rear baggage terminal, even though the government did not
specifically object to that aspect of the Magistrate Judge’s Report.
                                           -5-
connection between the constitutional violation and the consent that led to the
discovery of evidence. 

The district court thus concluded that the taint
of the illegal seizure had not been purged. The district court granted defendant’s
motion to suppress, and the government timely filed this interlocutory appeal.

                                      Discussion

       As a general rule, “[w]e review the district court’s decision to grant a
suppression motion de novo while reviewing the underlying factual determinations
for clear error.” United States v. Logan, 

, 532 (8th Cir. 2004) (citing
United States v. Walker, 

, 1036 (8th Cir.) (Walker), cert. denied, 

(2003)). For purposes of the issues raised by the government in the present
appeal, we review de novo the district court’s legal conclusions concerning whether
a seizure has occurred within the meaning of the Fourth Amendment, and we review
for clear error the district court’s factual findings regarding the nature of defendant’s
alleged consent to the search. See, e.g., United States v. Smith, 

, 924 (8th
Cir. 2001) (“We review the question of whether a seizure has occurred de novo and
the district court’s determination of voluntariness for clear error.”) (citing United
States v. Mendoza-Cepeda, 

, 628 (8th Cir. 2001)).

       Property is “seized” within the meaning of the Fourth Amendment when there
is “some meaningful interference with an individual’s possessory interests in that
property.” United States v. Demoss, 

, 635 (8th Cir. 2002) (Demoss)
(quoting United States v. Jacobsen, 

, 113 (1984)); United States v. Riley,

, 1047 (8th Cir. 1991) (same). The government first argues that
defendant’s garment bag was not “seized” in the constitutional sense when Eberle had
the bag removed from a lower luggage compartment on the bus and taken to a room
in the rear baggage terminal at the Omaha Greyhound bus station. For support, the
government highlights Eberle’s testimony at the suppression hearing that, in order to
accommodate Greyhound’s request not to have excess people in the refueling area,

                                          -6-
it had been NSP’s practice for over a year to have any suspicious bag found on a bus
brought into the rear baggage terminal before an attempt was made to contact the
owner. Eberle also testified that NSP had never previously been advised that their
practice of bringing bags into the rear baggage terminal was unconstitutional. He
stated that it was his understanding that, when an NSP officer removed a bag from a
bus in this manner, the bag nevertheless remained in Greyhound’s custody and the
officers were merely taking care of it.

       The government further argues that there is no meaningful distinction – in
terms of interference with an individual’s possessory interests – between removing
a bag from a luggage compartment and setting it down in or near the bus and moving
the bag from the bus to a location farther away. The difference, the government
maintains, is merely a “geographical consideration.” Brief for Appellant at 10.

       The government also suggests that the handling of luggage not in an
individual’s actual physical possession is analogous to the handling of packages
placed in the mail stream. 

States v. Harvey, 

(8th Cir.)
(Harvey) (per curiam), cert. denied, 

(1992); United States v. Riley, 

(8th Cir. 1991)). Thus, in further support of its argument that no seizure
occurred under the Fourth Amendment, the government cites Demoss and United
States v. Gomez, 

(8th Cir. 2002) (Gomez), as analogous mail stream
cases. The government also cites, as factually similar, a Seventh Circuit case
involving a bag that was searched during bus transit, United States v. Ward, 

, 1030-33 (7th Cir. 1998) (Ward) (“Although [the officer] lacked a reasonable
basis to ‘seize’ the bag . . . we do not agree that the bag was in fact seized in a way
that implicated [the defendant’s] Fourth Amendment interests. . . . We are talking now
solely about the removal of the bag from the common luggage area of the bus.”).

      The government sums up its argument as follows:



                                          -7-
             The investigators’ activities with the bag in the instant case to the
      point where they first discussed the bag with [defendant] in the terminal
      office was not a constitutional seizure because it in no way produced
      any meaningful interference with [defendant’s] possessory interest in the
      bag. Taking the bag from the refueling area to the baggage office and
      to then find and converse with the bag owner required no constitutional
      “reasonable suspicion” because no constitutional seizure is disclosed by
      these facts. This assertion is buttressed by the testimony of Investigator
      Eberle to the effect that the officers were merely complying with
      Greyhound’s wishes, and that as far as Investigator Eberle was
      concerned the bag was still in the “custody” of Greyhound even when
      he removed it to the office in the terminal.

Brief for Appellant at 12.

       We disagree with the government’s assertion that, in the present case, the
officers’ handling of defendant’s garment bag, prior to the point at which Eberle
asked defendant for consent to search the bag, “in no way produced any meaningful
interference with [defendant’s] possessory interest in the bag.” 

has
made clear that neither the mere removal of an item from its ordinary stream of travel,
nor the distance it is moved, disposes of the Fourth Amendment “seizure” issue. Our
precedents establish that a Fourth Amendment seizure occurs when an official
“exert[s] dominion and control over the [item] by deciding to go beyond a superficial
inspection of the exterior of the [item] and to detain the [item] for further inquiry into
characteristics that [cannot] be observed by merely holding the [item].” 

n.2, cited in United States v. Morones, 

, 1111 (8th Cir.
2004).

