dissenting:
I
Insofar as the majority opinion holds that Agent Small did not have reasonable suspicion of criminal activity to justify detaining defendant Little or her luggage before their initial encounter, I am in agreement. Small had boarded the train to check out two other passengers; he questioned them, induced them to let him search their baggage (and in one case the passenger’s person), but found nothing incriminating. Small focused on defendant only because he saw a new suitcase with no name tag on the rack where passengers placed their bags outside the roomettes, and a train attendant identified it as defendant’s. Obviously the suitcase’s physical appearance and location provided no grounds for reasonable suspicion; train passengers can and do carry on their own luggage, sometimes old but sometimes new, and place it where it can be retrieved at their will.
Apparently because they are suspicious of almost everyone, Small and the officer who accompanied him decided to do their own human sniff of defendant’s luggage. They detected an odor they could not identify as the odor of any drug or any masking agent.1 I attribute no significance to the statement that they smelled a “chemical” odor, because all odors are chemical. Thus, I agree that the agent had no articulable suspicion to justify questioning defendant, and the case must be viewed in the same posture as the encounter in Florida v. Bostick, 501 U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
II
It also seems clear that defendant in fact felt compelled to answer the agent’s questions. Consider that this woman had in her bag in the roomette fifteen kilograms of cocaine, and in another bag outside on the luggage rack another fifteen kilograms of cocaine. While she disclaimed knowledge of the contents of the bag in the public luggage rack under persistent questioning by the officer, she never denied knowledge of the contents of the bag in the roomette. It is fanciful to suppose that she did not know she was carrying contraband in one or both bags. This was the context in which the agent asked to speak to defendant.
I have more problems with the tape than does the majority.2 Nevertheless, reviewing *1508the tape introduced into evidence, it is apparent that defendant answered the agent’s questions with the least response possible, as would one who felt coerced. When informed, after her questions, that she need not allow the agent to examine her baggage for drugs, both times she refused consent. Because she knew the officer wanted to search her luggage for drugs, it seems obvious that she would not have accompanied the officer to the outside luggage rack had she felt she had a choice. No one listening to the tape could believe that this defendant thought that cooperating with Small would deter him from searching her luggage or that a search would not uncover the drugs. She felt coerced in fact.
I recognize that the test is not whether defendant in fact felt coerced; the test is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. at -, 111 S.Ct. at 2387. There apparently are no empirical studies of how a reasonable person, a reasonable innocent person, would react in similar circumstances. The “reasonable person” exists only in the minds of the judges who adjudicate these matters.3 The Supreme Court says we must evaluate such matters with “common sense and ordinary human experience.” United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985).
Ill
I agree with the majority that our principal guidance for deciding a case like that before us comes from Bostick. There the Supreme Court announced a totality of the circumstances test applicable to encounters on a train as well as a bus. Read narrowly, Bostick merely held there is no per se rule requiring a court to find a seizure in violation of the Fourth Amendment when encounters occur between passengers on a bus and police officers asking questions without articu-lable suspicion. The Court did not decide that no seizure occurred under the facts of that case, but stated that the Florida court must apply a totality of the circumstances evaluation in determining whether “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 -, 111 S.Ct. at 2389.
The lower courts, however, have read Bos-tick more broadly, as a holding on the facts there before the Court that no unconstitutional seizure occurred. This may be because the Court, in addition to saying that the case should be remanded to evaluate the seizure under the correct legal standard, asserted that the “question to be decided ... on remand is whether Bostick chose to permit the search of his luggage,” id. 501 U.S. at -, 111 S.Ct. at 2388, which appears to assume there was no seizure. On remand the Florida Supreme Court simply reversed its prior position suppressing the evidence in a brief unreasoned per curiam opinion. Bostick v. State, 593 So.2d 494 (Fla.1992).
