PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-6289
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D. C. Docket No. 1:96-CR-00188-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER MOSQUERA GUAPI,
a.k.a. Guapi Lebron, Jr.,
a.k.a. Alfonso Medina Saaverdra,
a.k.a. Walter Mosquera,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Alabama
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(June 29, 1998)
Before HATCHETT, Chief Judge, RONEY and CLARK, Senior Circuit Judges.
RONEY, Senior Circuit Judge:
This appeal challenges the legality of a warrantless search of all carry-on luggage on a
Greyhound bus. The search revealed cocaine in the defendant’s luggage. The district court found
the search to be constitutional because the defendant consented to the search. Although defendant
did indeed consent in this case, under the circumstances in which the consent was obtained, it was
not an uncoerced, voluntary consent as is required to validate such a warrantless search. Therefore,
we reverse the conviction and hold that this search violated the Fourth Amendment’s protection
against unreasonable searches and seizures.
The police officers conducting this search did not inform the passengers that they were not
required to consent to the search. Although we reject the notion of a per se rule requiring bus
passengers to be informed of their constitutional rights, the facts and circumstances of this search
required some indication to passengers that their cooperation was voluntary rather than mandatory.
Because no such indication was provided, and because a reasonable person traveling in this bus
would not have felt free to ignore the search request, we hold that this search was unconstitutional.
On September 14, 1996, a Greyhound bus en route from Houston to Miami made a scheduled
stop in Mobile, Alabama. The driver of the bus, Herbert Braggs, informed all passengers that they
would be required to temporarily exit the bus at the Mobile terminal. Before passengers could
depart, however, two members of the Mobile Police Department’s Drug Interdiction Unit, one in full
uniform and one in plain clothes, boarded the bus. Officer Marvin Whitfield, the uniformed officer,
stood at the front of the bus and made the following announcement:
I’m Officer Marvin Whitfield with the Mobile Police Department Drug interdiction
Unit. With your cooperation, I’d like to check on-board cargo for illegal contraband
such as alcohol, narcotics, weapons, or explosives. With your consent and
cooperation, I’d like to ask you to bring down your on-board luggage if you have any
overhead and have it open so I can do a quick on-board inspection.
Officer Whitfield did not inform the passengers that they could refuse to consent to the search, or
that they could simply leave the bus with their luggage. While Braggs, the bus driver, went into the
terminal to complete his paperwork, Officer Whitfield and his partner, a plain-clothes female officer,
waited for the passengers to bring down and open their bags. Officer Whitfield then proceeded
down the aisle of the bus, beginning from the front, while his partner waited in the area normally
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occupied by the bus driver. As he walked down the aisle, Officer Whitfield inspected each
passenger’s opened bag for contraband items. When he had finished searching the individuals
seated in a particular row and moved on to the next row of seats, the passengers who had just been
searched were free to exit the bus.
Along with all of the other passengers on the bus, Walter Mosqueri Guapi retrieved his carry-
on luggage from the overhead storage bin and held it open for Officer Whitfield’s inspection.
Officer Whitfield did not speak with Guapi, but he looked under some clothing in Guapi’s bag and
saw a brick-like form which he believed might be narcotics. Officer Whitfield asked Guapi if the
brick-like form was contraband and the defendant responded affirmatively. At this point, Officer
Whitfield asked Guapi to exit the bus with him. Outside the bus, Officer Whitfield placed Guapi’s
carry-on bag among the checked luggage in a roped-off cargo area and instructed his trained
narcotics dog to conduct a sniff test. The canine alerted on Guapi’s bag, Guapi admitted that there
was cocaine in the bag, and Officer Whitfield placed Guapi under arrest.
In Florida v. Bostick, the Supreme Court reversed a Florida Supreme Court decision which
adopted a per se rule prohibiting police from randomly boarding buses and questioning passengers
as a means of drug interdiction. Florida v. Bostick, 501 U.S. 429 (1991). The Supreme Court had
previously held that the Fourth Amendment permits officers to approach individuals at random in
airport lobbies and other public places to ask questions and to request consent to search their
luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.