        Defendant had a reasonable expectation of privacy in the contents of his
garment bag. That is not to say that defendant reasonably could expect that no one
would handle, observe, touch, or move his garment bag. A bus passenger who has
left his or her bag in a common luggage compartment of a bus reasonably expects the
bag to be subject to some degree of handling and movement by others. “Passengers
                                           -8-
have no objective, reasonable expectation that their baggage will never be moved
once placed in an overhead compartment. It is not uncommon for the bus driver or
a fellow passenger to rearrange the baggage in the overhead compartment or to
temporarily remove the baggage and place it in a seat or in the aisle in order to
rearrange and maximize the use of limited compartment space.” 

(removal of bag from overhead compartment of bus and placement in the
aisle was not a seizure of the bag under the Fourth Amendment); accord 

(mere removal of bag from common luggage area of a bus was not a
seizure implicating Fourth Amendment interests); cf. 

(“While [defendant’s] expectation that the package would not be opened and searched
en route was legitimate, . . . there could be no expectation that the package would not
be handled or that its physical attributes would not or could not be observed.”).

       However, a bus passenger traveling with luggage placed in a common
compartment of the bus does not reasonably expect that his or her luggage will be
physically removed from the bus without his or her knowledge and detained so that
consent to a search of the luggage may be sought. In such a situation, a detention for
the purpose of seeking consent to search is not materially different from a detention
for the purpose of conducting a canine sniff. In either situation, the item in question
is detained to pursue investigative measures beyond what reasonably should be
expected by an individual having possessory interests in the item. Indeed, the
Seventh Circuit’s decision in Ward, upon which the government relies, supports this
view. In that case, the Seventh Circuit reasoned that the owner of a bag, which was
being shipped by bus without any accompanying passenger, had no reasonable
expectation that the bag, having been surrendered to the bus company for transport,
would not be touched, handled, or even removed from the bus while en route to its
destination; however, the court went on to hold that, when the officer – having
unsuccessfully attempted to identify the bag’s owner – then decided to detain the bag
for purposes of conducting a canine sniff, he did seize the bag within the meaning of
the Fourth Amendment. 

(“[H]is initial decision to detain

                                         -9-
the bag for the canine sniff risked a delay for which the Fourth Amendment would
require justification.”); cf. 

(“It is clear under our precedent
that when [the postal inspector] moved the package to a separate room for a canine
sniff, the package was seized for Fourth Amendment purposes.”) (citing 

). We therefore hold in the present case that defendant’s garment bag
was seized within the meaning of the Fourth Amendment when Eberle had the bag
removed from the bus, taken to a room inside the rear baggage terminal, and detained
while the officer endeavored to locate the bag’s owner and obtain consent to search
the bag. Because there is no dispute in the present case that Eberle lacked reasonable
suspicion to support a seizure of the garment bag if one occurred,5 we hold that the
seizure violated defendant’s rights under the Fourth Amendment. The seizure of
defendant’s garment bag without reasonable suspicion was unconstitutional
notwithstanding the government’s claims that Greyhound had asked NSP not to bring
passengers into the refueling area, that Eberle believed the bag remained in
Greyhound’s custody at all relevant times, and that defendant was unaware that his
garment bag was being removed from the bus and handled by the NSP officers.

       The government further argues that the district court clearly erred in finding
that defendant did not voluntarily consent to the search of his garment bag and that
he also did not explicitly consent to the search. Brief for Appellant at 13 (quoting
District Court Order at 14 (“Certainly the defendant did not explicitly consent to the
search. Based on all these factors, I conclude that the defendant’s consent was not
volutarily given.”)). The government explains that it is separately challenging the
district court’s failure to find express consent because “[c]learly an explicit consent

      5
        The government expressly declines to challenge the district court’s adverse
holding that Eberle lacked reasonable suspicion to support a seizure of the garment
bag if one occurred when the bag was removed from the refueling area and brought
to the rear baggage terminal. See Brief for Appellant at 5 (“[T]he United States does
not advance the proposition that there was reasonable suspicion to remove the
garment bag from the area where the bus was being refueled to the office in the bus
terminal itself.”) (emphasis original).
                                         -10-
carries a presumption of voluntariness that might be harder to discern in an implicit
consent.” Brief for Appellant at 16. However, regarding the district court’s separate
adverse finding that defendant’s consent was not an independent act of free will, see
District Court Order at 16, the government asserts:

             The district court’s discussion of whether the defendant’s consent
      to search was a[n] “independent act of free will that broke the causal
      chain between the unconstitutional violation and the consent” is really
      irrelevant in light of the United States’ assertion that no unconstitutional
      seizure took place. The only question presented is whether the
      consent – whether it be the implicit consent found by the court below or
      the explicit consent advanced by the United States on this appeal – was
      voluntary in light of the totality of the circumstances.

