                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2647
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska
Christian Alvarez-Manzo, also known *
as Francisco Perez Alejandro Isaiz,     *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: December 10, 2008
                                Filed: July 6, 2009
                                 ___________

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
                           ___________

SHEPHERD, Circuit Judge.

       The United States appeals the order of the district court1 granting a motion to
suppress ten kilograms of cocaine found during the search of Christian Alvarez-
Manzo’s bag. This evidence led to Alvarez-Manzo’s indictment for possession with
intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §
841(a)(1) and (b)(1). The district court suppressed the evidence, and we affirm its
order.

      1
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
                                           I.

       The Nebraska State Patrol (“NSP”) Drug Commercial Interdiction Unit (“CIU”)
targets hubs of interstate transportation of persons and parcels to detect criminal
activity, including the Omaha Greyhound Bus Depot (“Greyhound Bus Depot”). NSP
Investigator Eberle (“Investigator Eberle”) is assigned to the CIU. On October 31,
2007, Investigator Eberle and other members of the CIU, NSP Investigator
Rasgorshek, NSP Investigator Lutter, NSP Investigator Scott, Sergeant Elliott, and
Drug Enforcement Administration Special Agent Orduna, were at the Greyhound Bus
Depot. A bus arrived at the terminal around 5:30 a.m., and the officers engaged in
their usual routine of watching the passengers. Passengers proceeding on to another
destination (“through passengers”) are required to get off the bus and enter the
terminal while the bus is cleaned and refueled. Passengers whose destination is
Omaha may carry luggage with them off the bus or obtain luggage from the
undercarriage cargo area of the bus. The officers observed luggage in the cargo area
which the bus driver had opened to allow passengers and baggage handlers to obtain
luggage.

       The cargo area was not full. It contained approximately five to seven bags.
Investigator Eberle’s attention was drawn to a newer black Swiss bag. He used his
flashlight to view the bag and its baggage check tag. Investigator Eberle saw that the
tag indicated that the bag was coming from St. Louis, Missouri, and was destined for
Dayton, Ohio. Investigator Eberle testified that this route caught his attention because
it was not consistent with a bag coming to Omaha.2 Investigator Eberle noted the
words “Indianapolis[,] IL” were handwritten on the baggage check tag. He testified
that this was the first bag he had seen where the computer-generated tag had a
different destination in handwriting. Investigator Eberle also noted that the bag had


      2
        Investigator Eberle testified that he had been observing bus traffic and baggage
for the past six years.

                                          -2-
an aftermarket padlock affixed. At that point, Investigator Eberle took possession of
the bag, removing it from the cargo area. Another investigator located another bag of
interest unrelated to this case.

       After all the through passengers were reloaded by the bus driver, Investigator
Eberle asked the bus driver if the officers could board the bus in order to locate the
owners of the two bags of interest. The bus driver had not completed his departure
routine and told the officers they could make the inquiries. Investigator Eberle stood
in the aisle in the front of the bus followed by Investigators Lutter and Scott. Another
officer was stationed at the front of the bus, near the driver’s seat, in order to stop
ingress and egress from the bus and ensure officer safety. The officers were in plain
clothes. The bus had a 52-passenger capacity and was approximately half-full. The
bus driver was not on the bus.

        Investigator Lutter held up the black Swiss bag. Investigator Eberle announced
to the passengers that they were law enforcement officers, that there were no problems
and no one was under arrest, and that the officers were attempting to find the owner
of the bag being held up which was found in the cargo area of the bus. None of the
passengers responded. Investigator Eberle then read aloud the city of origin and
destination on the baggage claim tag as well as the name printed on it, Francisco
Perez. No passenger responded. Investigator Eberle noticed that Alvarez-Manzo paid
more attention to the bag than the other passengers. Investigator Eberle then told the
passengers that the officers would go to the rear of the bus and ask each passenger, in
turn, whether the bag belonged to them and asked the passengers to respond “yes” or
“no.” Investigator Eberle took the black Swiss bag from Investigator Lutter and
walked to the rear of the bus and asked each passenger whether the bag belonged to
them. Receiving negative responses, Investigator Eberle worked his way up the aisle
until he reached Alvarez-Manzo at the middle portion of the bus.