See Florida v. Royer, 460 U.S. 491, 502 (1983); United States v. Mendenhall, 446 U.S. 544, 554
(1980). In Bostick, the Court simply held that rule applies equally to police encounters that take
place on buses. It rejected the “free to leave” rubric that has been articulated for street encounters
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because a passenger may well not want to leave the bus because he or she wants to go when the bus
goes, so that factors other than the police encounter would dilute the application of the “free to
leave” determination. It held that the appropriate inquiry is whether under “all the circumstances
surrounding the encounter . . . the police conduct would have communicated to a reasonable person
that the person was not free to decline the officers’ requests or otherwise terminate the encounter.”
Bostick, 501 U.S. at 439. It held that the fact the encounter is in the cramped confines of a bus is
but one factor to be taken into consideration, rather than the sole consideration given by the Florida
court.
In Bostick, the Supreme Court found two facts “particularly worth noting. First, the police
specifically advised Bostick that he had the right to refuse consent. . . . Second, at no time did the
officers threaten Bostick with a gun.” Bostick, 501 U.S. at 432. In this case, although Officer
Whitfield did not threaten Guapi with a gun, he also did not inform Guapi that he had a right to
refuse consent. In both of our prior reported bus search cases, the police officers involved also
specifically informed individual passengers that they had a right to refuse any search and that
cooperation with law enforcement efforts was voluntary. United States v. Fields, 909 F.2d 470, 472
(11th Cir. 1990); United States v. Hammock, 860 F.2d 390, 392 (11th Cir. 1988).
The Supreme Court has steadfastly rejected the notion of imposing per se rules on police
officers conducting warrantless searches. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996);
Bostick, 501 U.S. at 435-37 (1991). The Court has specifically rejected the notion that police
officers must always inform citizens of their right to refuse when seeking permission to conduct a
warrantless consent search. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). It is enough
that the circumstances themselves would indicate that the search can proceed only if consent is
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given. Looking at the circumstances of this case, we feel that a reasonable person in the defendant’s
position would not have felt free to disregard Officer Whitfield’s requests without some positive
indication that consent could have been refused.
The district court erred when it adopted the magistrate judge’s report finding that a
reasonable person would have felt free to decline Officer Whitfield’s requests under these
circumstances. The magistrate judge’s report and recommendation stated that “independent factors
(such as the cramped confines of a crowded bus) should not weigh in the Court’s calculus,” and
concluded as a matter of law that “Officer Whitfield did not touch or grab Defendant, block his path
of egress, or retain something of value from him. . .” and that “a reasonable person in Defendant’s
position would have felt free to decline the officer’s request.” This incorrectly states the law, and
erroneously applies the law to the facts of this case.
The district court was incorrect when it stated that it was irrelevant that this encounter took
place on a bus. The Supreme Court in its Bostick opinion specifically stated that “[w]here the
encounter takes place” is a factor to consider, Bostick, 501 U.S. at 437, and our own precedent also
requires district courts to examine the constitutionality of bus searches in light of the unique
circumstances inherent in that particular mode of transportation. See Fields, 909 F.2d at 474;
Hammock, 860 F.2d at 393. As this case graphically illustrates, the cramped confines of a bus create
an environment uniquely susceptible to coercive police tactics. Furthermore, police must do more
than simply avoid a laundry list of the most egregiously abusive police tactics, such as threatening
or assaulting passengers or confiscating valuable personal items, in order to avoid illegally seizing
a citizen exercising the constitutional right to interstate travel. To the contrary, police must behave
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in a manner calculated to convey to a reasonable person that cooperation with law enforcement is
voluntary.
In sharp contrast to the Broward County Sheriff’s Office search procedure upheld in Bostick,
Hammock and Fields, Officer Whitfield’s search showed little or no effort to convey to passengers
that their cooperation was voluntary. It was carefully designed to convince passengers that they had
no choice but to accede to Officer Whitfield’s demands. The most glaring difference between the
search in this case and the searches upheld in Bostick, Fields and Hammock is the complete lack of
any notification to the passengers that they were in fact free to decline the search request. While we
eschew the notion of a per se rule requiring bus passengers to be informed of their constitutional
rights prior to a search, the absence of such a notice is an important factor in this case. Providing
a simple notification to bus passengers that they are free to decline a search is perhaps the most
efficient and effective method to ensure compliance with the Constitution. Because no such notice
was given in this case, we look to the other circumstances surrounding the search, and conclude that
Officer Whitfield’s search was constitutionally unreasonable.