Brief for Appellant at 20-21.

       In other words, the government’s whole argument vis-a-vis the alleged consent
to the search of the garment bag is premised upon the assumption that, when
defendant’s garment bag was removed from the bus and placed in the room in the rear
baggage terminal, no seizure occurred within the meaning of the Fourth Amendment.
The government has thus waived the argument that defendant’s consent purged the
taint of the illegal seizure if an illegal seizure occurred.6

      As the district court explained, the law is well-established that, if the garment
bag was seized in violation of the Fourth Amendment, the evidentiary fruits of that
seizure must be suppressed unless the government, in relying upon defendant’s


      6
        Just as the government has made the tactical decision not to challenge the
district court’s lack-of-reasonable-suspicion holding in this interlocutory appeal, see
supra note 5, so too has the government decided not to challenge the district court’s
adverse finding that defendant’s alleged consent was not an independent act of free
will that broke the causal chain between the unlawful seizure and the alleged consent
leading to the search of the garment bag.
                                         -11-
consent to the search, can prove (1) that the consent was voluntary and (2) that it was
an independent act of free will that broke the chain of causation between the illegal
seizure and the consent that permitted the discovery of evidence. See District Court
Order at 12-14 (“The challenged evidence is admissible if 1) the consent was
voluntarily given, and 2) the consent was ‘an independent act of free will.’”) (citing
United States v. Chavez-Villarreal, 

, 127 (5th Cir. 1993)); see also United
States v. Becker, 

, 861-62 (8th Cir. 2003) (“Even if [the defendant’s]
consent to the search was voluntary, we must also consider, for purposes of the
Fourth Amendment, whether [the defendant’s] consent was given in circumstances
that render it an independent, lawful cause of [the officer’s] discovery of the
methamphetamine”)7; United States v. Ramos, 

, 1164 (8th Cir. 1994)
(where the defendants were detained in violation of the Fourth Amendment, “[t]he
further question [was] whether [one of the defendant’s] consent, found to be
voluntary by the District Court, was ‘sufficiently an act of free will to purge the
primary taint.’”) (citing Wong Sun v. United States, 

, 486 (1963)), cert.
denied, 

(1995); Brown v. Illinois, 

, 601-02 (1975)
(“[E]ven if the statements in this case were found to be voluntary under the Fifth
Amendment, the Fourth Amendment issue remains. In order for the causal chain,
between the illegal arrest and the statements made subsequent thereto, to be broken,
Wong Sun requires not merely that the statement meet the Fifth Amendment standard
of voluntariness but that it be ‘sufficiently an act of free will to purge the primary
taint.’”).




      7
        Regarding this second factor – that is, whether the consent was an independent
act of free will – this court further explained: “In determining whether the taint is
purged from evidence seized during the allegedly unlawful detention, we consider the
following factors: (1) the temporal proximity between the illegal search or seizure and
the consent; (2) the presence of intervening circumstances; and (3) the purpose and
flagrancy of the official misconduct.” United States v. Becker, 

, 862 (8th
Cir. 2003) (citing Brown v. Illinois, 

, 603-04 (1975)).
                                         -12-
       The government bears the burden to prove that defendant gave consent that was
both voluntary and an independent act of free will. See Brown v. 

(“And the burden of showing admissibility rests, of course, on the
prosecution.”). In light of the government’s tactical decision in the present
interlocutory appeal not to challenge the district court’s adverse finding that
defendant’s alleged consent was not an independent act of free will, the exclusionary
rule applies. Accordingly, we need not consider whether the district court clearly
erred in its findings concerning the voluntariness of defendant’s alleged consent.

                                    Conclusion

      The order of the district court granting defendant’s motion to suppress is
affirmed.



MELLOY, Circuit Judge, concurring.

       I concur in the result of this case because I believe the seizure issue is
controlled by this Court's decision in United States v. DeMoss, 

(8th Cir.
2002). See also, United States v. Walker, 

(8th Cir. 2003); and United
States v. Morones, 

(8th Cir. 2004). DeMoss held that the removal of
a package from a Federal Express conveyor belt to a nearby room for further
inspection constituted a seizure. 

. In this case, the removal
was even more intrusive than the removal the Court held to be a seizure in DeMoss.
In DeMoss, the package had been given to Federal Express for delivery. In our case,
Mr. Va Lerie was traveling on the same bus with his luggage, and the luggage was
removed from the checked luggage bin of the bus to a separate building. For
purposes of Fourth Amendment analysis, I find the present facts to be
indistinguishable from DeMoss and, therefore, based upon our prior precedent, a
seizure occurred.