                                          -3-
       Investigator Eberle asked Alvarez-Manzo if the bag belonged to him.
Alvarez-Manzo stated “sí” followed by “yes.” Investigator Eberle asked
Alvarez-Manzo, both in English and Spanish,3 if he was Francisco Perez.
Alvarez-Manzo responded “sí” and “yes.” Investigator Eberle again asked
Alvarez-Manzo if the bag belonged to him, and Alvarez-Manzo said “sí” and “yes.”
Investigator Eberle asked Alvarez-Manzo if he would could step off the bus so
Investigator Eberle could ask some questions about the bag. Alvarez-Manzo stated
“sí” and “yes” and stepped in front of Investigator Eberle to walk off the bus.
Investigator Eberle, with the bag, followed Alvarez-Manzo off the bus to an unloading
area about six feet from the bus door. Investigator Rasgorshek stood nearby.
Investigators Lutter and Scott remained on the bus and dealt with the other bag which
is unrelated to this case.

       After they had exited the bus, Investigator Eberle displayed his credentials to
Alvarez-Manzo and explained to him, in English and Spanish, that Investigator Eberle
was a police officer, that Alvarez-Manzo was not under arrest or in any kind of
trouble, and that Investigator Eberle wanted to ask Alvarez-Manzo some questions
about the bag. Alvarez-Manzo stated that he understood and appeared to have no
difficulty understanding Investigator Eberle. Alvarez-Manzo began breathing heavily,
and he started shaking after Investigator Eberle displayed his credentials.
Alvarez-Manzo’s nervousness appeared to increase as his conversation with
Investigator Eberle proceeded. When Investigator Eberle again asked Alvarez-Manzo
if the bag was his and Alvarez-Manzo did not respond, Investigator Eberle asked
Alvarez-Manzo for a bus ticket. In English, Alvarez-Manzo stated the ticket was on
the bus. Investigator Eberle asked Alvarez-Manzo if he had any identification on him.
Without verbally responding, Alvarez-Manzo reached into his right front pocket and
began removing a blue envelope in which Greyhound bus tickets are normally


       3
        Investigator Eberle’s Spanish is limited to the Spanish he learned while on the
job.

                                          -4-
enclosed. After partially removing the envelope from his pocket, Alvarez-Manzo
pushed the envelope back into his pocket and said “no, I don’t have any ID with me.”

       Alvarez-Manzo then turned to reenter the bus. As he did so, Investigator Eberle
noticed a bulging wallet in Alvarez-Manzo’s rear pocket. Investigator Eberle asked
Alvarez-Manzo if his identification was in the wallet. Alvarez-Manzo did not respond
verbally. After Investigator Eberle repeated the inquiry, Alvarez-Manzo turned
around, walked towards Investigator Eberle, reached into his own back pocket,
retrieved the wallet, and handed the wallet to Investigator Eberle. As Alvarez-Manzo
handed the wallet to Investigator Eberle, Alvarez-Manzo’s hand was shaking so much
that he almost dropped the wallet. Investigator Eberle took the wallet, handed it back
to Alvarez-Manzo, and asked for consent to search the wallet. Alvarez-Manzo replied
“sí” and “yes.” Investigator Eberle opened the wallet and saw a baggage tag claim
ticket in the name of Francisco Perez. Investigator Eberle put the wallet in his coat
pocket and placed Alvarez-Manzo in handcuffs. Investigator Eberle testified that he
handcuffed Alvarez-Manzo to prevent Alvarez-Manzo from fleeing and for officer
safety. Investigator Eberle asked Investigator Rasgorshek to take Alvarez-Manzo and
his bag into the baggage room of the bus terminal. The scheduled departure of the bus
was not delayed by the officers’ actions.

