dissenting:
There is no dispute about the particular facts of this case, nor is there any dispute about our statements of the applicable law in United States v. Little, 18 F.3d 1499 (10th Cir.1994) (in banc). On remand, the district court conducted no new fact findings, but simply reached the identical legal conclusion as before, on the identical facts as before. In affirming that conclusion, the majority has unacceptably minimized its appellate responsibility, has ignored our own case law, and has provided no guidance or meaningful precedent for lower courts, law enforcement personnel, or the travelling public. For those reasons, I respectfully dissent.
I.
As the majority acknowledges, in reviewing motions to suppress, “ ‘we accept the trial court’s factual findings unless clearly erroneous’ ” while we “review de novo the ‘ultimate determination of Fourth Amendment reasonableness.’ ” Id. at 1503 (quoting United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) and United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993)).
In granting Ms. Little’s motion to suppress, the district court relied on the following well-established facts:
the confined space within which Ms. Little was questioned; the questioning was conducted outside public view; the accusatory, persistent, and intrusive nature of the questioning by Agent Small; and the failure of Agent Small to advise Ms. Little that she had the right to refuse to answer his questions or to refuse to accompany him to the baggage area.
United States v. Little, 862 F.Supp. 334, 335 (D.N.M.1994). Two of these factors are but a restatement about the location of the encounter; one factor is but a restatement about the type of questions asked by Agent Small, embellished with a clearly erroneous finding as to the tone and nature of the questioning; and the final factor is a restatement of the failure of Agent Small to specifically advise Ms. Little that she could refuse his requests.
In our in banc opinion in Little, we specifically stated that the location of the encounter was not determinative of whether the encounter was consensual or not. Little, 18 F.3d at 1504. We also specifically stated that the failure to advise Ms. Little that she need not answer questions was not determinative. Id. at 1505. We further held that, in accordance with Supreme Court jurisprudence, police officers are entitled to ask potentially incriminating questions. Id. at 1506 (citing Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991)).
The district court has done nothing more than, once again, give these factors determinative and controlling weight, while denying that it is doing so. Further, it has reiterated its previous finding that the tone of Agent Small’s questioning was coercive, a finding which is clearly erroneous, based upon our own review of the record in this case, including the audio tape of the actual encounter. From those factors, the district court derived the legal conclusion that the Fourth Amendment was violated.
The majority does not tell us whether it would reach the same conclusion — that the encounter became nonconsensual — if the same questioning had taken place in a coach ear or other more “public” location. If it would not reach the same conclusion, the *716majority’s holding is clearly location specific, contrary to our in banc opinion in Little. If it would reach the same conclusion, and hold that the encounter became nonconsensual, the majority would be flatly inconsistent with Bostick and subsequent case law in our own and other circuits.
In my view, the majority has abdicated its appellate review function by summarily affirming the district court’s conclusion, giving undue deference to lower court findings when the ultimate issue on appeal is a legal one, which we must review de novo. I would reverse the district court’s legal conclusion that the Fourth Amendment was violated when Agent Small asked Ms. Little to accompany him to the baggage area.
Having concluded that there was no Fourth Amendment violation because the encounter between Ms. Little and Agent Small remained consensual, I would then hold that Agent Small had reasonable suspicion to detain Ms. Little’s luggage and subject it to a dog sniff. The facts relevant to this issue are fully set forth in our in banc opinion. Little, 18 F.3d at 1501-02. The majority now affirms the district court’s conclusion that, because Ms. Little had been unlawfully detained, her responses to Agent Small’s subsequent questions were tainted and could form no basis for a reasonable suspicion to detain her luggage. The majority therefore affirms the conclusion that Agent Small lacked reasonable suspicion to detain the luggage.
At the time he briefly seized her luggage, Agent Small knew the following: Ms. Little was travelling alone in a private compartment, she had paid cash for a one-way ticket, she was travelling under her own name, she had brought on board a new suitcase with no identification but which she acknowledged was hers, which emitted an unidentified “chemical smell,” and the contents of which were unknown to her because she had not packed it but, rather, she was transporting it from Los Angeles to St. Louis for someone else. Little, 18 F.3d at 1501-02. While several of these factors are consistent with innocent travel, see United States v. Hall, 978 F.2d 616, 621 (10th Cir.1992) and United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.1992), several are objectively suspicious and support a finding of reasonable suspicion. See United States v. Carhee, 27 F.3d 1493, 1498 (10th Cir.1994); United States v. Manuel, 992 F.2d 272, 274 (10th Cir.1993); United States v. Withers, 972 F.2d 837, 843 (7th Cir.1992); United States v. Vasquez, 612 F.2d 1338, 1344 (2d Cir.1979), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980).1 I would conclude, as a matter of law, that Agent Small’s suspicion was reasonable under the Fourth Amendment, see Bloom, 975 F.2d at 1456, and that he lawfully briefly detained the luggage for a dog sniff.
II.
I am further troubled by the majority’s decision because its deferential review of the district court’s conclusion easts doubt upon the consistency with which our court will review subsequent motions to suppress. The majority’s deferential standard suggests that a similar result — affirmance of the district court ruling — would occur in a case involving similar facts but a different legal conclusion by the lower court. Thus, one defendant questioned by police on a train may succeed in having evidence suppressed, while a different defendant similarly questioned may fail.
III.
Finally, what makes the majority opinion even more troublesome is that it ultimately provides a precedent for nothing, except another case with identical facts. Its application of the broad legal principles set out in our prior ease law to the particular facts of this case parses the Fourth Amendment so finely that nobody, least of all law enforcement officers, will be able to predict what they lawfully can and cannot do. Thus, further confusion and ambiguity have been added to an already difficult area of the law.
For these reasons, I respectfully dissent.
. While we did not reach the question of whether Agent Small had reasonable suspicion to detain Ms. Little's luggage in our in banc Little opinion, we did specifically hold that "[a]n unidentified chemical smell emanating from an unlabelled piece of luggage is not, by itself, sufficient to create reasonable suspicion.” Little, 18 F.3d at 1506.