                                        -13-
       It is also important to note that the government expressly conceded that there
was no reasonable suspicion to remove Mr. Va Lerie’s luggage. As the majority
opinion notes, the government also elected, in this case, not to argue that Mr. Va
Lerie's consent to search purged the taint of the illegal seizure. The government made
the tactical decision to challenge the district court decision solely on the grounds that
the district court was wrong in its ruling that a seizure occurred. Based upon our
prior precedent, I believe the majority correctly analyzed that issue, and the luggage
was seized.

       Having said that, however, I believe that our prior precedent dealing with the
definition of a seizure is of questionable validity. Specifically, I join in Judge
Hansen's well-written concurrence in DeMoss. I believe that our cases place undue
emphasis on the issue of whether there was more than a superficial review of the
package, or whether the package (or in this case, a piece of luggage) was moved to
another room. Proper analysis requires consideration of the temporal element of the
inspection. I believe that a brief detention of a piece of luggage that does not result
in the delay of either the passenger, or ultimate delivery of the luggage, is not a
seizure. Other circuits have so held. See, e.g., United States v. Johnson, 

, 1132 (9th Cir. 1992); United States v. Ward, 

, 1031-32 (7th Cir.
1998); and United States v. Lovell, 

, 916 (5th Cir. 1988).

        To be fair to the appellee in this case, the record is not well developed on the
issue of whether the removal of the luggage from the bus would have resulted in any
delay in its ultimate delivery. Like many cases, this one evolved through the
litigation process. At the initial hearing before the magistrate judge, the parties
focused the evidentiary record on whether there was reasonable suspicion to seize the
luggage and whether the defendant consented to the search. The parties seemed to
assume that a seizure occurred. It was not until later that the government abandoned
the reasonable suspicion argument and focused on the seizure issue. Consequently,

                                          -14-
the record is unclear as to what delay, if any, there may have been in the ultimate
delivery of the luggage. The record is clear that the bus had not left at the time the
drugs were discovered because officers went onto the bus to remove Mr. Va Lerie's
carry-on items after the search. It is unclear, however, how much time elapsed
between the removal of the luggage from the luggage bin and the discovery of the
drugs. It does appear that this time period was fairly brief. It is also unclear as to
whether the bus was held by law enforcement to allow for the removal of the carry-on
items or whether the scheduled departure had not yet occurred (assuming those facts
are even relevant).

      In sum, I concur. I believe that based upon our prior precedent, a seizure
occurred. At some point, however, I believe our circuit should re-visit the issue of
what constitutes a seizure in the context of a temporary removal and inspection of
packages and luggage that have been sent or checked with common carriers.

RILEY, Circuit Judge, dissenting.

       Our federal Constitution mandates “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend. IV; see United States v. Ameling, 

, 447 (8th Cir. 2003) (Fourth Amendment applies to states through the
Fourteenth Amendment). This appeal asks whether the Nebraska State Patrol’s (NSP)
removal of a commercial bus passenger’s checked luggage from the bus’s lower
luggage compartment to a room inside the bus terminal constituted an unreasonable
seizure in violation of the Fourth Amendment. Because Eighth Circuit precedent in
this area has evolved into different lines of authority, and because I would not follow
the line chosen by the majority, I respectfully dissent. Based on my analysis of this
circuit’s precedent, I would hold law enforcement’s temporary removal of a
commercial bus passenger’s checked luggage from a lower luggage compartment to
a room inside the terminal does not constitute a seizure if the removal of the luggage

                                         -15-
does not delay the passenger’s travel, affect the timely delivery of the checked
luggage, or interfere with the carrier’s normal processing of the checked luggage. I
also join Judge Melloy’s plea to our circuit to “re-visit the issue of what constitutes
a seizure in the context of a temporary removal and inspection of packages and
luggage that have been sent or checked with common carriers.”

       This panel has no authority to overrule a prior panel’s decision; only the court
sitting en banc can take such action. Netland v. Hess & Clark, Inc., 

,
899 (8th Cir. 2002). However, when a panel is confronted with varying lines of
cases, the panel is “free to chose which line of cases to follow.” Kostelec v. State
Farm Fire & Cas. Co., 

, 1228 n.8 (8th Cir. 1995).

       Our circuit’s precedent on what constitutes a seizure in cases involving
checked luggage or mailed packages is not a model of clarity. Compare United States
v. Gomez, 

, 923-24 (8th Cir. 2002) (holding no seizure occurred when
a drug interdiction officer at a U.S. Postal Service facility moved a package to a
command center twenty yards from a conveyor belt in a sorting area), United States
v. Vasquez, 

, 426 (8th Cir. 2000) (holding no seizure occurred when
drug interdiction officers at a Federal Express facility subjected a package to a drug-
sniffing dog), United States v. Harvey, 

, 1363-64 (8th Cir. 1992)
(holding no seizure occurred when police removed luggage from a bus’s overhead
luggage compartment to subject the luggage to a drug-sniffing dog), and United
States v. Riley, 

, 1048 n.4 (8th Cir. 1991) (implying no seizure
occurred when police subjected an airline passenger’s checked luggage to a drug-
sniffing dog), with United States v. Morones, 

, 1111 (8th Cir. 2004)
(holding seizure occurred when a law enforcement officer at a Federal Express
facility removed a package from a conveyor belt to subject the package to a drug-
sniffing dog), and United States v. Demoss, 

, 636 (8th Cir. 2002) (same).
Following the principles enunciated in Harvey, Vasquez and Gomez, I conclude the



                                         -16-
removal of Va Lerie’s checked luggage from the bus’s lower luggage compartment
to a room inside the terminal was not a seizure under the Fourth Amendment.