Lower courts have essentially compared their cases with the circumstances in Bostick, or referenced therein, weighing toward coercion — that the officer asked potentially incriminating questions, that he partially blocked the only possible exit, and that one officer had his hand in a recognizable pouch that contained a gun — and held no Fourth *1509Amendment violation occurred if the situation then before them was no more intimidating than that. Indeed, like the majority opinion here, some courts appear to treat factors that may be considered nonthreatening — that the officers were wearing civilian clothes, that no gun was visible, and that they used a conversational tone in questioning — as not merely neutral, but as offsetting other facts which would weigh toward coercion.
In applying Bostick’s balancing test, however, whether we view the encounter as violating constitutional limits often will depend on how close we think the Bostick facts came to the line of unconstitutional behavior. I believe, obviously contrary to the majority, that the conduct Bostick appeared to approve was near the extreme limit of a constitutionally permissible consensual encounter.
IV
The commentators almost unanimously have condemned the Bostick opinion as going too far.4 Commentators, of course, do not make the law; the Supreme Court does. But this universal criticism is some indication that the Supreme Court might not reach the same result if the facts contained features less favorable to the police questioners than were present in Bostick. In Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Supreme Court held that police officers violate the Fourth Amendment when they make stops of automobiles on a random basis without articula-ble suspicion. That is not a far cry from the bus or train case where the encounter is with passengers in a vehicle stopped for reasons unrelated to the policeman’s activity, but where the policemen are acting with the cooperation of the public carrier.
A
In United States v. Ward, 961 F.2d 1526 (10th Cir.1992), writing for the panel, I perceived two differences from the situation in Bostick that I thought weighed substantially in favor of finding an unlawful seizure rather than a consensual encounter. First was that the officers in Ward, one of whom was Agent *1510Small, did not inform the defendant at the outset of the encounter that he need not answer his questions. I believe this is an important factor because the Bostick majority opinion mentioned as a fact “particularly worth noting” that before asking questions the officer did notify the passenger that he need not cooperate. Bostick, 501 U.S. at -, -, 111 S.Ct. at 2385, 2388; see also United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980) (fact that defendant was told she could decline to consent was “especially significant”). Agent Small, in the case now before us, did not inform defendant at the outset, or at any time, that she need not answer his questions.
B
The second difference I perceived in Ward to weigh substantially in favor of a coercive encounter was the locus of the questioning in a roomette, with only officers and the defendant present, isolated from neutral witnesses. This was not a factor emphasized in Bostick; but it is clear that the encounter in the bus occurred where other passengers would witness the questioning. The majority opinion in the instant case believes that the district court treated the location of the encounter in the roomette as determinative of the seizure question and it rejects that view. It then goes on to suggest that whatever expectation of privacy a train passenger has in a roomette it “has only a limited relevance to the question of whether a police-citizen encounter in such a roomette is consensual,” Maj. op. at 1504-05, and additionally suggests that people might feel more coerced when confronted by police in a public setting in view of others.
I do not contend, nor do I believe the district court found, that the location of the police encounter is “determinative” of the seizure question. But I do contend, based upon Supreme Court precedent as well as common sense, that it is an important factor. On more than one occasion the Supreme Court has recognized the importance of location in the seizure determination. In Bos-tick, the Court stated that “the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage_” Bostick, 501 U.S. at -, 111 S.Ct. at 2384 (emphasis added). Later the Court noted that no seizure would have occurred if the police confronted Bos-tick before he “boarded the bus or in the lobby of the bus terminal,” id. 501 U.S. at -, 111 S.Ct. at 2386 (emphasis added), both places where witnesses are likely to be present. See also Florida v. Rodriguez, 469 U.S. 1, 4, 105 S.Ct. 308, 309, 83 L.Ed.2d 165 (1984) (noting specifically that police and defendant “remained in public area of the airport,” and finding no seizure under Fourth Amendment) (per curiam).