       Investigator Eberle then retrieved his drug detection canine, Rocky, from his
vehicle and took the canine to the baggage room of the bus terminal where Rocky
performed a sniff of the black bag. Rocky gave a positive indication for the presence
of narcotics. Following Rocky’s alert, the bag and Alvarez-Manzo were transported
to the NSP traffic office in Omaha. At the NSP traffic office, an officer, who was
fluent in Spanish, was called in to interview Alvarez-Manzo, but Alvarez-Manzo
declined to make a statement. The bag was transported to the Douglas County
Sheriff’s Office and subjected to a scan from a GE Vapor Traser II, an ion scanner,
which indicated the presence of heroin on the exterior of the bag. Investigator Eberle
applied for a search warrant from a Douglas County judge. The search warrant

                                         -5-
application detailed the events which had transpired at the Greyhound Bus Depot, the
canine sniff, and the ion scan. A search warrant was issued for the bag and Alvarez-
Manzo’s person. The search warrant was executed, and various items were seized,
including ten kilograms of cocaine.

       On December 11, 2007, a federal grand jury returned a one-count indictment,
charging Alvarez-Manzo with distribution and possession with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1).
Alvarez-Manzo pled not guilty at his arraignment. On January 17, 2008, Alvarez-
Manzo filed a motion to suppress. On February 15, 2008, the magistrate judge held
a hearing on the motion to suppress. On April 11, 2008, the magistrate judge issued
a Report and Recommendation (“R & R”), recommending that the motion to suppress
be denied. Specifically, the magistrate judge concluded that: (1) Alvarez-Manzo’s
encounter with the officers remained a consensual encounter until he was placed in
handcuffs, (2) the officers were justified in the subsequent temporary investigatory
detention of Alvarez-Manzo based on his unusual conduct, (3) the duration of the
detention was not unreasonably long before Investigator Eberle retrieved Rocky, who
was nearby, to conduct a sniff of the luggage, (4) based upon Rocky’s indication, the
officers had probable cause to further detain the bag and seek a search warrant, and
(5) because Alvarez-Manzo admitted ownership of the bag and had a baggage claim
stub matching the bag’s check tag, the officers had probable cause to detain Alvarez-
Manzo. Alvarez-Manzo filed timely objections to the R & R.

       The district court declined to follow the magistrate judge’s recommendation and
granted the motion to suppress. First, the district court concluded that Investigator
Eberle’s removal and possession of Alvarez-Manzo’s bag was a seizure within the
meaning of the Fourth Amendment, and the seizure violated Alvarez-Manzo’s Fourth
Amendment rights because Investigator Eberle lacked reasonable suspicion to justify
the seizure of the bag. Second, the court determined that Alvarez-Manzo’s person was
seized on the bus in violation of the Fourth Amendment because Investigator Eberle

                                         -6-
lacked reasonable suspicion. Third, the court concluded that the removal of
Alvarez-Manzo from the bus and his questioning constituted custodial interrogation
such that all of his statements were inadmissible because a Miranda4 warning did not
precede the questioning. Fourth, the court determined that Alvarez-Manzo did not
voluntarily consent to search of his wallet. Finally, the court concluded that the
unconstitutional seizure of Alvarez-Manzo and his bag tainted the subsequent search
warrant such that the evidence obtained pursuant it was inadmissible under the “fruit
of the poisonous tree” doctrine.5 The government brings this appeal.

                                          II.

       “When reviewing a district court’s grant of a motion to suppress, we review its
factual findings for clear error and its application of law de novo.” United States v.
Ellis, 501 F.3d 958, 961 (8th Cir. 2007) (quotation omitted). The government
challenges only two of the district court’s determinations, asserting that: (1)
Investigator Eberle did not seize Alvarez-Manzo’s bag within the meaning of the
Fourth Amendment and (2) Alvarez-Manzo voluntarily consented to the search of his
wallet.

                                          A.

      We first consider whether Investigator Eberle’s removal of Alvarez-Manzo’s
bag from the cargo area of the bus to the bus’s passenger seating area to locate the

      4
       Miranda v. Arizona, 384 U.S. 486 (1966).
      5
       “[T]he . . . question in . . . a [‘fruit of the poisonous tree’] case is whether,
granting establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (quotation omitted).