       The Fourth Amendment protects against both unreasonable searches and
unreasonable seizures. The Supreme Court has stated “[a] ‘search’ occurs when an
expectation of privacy that society is prepared to consider reasonable is infringed.”
United States v. Jacobsen, 

, 113 (1984). The Court declared “[a]
‘seizure’ of property occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” 

recognized seizure
relates to freedom of movement: “While the concept of a ‘seizure’ of property is not
much discussed in our cases, this definition follows from our oft-repeated definition
of the ‘seizure’ of a person within the meaning of the Fourth Amendment–
meaningful interference, however brief, with an individual’s freedom of movement.”

is not a search case; this is a seizure case. And this is not a seizure case
involving luggage physically possessed by a commercial bus passenger. See United
States v. Place, 

, 708 (1983) (recognizing detention of luggage within
passenger’s immediate possession intrudes on passenger’s freedom of movement, in
addition to the luggage’s freedom of movement, such that the passenger’s travel plans
may be disrupted). This case involves checked luggage, which a passenger cannot
claim until the luggage reaches its destination.8


      8
        A casual observer might cite Florida v. Royer, 

, 507 (1983), to
support the district court’s decision in this case. A plurality in Royer held an airline
passenger had been detained in violation of the Fourth Amendment. In 

, law enforcement officers became suspicious of an airline passenger who
fit a drug courier profile. The officers approached the passenger in the airport
terminal after the passenger had checked his luggage and headed for his boarding
area. Ultimately, the officers and the passenger ended up in a private room off the
concourse. The officers also retrieved the passenger’s luggage from the airline and
brought the luggage to the room. When asked whether the officers could search the
                                           -17-
       To understand the state of Eighth Circuit precedent in Fourth Amendment
seizure cases, I will discuss a few cases which, to me, announce different standards,
reach inconsistent results, and create a division in our circuit authority. In United
States v. Harvey, 

, 1362 (8th Cir. 1992), police officers and a drug-



luggage, the passenger produced a key and unlocked one piece of luggage. A
fractured Supreme Court asked whether a state court properly applied Fourth
Amendment principles in holding the airline passenger “was being illegally detained
at the time of his purported consent to a search of his luggage.” 

justices held the passenger had been detained in violation of his Fourth Amendment
rights, only three justices (Justices White, Marshall and Stevens) mentioned the
possibility that an illegal seizure of the passenger’s luggage had occurred. 

(stating the officers had the passenger and his seized luggage in the private room).
These justices did not discuss the seizure issue or their analysis in concluding the
luggage had been seized. Instead, these justices simply stated the luggage had been
seized. Justice Powell, who cast the critical fifth vote, wrote a separate concurrence
in which he focused on the passenger, not the luggage. In doing so, he referenced
how the officers, when they met with the passenger in the private room, “already had
obtained possession of his checked luggage.” 

(Powell, J., concurring).
Justice Brennan, who wrote a separate concurrence, did not discuss whether the
luggage had been seized, but rather wrote the passenger had been seized illegally
when the officers first stopped the passenger. 

(Brennan, J., concurring).
Justice Blackmun, who wrote a separate dissent concluding the passenger’s Fourth
Amendment rights had not been violated, wrote “[t]he officers acted reasonably in
taking [the passenger]’s baggage stubs and bringing his luggage to the police room
without his consent.” 

n.3 (Blackmun, J., dissenting). Finally, Justice
Rehnquist, with whom Chief Justice Burger and Justice O’Connor joined, wrote a
separate dissent concluding the officers’ conduct was reasonable and the passenger’s
Fourth Amendment rights had not been violated. 