Upon arrival in Mobile, and before Officer Whitfield had boarded, Herbert Braggs, the driver
of the bus, had informed passengers that they would be required to exit the bus. In Bostick, the court
noted that a reasonable person in Bostick’s position would not have wanted to leave because he had
voluntarily confined himself to a departing bus. Bostick, 501 U.S. at 436. Guapi, on the other
hand, had arrived at the gate and been instructed to disembark. As anyone who has experienced
interstate travel on either a bus or an airplane knows, passengers are eager to depart as quickly as
possible. The only reason the passengers on the Houston to Miami bus did not do so was because
their exit was obstructed by two police officers.
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After boarding the bus, Officer Whitfield made a general announcement to all passengers
rather than approaching each passenger individually. During this announcement, Braggs – the only
other potential figure of authority – exited the bus, and the police officers assumed his position in
the front of the bus. Officer Whitfield apparently made his announcement very quickly. While
testifying to the wording of his announcement at the suppression hearing, the court reporter had to
interrupt Officer Whitfield three times in order to understand what he was saying. Upon arrival in
Mobile, then, a passenger is faced with the following scenario. The bus driver exits and is replaced
by a uniformed police officer who rapidly announces something about a search, and then waits for
everyone to get their bags down and hold them open for inspection. This is a far cry from the
“voluntary” and “cooperative” police encounters contemplated by the Fourth Amendment, and no
reasonable person would think otherwise. It is not unusual to be approached by a fellow traveler on
a bus or in an airport, and therefore there is no reason to believe that when police officers engage
in similar behavior that they are coercing or intimidating citizens. The same cannot be said of a
uniformed person making an announcement at the front of a Greyhound bus. The unambiguous
message is that the attention and cooperation of all passengers is required.
In addition, while passengers voluntarily place themselves in a confined space when riding
in a bus, Officer Whitfield’s search was carefully designed to aggravate those circumstances.
Instead of beginning his search in the rear of the bus, which would have permitted those passengers
who felt uncomfortable with the procedure to exit without confronting the police, or waiting until
passengers had already exited the bus, Officer Whitfield stood in front of each passenger he
searched. Although the district court stated that Officer Whitfield did not “block [the defendant’s]
path of egress,” this finding was clearly erroneous. As the government essentially conceded at oral
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argument, any fair interpretation of the briefs and the record shows that the police officers blocked
the aisle of the bus in a way that would have required any passenger who preferred to ignore the
police presence to physically confront the officers.
Finally, the testimony at Guapi’s suppression hearing reinforces our opinion that a
reasonable person in these circumstances would not have felt free to ignore Officer Whitfield’s
requests. At oral argument, the government was not able to provide us with any data on the ratio of
passengers who decline to participate in Officer Whitfield’s searches, so we must rely on the
transcript of the hearing to provide a fair picture of passenger reaction. In this regard, Officer
Whitfield testified that although he had been searching “from 28 on up of searches of individual
buses”per week, he could only recall “several times” in which individuals had refused his search
requests. It is undisputed that in the instant circumstances no passengers refused the search.
Perhaps most significantly, there was the testimony of Daniel R. Stankowski, an investigator for the
Federal Defender’s Office and 29-year-veteran of the F.B.I. Because Herbert Braggs, the bus driver,
was not available to testify at the suppression hearing, Stankoski testified to an interview of Braggs
he had conducted. According to Stankowski, Braggs, who had observed several of these searches,
described the procedure as follows:
A: He stated it was their normal procedure that if the passengers were about to get
off that the officers would instruct them to get back in their seats, to take their seats,
and that a search was going to be conducted.
Q: Was he – did he relate to you whether or not he thought the passengers could get
off the bus once the search had begun?
A: It was his impression, and he relayed that to me, that he thought the passengers
could not come off the bus.
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Although we accept as not clearly erroneous the district court’s implicit finding that passengers
could in fact have exited the bus, we find the bus driver’s opinion significant because it shows how
a reasonable individual was likely to feel when confronted with Officer Whitfield’s requests.
Under these circumstances, we find that a reasonable person in Guapi’s position would not
have felt free to decline Officer Whitfield’s request to search on-board luggage, and that therefore
Guapi had already been unconstitutionally seized before Officer Whitfield found the cocaine in his
bag. The district court erred in denying Guapi’s motion to suppress the cocaine evidence.
REVERSED AND REMANDED.
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