                                          -7-
bag’s owner constituted a Fourth Amendment seizure. Because whether law
enforcement’s actions constitute a seizure within the meaning of the Fourth
Amendment “involves a pure question of law,” we review the district court’s seizure
decision de novo. United States v. Va Lerie, 424 F.3d 694, 700 (8th Cir. 2005).

       The Supreme Court held in United States v. Jacobsen, 466 U.S. 109 (1984), that
a Fourth Amendment “‘seizure’ of property occurs when there is some meaningful
interference with an individual’s possessory interests in that property.” Id. at 113. In
Va Lerie, this court, en banc, applied Jacobsen in the context presented by this
case–property entrusted to a third-party common carrier. Va Lerie, 424 F.3d at
701-03, 708 n.9. Va Lerie presents similar facts,6 and, thus, this case turns on whether
Va Lerie, in which the en banc court concluded that a seizure did not occur, id. at 708-
09, is distinguishable from this case.

       In Va Lerie, “Investigator Eberle asked a fellow law enforcement officer to
remove [Va Lerie’s] luggage from the bus and take it to a room inside the rear
baggage terminal [of the Greyhound Bus Depot].” Id. at 696. After summoning Va
Lerie to the bus station ticket counter, Investigator Eberle told Va Lerie that he was
a law enforcement officer and explained to Va Lerie that he was not under arrest or
in trouble. Id. at 697. Va Lerie agreed to speak with Investigator Eberle and follow
him to the room where Va Lerie’s luggage was being held. Id. There, Investigator
Eberle explained that “he was a narcotics investigator who was watching for people
who might be transporting illegal drugs.” Id. Investigator Eberle then asked Va Lerie
for consent to search the bag, and Va Lerie gave consent. Id. The search of Va
Lerie’s bag produced five vacuum-sealed bags containing cocaine. Id.




      6
        We note that Va Lerie involved the same investigating officer and same bus
station at issue in this appeal.

                                          -8-
       In Va Lerie, the en banc court determined that law enforcement’s detention of
property entrusted to a third-party common carrier constitutes a Fourth Amendment
seizure only when the detention does any of the following: (1) “delay[s] a passenger’s
travel or significantly impact[s] the passenger’s freedom of movement,” (2) “delay[s]
[the checked luggage’s] timely delivery,” or (3) “deprive[s] the carrier of its custody
of the checked luggage.” Id. at 707. The Va Lerie Court concluded that none of the
factors were present and, as a result, held that no Fourth Amendment seizure occurred
when law enforcement officials removed Va Lerie’s bag from the bus and took it to
a room inside the Greyhound Bus Depot’s baggage terminal. Id. at 708-09. Alvarez-
Manzo concedes that this case turns on the third Va Lerie factor, whether law
enforcement deprived Greyhound of custody of Alvarez-Manzo’s bag. See id. at 707.

        With respect to the third Va Lerie factor, the en banc court stated that, in order
“[t]o test the breadth of the carrier’s custodial rights, we ask whether the government’s
actions go beyond the scope of the passenger’s reasonable expectations for how the
passenger’s luggage might be handled when in the carrier’s custody.” Id. at 707 n.7.
Applying this test to the facts before it, the Va Lerie Court determined,

      Va Lerie’s possessory interests in his checked luggage certainly included
      an expectation that Greyhound-or others at Greyhound’s request-would
      remove the luggage from the lower luggage compartment. The NSP
      would have preferred to bring Va Lerie to the bus in the refueling area
      to seek permission to search, but Greyhound asked the NSP not to bring
      passengers to that area. Thus, the NSP removed Va Lerie’s checked
      luggage from the lower luggage compartment to a room inside the
      terminal at Greyhound’s request. In doing so, the NSP never deprived
      Greyhound of its custody of Va Lerie’s checked luggage.