(Rehnquist, J.,
dissenting). At no point did Justice Rehnquist intimate the officers seized the
passenger’s luggage when they retrieved the luggage from the airline. Understanding
our seizure precedent is a formidable task by itself. Trying to understand and apply
the Supreme Court’s decision in Royer is even more daunting. Suffice it to say, a
majority of justices in Royer did not agree on–and certainly did not articulate–a
standard to be applied in Fourth Amendment seizure cases involving checked
luggage. Therefore, I cannot rely on Royer, but relegate Royer to this footnote.
                                            -18-
sniffing dog, on a mission to find illegal drugs, boarded a Greyhound bus after it
stopped for cleaning and refueling. The dog alerted to an overhead luggage
compartment. The officers removed some luggage from the overhead compartment,
and the dog alerted to two bags. The officers returned the bags to the overhead
compartment and exited the bus. After the passengers re-boarded the bus, the officers
asked who owned the bags to which the dog had alerted. When two passengers
acknowledged they owned the bags, the officers asked them to take their bags off the
bus and wait for the officers. Confronted with the question whether the removal of
the bags from the overhead compartment constituted an unlawful seizure, we held it
did not. 

Our court held “there was no meaningful interference with [the
passengers]’ possessory interests in their baggage,” because “the temporary removal
of the bags caused no delay to [their] travel.”9 

       In United States v. Vasquez, 

, 426 (8th Cir. 2000), drug
interdiction officers examined packages at a Federal Express sorting station. When
the officers’ suspicions about a certain package became aroused, the officers used a
drug-sniffing dog to sniff the package. After the dog alerted to the package, the
officers detained the package, and later obtained a search warrant. Asking whether
the officers seized the package, our court held “the officers’ actions in examining the
outside of the package and then subjecting the package to a dog sniff as it sat at the
rear of the delivery truck do not constitute a detention requiring a reasonable,
articulable suspicion because, at that point, the officers had not delayed or otherwise
interfered with the normal processing of the package.” 

this


      9
       Our decision in Harvey was later cited by a federal district court in Kansas.
In United States v. Wood, 

, 1224 (D. Kan. 1998) (citing 

), the district court relied on Harvey in pronouncing “a seizure
[does not] occur when baggage is temporarily removed from one public area to
another without causing any delay in travel plans.” The court held the only
possessory interest a mailer of a package has is a “contract-based expectancy that the
package would be delivered to the designated address” at the expected time. 

States v. LaFrance, 

, 7 (1st Cir. 1989)).
                                         -19-
conclusion, the court relied on Harvey and United States v. Ward, 

(7th
Cir. 1998). Having already discussed Harvey, I will discuss the Seventh Circuit’s
decision in Ward.

       In 

, an individual checked a bag with a Greyhound
luggage handler, who placed the bag in the luggage compartment accessible only
from the outside. The bag’s owner did not board the bus, but instead flew to the bus’s
destination to await the bus and claim the bag. When the bus stopped for a passenger
meal break, drug enforcement officers questioned some bus passengers. When an
officer’s investigation led him to the outside luggage compartment, he noticed a
suspicious bag. When no passenger claimed ownership of the bag, the officer
removed the bag from the bus to subject the bag to a drug-sniffing dog. Before a dog
could arrive at the bus station, the bus left without the detained bag. When a dog
finally arrived, it alerted to the bag. Once a search warrant was obtained, the officer
searched the bag and discovered a kilogram of cocaine and a semi-automatic handgun
loaded with hollow-point bullets. Drug enforcement officers then set up a sting at the
bus’s final destination, and caught the bag’s owner as he attempted to claim his bag.

       Did the drug enforcement officers violate the bag owner’s Fourth Amendment
rights by unlawfully seizing his bag? The Seventh Circuit held they did not. 

The bag’s owner argued the officers were constitutionally authorized only
to handle the bag and remove it from the compartment. The Seventh Circuit
disagreed, and recognized the defendant “could reasonably have foreseen that the bag
would be handled, moved around, and even taken off the bus, whether at intermediate
stops when the driver might need to remove the bag to sort and/or gain access to other
luggage, or at a hub like St. Louis where the bag would have been transferred to
another bus. He could have no reasonable expectation, in other words, that the bag
would not be touched, handled, or even removed from the bus prior to the bag’s
arrival” at its destination. 

Thus, the court held the detention of the bag
would have been a seizure only when it “interfer[ed] with [the defendant]’s

                                         -20-
contractually-based expectation that he would regain possession of the bag at a
particular time.” 

       In United States v. Demoss, 

, 634 (8th Cir. 2002), a law
enforcement officer was working drug interdiction at a Federal Express facility when
he noticed a suspicious package. The officer removed the package from a conveyor
belt, and then noticed some indicators the package contained drugs. The officer took
the package to another room in the facility and subjected the package to a dog sniff.
Based on these facts, the court asked when a Fourth Amendment seizure occurred.
The court concluded no seizure occurred when the officer removed the package from
the conveyor belt. 

However, the court held the package was seized when
the officer “moved the package away from the conveyor belt and detained the
package for a canine sniff,” because the officer “exert[ed] dominion and control over
the package.” 

(quoting 

n.18) (alteration in
original). Notwithstanding the seizure holding, the court held the seizure was not
unreasonable because the officer had reasonable suspicion to detain the package. 

-37.