Similarly, in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), the Supreme Court found an encounter in an air terminal was a seizure violating the Fourth Amendment. The Royer Court emphasized that the agents brought Royer to a one-exit room which the Court described as “a small room — a large closet — equipped with a desk and two chairs”; it then stated that “[w]hat had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room.” Id. at 502-03, 103 S.Ct. at 1327. In my view the train roomette in the case before us, no larger than eight feet by two or three feet,5 is essentially similar to a large storage closet with only one exit.
*1511The majority holds that the passenger’s privacy right in a train roomette is not as great as in her home, and that such fact requires overruling Judge Kelly’s opinion for the panel in United States v. Dimick, 990 F.2d 1164, 1166 (10th Cir.1993). Of course, Dimick was a search case, not a seizure of the person, and I believe it was correctly decided. I share the view that a passenger renting a roomette on a train does not have the same expectation of privacy as a homeowner. Homeowners may exclude almost anyone from their property; train roomette renters pay for the privacy of traveling in isolation from other passengers but expect to let the conductor in to check their tickets, and other train employees to announce the next stop or to check a mechanical problem. As relevant to the seizure issue before us, however, I believe the train passenger in a roomette would feel less able to refuse to answer questions posed by a police officer, especially one who looked like he might be connected to the railroad or to have been asked by the railroad to make inquiries. Thus, the lesser privacy interest actually supports finding á more coercive atmosphere in the train roomette than when a person is questioned at the door of her home. The passenger’s privacy expectation in the roomette may be of limited relevance, but it is relevant.
As to the majority’s dictum that many people in a public setting, where there are other neutral observers, would feel more embarrassed and more coerced into responding to police questioning than when in the privacy of a roomette, I disagree, and I think the Supreme Court does also. In holding that Miranda warnings need not be given to motorists in ordinary traffic stops, the Supreme Court explicitly held that public settings are inherently less coercive.
[T]he typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse.
Berkemer v. McCarty, 468 U.S. 420, 438, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984).
This same reasoning should apply to police encounters when we analyze whether a reasonable person would feel free to refuse an officer’s requests or to otherwise terminate the encounter.
My point in Ward and my point here is that the main problems of questioning in the roomette setting are the cramped confines, like that regarded as coercive in Royer, and the absence of neutral eye witnesses. The majority apparently believes that if the roomette setting of the interview is given an “important” label, all such encounters will necessarily be found to be seizures — a per se rule. I do .not agree with that conclusion. One factor that diminishes the importance is the existence of a tape recording, as here. But even when there is a tape, it often seems to malfunction just when the court would like to know what was said; it may not record accurately the tone of voice of the parties; and, of course, it cannot show the nonverbal behavior of the officer. These defects can be neutralized in particular cases, however, if there is another passenger or visitor who witnesses the encounter, who can be a neutral observer of the police behavior.
C
The tape and testimony in the instant ease contains additional evidence to support the district court’s finding of a coercive atmosphere created by the confrontation and questioning of defendant. First, the agent’s proximity to defendant: Although Agent Small testified at one point that he didn’t remember “stepping foot” in defendant’s tiny roomette, Appellant’s App. 47, and that he stood in the hallway, id. at 48, he also said, “These rooms are very tiny. She could keep her seat and hand [the ticket] to me. When she sticks her arm out, her hand is probably in the hallway, very small room.” Id. at 49. Earlier he had testified that he “stood on the north part of the room.” Id. at 25. See Royer, 460 U.S. at 502-03, 103 S.Ct. at 1326-27.