       The court’s ultimate holding garnered the concurrence of Judge Hansen, who
wrote separately to state his belief “that no seizure occurred in this case until [the
officer] infringed upon [the defendant]’s interest in the timely delivery of the
package.” 

(Hansen, J., concurring). In reaching this conclusion, Judge
Hansen discussed Harvey, Vasquez and Ward, focusing his Fourth Amendment
seizure analysis on whether a package’s “ultimate contracted for timely delivery [is]
frustrated.” 

Judge Hansen also impliedly recognized our seizure
jurisprudence has not been settled: “I choose to cast my lot with those cases both from
this and other circuits indicating that a piece of luggage or mail delivered to a
common carrier is not ‘seized’ within the meaning of the Fourth Amendment until the
authorities have interfered with a possessory interest in the luggage or mail such that
the expectation of timely delivery of the package or luggage has been frustrated.” 

months after our court decided Demoss, we decided United States v.
Gomez, 

, 923 (8th Cir. 2002), in which we said removing a package at
a post office from a conveyor belt to a position twenty yards away “was minimal
interference with [the mailer]’s possessory interest in the package.” We further
stated, “When the package was taken to the command post, away from the normal
activity near the conveyor belt but still within the confines of the processing center,
it was merely ‘stopped,’ and reasonable suspicion was not required for that stop.” 

Specifically distinguishing Demoss, the court ultimately held the package
“was not seized until [the officer] opted not to return it to the conveyor belt for
transfer to its intended destination, that is, until he ‘exert[ed] dominion and control
over the package for [his] own purposes.’” 

(quoting 

n.18) (alteration in original).

       Finally, our court again addressed a seizure issue earlier this year. In United
States v. Morones, 

, 1110 (8th Cir. 2004), a police officer was
inspecting packages at a Federal Express facility when he removed a package from
a conveyor belt, set it aside, and retrieved a drug-sniffing dog, which alerted to the
package. Our court held the officer “exercised ‘meaningful interference’ with [the
mailer]’s ‘possessory interests’ in the package–that is, he seized it–when he removed
it from the mail stream and held it for the dog sniff.” 

      If anything is clear, it is that our seizure cases involving checked luggage and
mailed packages are not.

        The doctrine of stare decisis, which means to stand by things decided,
“promotes the evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Payne v. Tennessee, 

, 827
(1991). The Supreme Court has recognized “the important doctrine of stare decisis
. . . ensure[s] that the law will not merely change erratically, but will develop in a

                                         -22-
principled and intelligible fashion.” Vasquez v. Hillery, 

, 265 (1986).
The Court also has acknowledged stare decisis “permits society to presume that
bedrock principles are founded in the law rather than in the proclivities of individuals,
and thereby contributes to the integrity of our constitutional system of government,
both in appearance and in fact.” 

       It is absolutely critical that citizens and law enforcement understand what the
Fourth Amendment protects. Unfortunately, our decisions in the Fourth Amendment
seizure area do not clearly enunciate and faithfully apply a consistent standard. Our
court should uniformly resolve Fourth Amendment seizure cases to help our citizens
understand the freedoms guaranteed by their Constitution. Consistent resolution of
these cases also will ensure law enforcement fulfills its solemn duties in a
constitutional manner. Although any debate over the scope of the Seizure Clause of
the Fourth Amendment necessarily and rightly concentrates on the rights of our
citizens, there should be little debate that law enforcement officers must understand
what conduct the Fourth Amendment authorizes and what conduct it condemns.

       Efforts to rid our society of illegal drugs are indeed solemn tasks: “The public
has a compelling interest in detecting those who would traffic in deadly drugs for
personal profit. Few problems affecting the health and welfare of our population,
particularly our young, cause greater concern than the escalating use of controlled
substances. Much of the drug traffic is highly organized and conducted by
sophisticated criminal syndicates. The profits are enormous. And many drugs . . .
may be easily concealed. As a result, the obstacles to detection of illegal conduct
may be unmatched in any other area of law enforcement.” United States v.
Mendenhall, 

, 561-62 (1980) (Powell, J., concurring). I urge the court
to speak with one voice about the appropriate standard for Fourth Amendment seizure
cases.




                                          -23-
       When studying our circuit’s seizure cases, do our holdings depend on how far
law enforcement officers move a package or piece of luggage? Do we focus on the
commercial traveler’s expectations? Do we fully discuss what possessory interests
a commercial traveler has in his checked luggage? One principle which is beyond
reproach is commercial travelers expect their luggage to be handled. Of course, if
their luggage were not handled, it could hardly reach its destination. It would seem
obvious that, once a traveler checks his luggage, he gives up his immediate
possessory interests in that luggage until he claims his luggage at its destination.
During his travel, he must expect his luggage to endure a fair amount of handling,
including the removal of his luggage from the luggage compartment. For instance,
a commercial passenger’s luggage may be damaged in transit and require removal
from the luggage compartment. If a bus breaks down, a passenger should expect his
luggage to be removed from the luggage compartment and either transferred to
another bus or taken inside the bus terminal. When a bus reaches its destination,
every passenger expects–or at least hopes–his luggage survived the trip and will be
removed from the bus and taken to the luggage claim area. Thus, I conclude the
Fourth Amendment does not frown on law enforcement handling luggage checked by
a commercial bus passenger to the same degree as a reasonable traveler would expect
the bus company’s employees to handle the luggage, as long as any interference does
not delay the traveler or frustrate his expectations of timely delivery at the luggage’s
destination.

       If painting on a blank canvas, Judge Melloy would hold “a brief detention of
a piece of [checked] luggage that does not result in the delay of either the passenger,
or ultimate delivery of the luggage, is not a seizure.” I agree with this standard, as
have other circuits. See, e.g., 

; United States v. Johnson,

, 1132 (9th Cir. 1992); United States v. Lovell, 

, 916 (5th




                                         -24-
Cir. 1988). As discussed above, I also believe some of our cases already have
announced–and even applied–this standard.

       The NSP’s handling of Va Lerie’s luggage did not constitute a seizure under
the Fourth Amendment, because the handling did not amount to a meaningful
interference with Va Lerie’s possessory interest in his luggage nor impact Va Lerie’s
freedom of movement. When the NSP removed Va Lerie’s checked luggage from the
bus’s lower luggage compartment to a room inside the terminal and asked Va Lerie
to consent to a search of his luggage, Va Lerie’s travel was not delayed. While
Va Lerie reasonably should have expected his checked luggage would be handled by
Greyhound employees, Va Lerie’s possessory interest in his checked luggage
certainly did not include an expectation that Greyhound–or others at Greyhound’s
request–would not remove the luggage from the lower luggage compartment. The
NSP removed Va Lerie’s checked luggage from the lower luggage compartment to
a room inside the terminal at Greyhound’s request, and the NSP never took custody
of the luggage from Greyhound. Had the NSP ignored Greyhound’s request to
remove the luggage from the lower luggage compartment to a room inside the
terminal and asked Va Lerie for consent to search while standing by the bus, I cannot
imagine this court holding an unlawful seizure occurred. By handling the luggage in
a way requested by Greyhound and consistent with Va Lerie’s expectations as to how
his luggage would be handled, I cannot comprehend how this constitutes a
meaningful interference with Va Lerie’s possessory interest in his luggage. Applying
the proper Fourth Amendment seizure principles to this case, I conclude an
unreasonable seizure did not occur when the NSP removed Va Lerie’s checked




                                        -25-
luggage from the lower luggage compartment to a room inside the terminal to ask
Va Lerie for consent to search the luggage.10
                       ______________________________




      10
         Two other issues lurk beneath the surface in this case. First, do Fourth
Amendment seizure principles change depending on whether we confront checked
luggage at the airline terminal or checked luggage at the bus terminal? Second, do
domestic and worldwide terrorist events involving commercial transportation impact
our Fourth Amendment seizure analysis involving checked luggage? The district
court made a cursory pass at these issues. Specifically, the district court discussed the
impact the tragic events of September 11, 2001, have on commercial travel in
America and on Fourth Amendment seizure jurisprudence. The district court stated
“[p]assengers on a bus–unlike airline passengers–still retain some expectation of
privacy in their baggage that the court is required to protect,” and also opined “train
passengers–and presumably bus passengers as well–have not yet had to surrender all
subjective expectations of privacy in their personal luggage.” United States v.
Va Lerie, No. 8:03CR23, 

, *2-3 (D. Neb. Aug. 14, 2003).
However, the district court also recognized we live in a dramatically altered world
since our Nation was attacked on September 11: “Based on the national security
measures introduced following the events of 9/11, air travelers can no longer have a
subjective expectation of privacy in luggage or personal property. However, national
security concerns with bus and train travel are somewhat less pressing than those with
air travel. . . . Because the mandatory search provisions for luggage and packages put
on airplanes do not apply to trains or buses, train or bus travelers can at least argue
that they have a subjective expectation of privacy in their personal property, subject
to the many qualifications already imposed by Fourth Amendment case law. But
whether a post-9/11 society would recognize any mass transit traveler’s subjective
expectation of privacy as objectively reasonable is, obviously, another matter.” 

n.1 (citations omitted). Ultimately, the district court concluded that, “until
Congress or the Eighth Circuit decides differently, a bus passenger’s subjective
expectation of privacy, however limited, is one that society is prepared to recognize
as reasonable.” 

. Since the district court penned these words, we have
witnessed terrorist bombings of trains in Madrid, Spain, numerous bus bombings in
Israel, and bombings in other nations.

      The district court raises issues vitally important to this Nation. However, I do
not need to address these issues at this time in this case, because Fourth Amendment
seizure principles dictate Va Lerie’s checked luggage was not seized when it was
removed from the bus to a room inside the terminal.
                                           -26-