*1512Second, the agent’s questioning technique: Almost at the outset his questions were focused: “[W]e look for people who bought tickets yesterday, traveling by themselves, as you are, traveling back East carrying drugs.” PL ex. 2; id. 2-A (emphasis added). Small’s questioning did not stop after defendant denied him permission to examine the bag in her roomette. He immediately asked her to accompany him outside the room. As he left he made an aside to his fellow officer that is almost but not quite inaudible: “Maybe, but we’ll get her after the suitcase.” PI. ex. 2. When defendant readily identified the bag on the rack outside as hers and denied Small permission to search it, he continued to- question her about whether she knew what was in the bag and whether she had packed it. At that point defendant responded that she did not know what was in the bag and had not packed it; she stated that a friend had given her the bag for delivery to another. Small then indicated quite clearly that he intended to hold the bag after the train left the station and would send it to her if it contained nothing illegal. He made no mention of holding for a dog sniff, but referenced only his intent to secure a search warrant to enable him to look into the bag.6
The majority states that asking incriminating questions is irrelevant to the totality of the circumstances. While it may be difficult for an officer to do his job without asking questions that are in some ways incriminating, “an officer’s use of language or a tone of voice in a manner implying that compliance with the [police] request might be compelled,” United States v. Griffin, 7 F.3d 1512, 1519 (10th Cir.1993) (Brorby, J.), is certainly relevant to the seizure question. Direct, focused, or prolonged accusatory questioning in a commanding tone of voice is likely to make a reasonable innocent person feel coerced and unable to terminate a police eneounter. See id. at 1518. Because the majority opinion appears to distinguish between police questions, that are by necessity sometimes “incriminating,” and police questioning techniques that are likely to be coercive, I assume the majority does not intend a major break from our prior case law. See also United States v. White, 890 F.2d 1413, 1416 (8th Cir.1989) (officer’s comment that defendant fit characteristics of drug criminals could lead defendant to reasonably believe he was not free to terminate encounter), cert. denied, 498 U.S. 825, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990); United States v. Savage, 889 F.2d 1113, 1115, 1117 (D.C.Cir.1989) (when officer’s questions of defendant in train private roomette became direct and focused on assumed name, encounter became seizure); United States v. Gonzalas, 842 F.2d 748, 752 (5th Cir.1988) (defendant seized when officer told her he was working narcotics and asked to search her bag), overruled on other grounds by United States v. Hurtado, 905 F.2d 74 (5th Cir.1990) (in banc).
D
Defendant is a black woman who was traveling alone. The majority correctly notes that the test for determining whether a seizure has occurred is an objective one, and that the personal traits or the subjective state of mind of a defendant are irrelevant except to the extent such traits are observable to the officer. However, the majority rejects any argument that defendant’s status as a black woman traveling alone has an effect on whether a reasonable person in her situation might feel coerced. Even more surprising, the majority makes the broad statement that “we reject any rule that would classify groups of travellers according *1513to gender, race, religion, national origin, or other comparable status.” Maj. op. at 1512. Despite footnote six in the majority opinion I fear these comments will be read by the district courts as a repudiation of that part of United States v. Zapata, 997 F.2d 751, 759 (10th Cir.1993), in which Judge Anderson, writing for the panel, acknowledged that “such attributes as the age, gender, education, and intelligence of the accused have been recognized as relevant,” citing United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980), and Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973).
Mendenhall, at the point in which the Court was determining whether the defendant had been seized, states,
it is argued that the incident would reasonably have appeared coercive to the respondent, who was 22 years old and had not been graduated from high school. It is additionally suggested that the respondent, a female and a Negro, may have felt unusually threatened by the officers, who were white males. While these factors were not irrelevant, ... [citing Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047], neither were they decisive.
446 U.S. at 558, 100 S.Ct. at 1879 (emphasis added). Schneckloth states:
In determining whether a defendant’s will was overborne in a particular ease, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. Some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence; the lack of any advice to the accused of his constitutional rights-
412 U.S. at 226, 93 S.Ct. at 2047 (citations omitted) (emphasis added). The cases cited in Schneckloth related to the voluntariness of confessions, which the Court believed applied to the consent to search issue involved there. In the case before us the issue is whether the contact between the officer and defendant was a consensual encounter or a seizure. Some of the objective factors relevant to whether a search was consensual would surely apply in determining the seizure issue.7 This court cannot overrule those Supreme Court holdings, and I presume does not intend to cabin them unduly.
V
After carefully examining the record, I am satisfied that the district court did not apply a per se test or an erroneous one.8 The *1514court applied a balancing test. It weighed as coercive the failure of the agent to state that defendant need not answer the officer’s questions; it weighed as coercive the environs of the small roomette with one exit, similar to the setting condemned in Royer; and it weighed as coercive the officer’s persistent questioning of an accusatory nature. Perhaps the district court believed that what apparently was approved by Bostick went about as far as the law permits, and that these additional coercive factors tipped the scale against the police.
Because I view Bostick as a case close to the line of unconstitutional questioning, I would hold that the district court properly treated these important additional factors, tending toward coercion, as enough to make this encounter an unconstitutional seizure absent substantial offsetting factors. Here there are no factors more favorable to the prosecution than in Bostick except that one officer stood back out of sight until defendant was brought to the baggage area to view her second bag. .Until both officers were present, however, defendant made no statements that would raise suspicion to the Terry level. Therefore, I believe the case before us is one in which the Supreme Court would condemn the questioning as a seizure violative of the Fourth Amendment. I would affirm the district court’s suppression order.
It is very hard to vote to suppress evidence that will result in allowing this criminal, carrying thirty kilos of cocaine, to go free. But our decision has implications far beyond the facts of this case.9 The jurisprudence of the Bill of Rights calls upon the courts to make judgments with an emotional content not present in almost any other litigation. If we seek answers in the original intent of the framers of the Constitution, there were no trains, airplanes or buses when the Bill of Rights was adopted. Perhaps the only common carrier was a sailing ship, in which only the captain may have had a private cabin. Nevertheless, the colonists had participated in a revolution, had violated laws imposed upon them by the English sovereign, and the architect of the Bill of Rights, Thomas Jefferson, believed that revolution against established government on some regular basis was desirable.10 It is not hard for *1515me to believe that these founders would consider the Fourth Amendment violated if police officers used tactics like those before us to seek to examine the luggage and saddle bags of travelers on the public thoroughfares that existed in colonial times.
Today the search is for cocaine and other outlawed drugs; tomorrow it is likely to include tobacco, surely on the endangered list, and perhaps even alcohol.11 And how many travelers have lawful possessions in their luggage that they do not care for others to see; items that they will be pressured into revealing by police officers boarding trains, planes and buses acting out what is permitted by the instant decision? See Florida v. Kerwick, 512 So.2d 347, 348-49 (Fla.App.1987) (a single officer employing sweep technique was able to search over 3,000 bags in a nine-month period). The majority has stretched what is permissible under the Fourth Amendment further than I can accept and further than I believe the Supreme Court would permit. I therefore dissent.
. There is no evidence in the record that any masking agent was used to attempt to cover the odor of the cocaine found in defendant's luggage.
. The tape introduced into evidence is close to indistinct with respect to defendant's answer to Agent Small when he asked if he could speak to her. Small testified that she consented, and after listening several times I agree that defendant's response can be understood to be "uh-huh.” Nevertheless, the transcript Small prepared himself, offered as Plaintiff's Exhibit 2-A, lists defendant's answer as “huh-uh,” a "no.” Also, at the suppression hearing when cross-examined about his voice sounding “very rushed” on the tape, Small explained that in part it was a result of the tape, stating that he had transferred the conversation from one tape to another: “The original tape is a micro-cassette, and I had to transfer it over to a larger tape and then — at the beginning of the tape I sound like Mickey Mouse, and that's somewhere in the — transferring the tape over....” Appellant's App. 44.
The tape introduced into evidence may be the original tape; it has on it the conversations of the encounters with the other two passengers during which Small found nothing incriminating. It also has a completely silent stretch, with no background or train noise, unlike the rest of the tape, for more than one minute just after Small told the second passenger that he would have to confer with his fellow officer about whether to let that passenger proceed and just before Small's *1508opening question to defendant. These items disturb me. But I would not hold that the success of the government's appeal turns on the accuracy of the tape.
. I assume the reason no empirical studies have been made is that realistic scenarios would have to be performed by police, who are reasonably satisfied with the way the courts decide this issue, or by persons impersonating police officers, which would subject them to criminal liability for impersonating police officers. It would help if lawyers would put their clients on the stand in these cases. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968) ("[W]hen a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.”). Defendants may run some risks by testifying, see Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (evidence obtained in violation of Miranda may be used to impeach defendant at trial), but if the case turns on whether the evidence is suppressed they have nothing to lose by testifying to the circumstances surrounding the officer’s interrogation.
. See, e.g., Wayne R. LaFave, Search and Seizure § 9.2(A) at 117, 120 (Supp.1993) ("Even if it is generally true that police encounters with pedestrians, including travelers who become ensnared in drug courier detection activities at airports, are not seizures, the confrontations which occur on buses as a part of suspicionless police sweeps nonetheless ought to be deemed seizures because they are dramatically different in terms of the character of the police activity involved and its impact upon the reasonable traveler. This difference, essentially, comes down to these two propositions: (i) the police dominance of the situation manifested by their sweep activity, undertaken with the obvious connivance of the common carrier to which bus travelers have entrusted their care, is highly coercive because it is so unlike any contact which might occur between two private citizens; (ii) that dominance has a uniquely heavy impact upon bus travelers precisely because they do not, as a practical matter, have available the range of avoidance options which pedestrians and airport travelers might utilize .... [I]t is troublesome that the Bostick majority does not seem to grasp either the uniqueness of on-bus confrontations or the particular difficulties which passengers who do not wish to submit to such an encounter face.”); The Supreme Court — Leading Cases, 105 Harv.L.Rev. 177, 305 (1991) ("The Court's reasoning ... does not recognize that the police, by approaching individuals in environments where they face obvious — even if voluntarily assumed — constraints on mobility, purposefully reduce the likelihood that a citizen will exercise his right not to be interrogated. Such rulings give the police a perverse incentive to seek out individuals in places— such as buses — where external factors discourage exit.”) (footnotes omitted); Michael J. Reed, Comment, Florida v. Bostick: The Fourth Amendment Takes a Back Seat to the Drug War, 27 New Eng.L.Rev. 825 (1993) (“If, as the majority in Bostick states, the reasonable person is aware that he has the right to refuse consent, then the individual would have no need to risk being caught trying to bluff and would simply refuse consent. If, however, he did not feel free to refuse consent, he would grant it because he felt compelled to do so. In short, if the environment in Bostick, and cases like it, is not coercive, how could it be an effective law enforcement tool? In other words, why would it ever work?”) (footnote omitted); Matthew I. Farmer, Note, Go Greyhound and Leave the Fourth Amendment to Us: Florida v. Bostick, 23 Loy.U.Chic.L.J. 533 (1992) ("[T]he Court's latest statement on the consent-coercion question implicitly credits the ‘reasonable person’ with an inordinate amount of Fourth Amendment knowledge.”); see generally Mark W. Fry, Note, Florida v. Bostick: Swapping-Off Point for Fourth Amendment Protections?, 52 La.L.Rev. 1183 (1992); Constitutional Law Conference Addresses Supreme Court’s 1990-91 Term, 50 Crim.L.Rep. 1086 (1991) (Prof. Yale Kamisar).
. Agent Small testified as follows with respect to the size of defendant’s roomette:
Q. (By Mr. Chesnoff) Sir, how big was the room?
A. It’s probably eight feet long by two, three feet wide.
Q. Okay; is this a sleeping car?
A. Yes, sir.
Q. So there's a bed, a chair — a bed and a chair in a room that’s eight by two? A. Maybe eight by three. It’s actually two beds. There’s two chairs and two beds. And the two lower chairs make out to a bed at night-time, and the upper berth is pulled down at night, so you have two beds.
Appellant's App. at 49-50. He also testified that “most rooms on the train don't have enough space for large pieces of luggage.” Id. at 39.
. There was no articulable suspicion justifying a seizure of defendant’s bags until the continued questioning by the agent, after the second refusal to permit inspection of the bags, evoked the answer from defendant that she had not packed, but had been given, one of her bags by another for delivery. Then, if the questioning was permissible, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), sufficient suspicion existed to justify a temporary detention of the bag. Agent Small then indicated his intention to keep the bag after the train was to leave the station. While I believe that such detention on mere Terry-type suspicion would violate defendant’s rights under the authority of United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and that in effect we have so held in United States v. Dimick, 990 F.2d 1164 (10th Cir.1993), we do not have to decide that issue here. The dog was secured in time to make the sniff that created probable cause to arrest before the train left the station.
. If it is relevant that the officer is in plain clothes rather than in uniform, it should be relevant that the officer has the physique of a tackle for the Dallas Cowboys and is questioning an obviously retarded underweight thirteen-year old.
. The court’s findings, because they were oral, are perhaps not a model; but they comment on the most relevant factors and I cannot read them as pronouncing a per se rule. They are as follows:
The only information that Agent Small had to single out this defendant to question was that he detected a chemical odor from the bag and that it had no tags, although he knew who owned the bag.
At that point there was absolutely no information or anything to lead Agent Small to have any reasonable suspicion for any investigative detention.
And here as in the Ward case the Court finds that his questioning Ms. Little in this confined space away from the public was in effect a situation where she was not permitted to decline answering questions.
Moreover important in this case as pointed in the Ward case is that at no time did Agent Small advise her that she could terminate the questioning.
And I note that throughout Agent Small was very pointed in his questioning of the defendant, and he was asking incriminating questions.
The Court in Ward states that in a Fourth Amendment inquiry it is relevant that an individual traveling in a private train roomette has a higher expectation of privacy than an individual traveling in a public passenger train. And also as here that the officer's confrontation of the defendant in a place where she had a legitimate expectation of privacy supports the conclusion, and I so conclude in this case, that the encounter occurred in a private, nonpublic setting as distinguished from an open public setting.
I further find that at the time Agent Small — at the time that Agent Small asked the defendant to accompany him to the baggage area, again he did not advise her that she was not required to do so, and I find that under the circumstances she was led to — at least she could *1514reasonably believe that she had to comply with Agent Small's commands to accompany her (sic).
Upon asking — and again even to that point there were no suspicious circumstances to lead Agent Small to believe that a crime was being committed.
Once she identified the bag as being hers, and again he proceeded to ask incriminating questions, and based upon — and informed her that he was going to take her bag because he suspected that there were narcotics in the suitcase.
There’s nothing here to indicate on what he bases that information other than he himself concluded X presume from what he described as a chemical odor that there was something suspicious in the bag.
Here the information reflected and known to Agent Small was not inconsistent with innocent travel on a train by anyone, and he did not have any reasonable basis to arise to a reasonable suspicion that the defendant was committing a crime, therefore he did- not have the right to seize the luggage.
I further note for the record that I find that he also seized the person of the defendant at the time he — or he asked her to accompany him to the baggage area.
Appellant's App. at 63-65.
. Justice Jackson well stated the importance of the Fourth Amendment not long after his return from presiding over the Nuremberg war crimes trials:
Fourth Amendment freedoms ... are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.
But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.
Brinegar v. United States, 338 U.S. 160, 180-81, 69 S.Ct. 1302, 1313-14, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting).
. "I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical." Thomas Jefferson, letter to James Madison, Jan. 30, 1787 (quoted in Bartlett’s Familiar Quotations, 15th ed. 1980).
. See State v. Bieber, 121 Kan. 536, 247 P. 875 (1926), disbarring a lawyer who pleaded guilty to the misdemeanor of unlawful possession of intoxicating liquor (a small quantity found on the back porch of the lawyer’s home).