Id. at 708 (emphasis added). The Va Lerie Court also observed:

      Here, the NSP never deprived Greyhound of custody of the checked
      luggage, at least not until Va Lerie consented to a search that unveiled

                                           -9-
      cocaine. Indeed, the NSP adopted the policy of removing the luggage
      from the bus to present to the owner to seek consent to search at
      Greyhound’s prompting.

Id. at 708 n.9 (emphasis added).

       Here, in removing Alvarez-Manzo’s bag from the bus’s cargo area to the bus’s
passenger seating area to locate the bag’s owner, Investigator Eberle was not acting
at Greyhound’s direction. The government does not dispute this.7 Rather, the
government argues that, if taking a bag to a room inside the bus station was not a
seizure in Va Lerie, then taking a bag into the passenger section of the bus cannot
constitute a seizure in this case. However, this characterization of Va Lerie ignores
the en banc court’s discussion of the third factor which did not turn on where law
enforcement took the bag but at whose direction law enforcement acted when it did
so. See id. at 708, 708 n.9. In Va Lerie, law enforcement acted at Greyhound’s
request in taking Va Lerie’s bag from the cargo area of the bus to a room inside the
bus station. Id. Therefore, Va Lerie provides that law enforcement did not deprive
Greyhound of its custody of Va Lerie’s bag because, although law enforcement had



      7
       At oral argument before this court, the following exchange took place between
the panel and counsel for the government:

Q.    Did Greyhound ask the agents to take this luggage anywhere?

A.    This luggage, sir. Mr. Alvarez-Manzo’s?

Q.    Yeah.

A.    No sir.

Audio Recording of Oral Argument at 16:19-16:26, United States v. Alvarez-Manzo,
No. 08-2647 (8th Cir. Dec. 10, 2008).

                                        -10-
physical possession of the bag, Greyhound was directing the action in terms of what
law enforcement could do with Va Lerie’s bag. Id.

       In this case, the government concedes that Investigator Eberle took Alvarez-
Manzo’s bag into the passenger section of the bus of Investigator Eberle’s own accord
and not at the direction of Greyhound. See Audio Recording of Oral Argument at
16:19-16:26, United States v. Alvarez-Manzo, No. 08-2647 (8th Cir. Dec. 10, 2008).
Because Investigator Eberle, not Greyhound, was directing the action with respect to
Alvarez-Manzo’s bag, this case is distinguishable from Va Lerie. In sum, Officer
Eberle’s actions deprived Greyhound of its custody of Alvarez-Manzo’s bag. Thus,
law enforcement seized Alvarez-Manzo’s bag within the meaning of the Fourth
Amendment. Such a seizure must be supported by reasonable suspicion. See United
States v. Zacher, 465 F.3d 336, 338 (8th Cir. 2006) (“A law enforcement officer must
have reasonable suspicion before he or she may seize a package for investigatory
purposes.”). The district court determined that law enforcement lacked reasonable
suspicion to justify the seizure of the bag. The government does not challenge the
district court’s conclusion in this appeal. By failing to do so, the government has
waived review of the reasonable suspicion issue. See Jeseritz v. Potter, 282 F.3d 542,
548 (8th Cir. 2002) (providing that where a party does not challenge a holding of the
district court on appeal the party “waive[s] review of the . . . issue”). Accordingly, we
hold that the seizure of Alvarez-Manzo’s bag, without reasonable suspicion, violated
his Fourth Amendment rights.

                                           B.

       The government also argues that the district court clearly erred in finding
Alvarez-Manzo’s consent to the search of his wallet involuntary. However, the
government’s challenge to this finding is insufficient to call into question the court’s
decision to grant the motion to suppress. The district court suppressed the evidence
on the ground that Alvarez-Manzo’s consent to search was involuntary. But Alvarez-

                                          -11-
Manzo’s bag and person were unlawfully seized before Investigator Eberle sought
consent to search the wallet.8 Thus, even if the consent to search was voluntary,
standing alone, the evidence from the wallet still must be suppressed under the “fruit
of the poisonous tree” doctrine unless the consent was sufficient to purge the taint of
the unlawful seizure of Alvarez-Manzo’s bag and person.

       In a “fruit of the poisonous tree” doctrine case, a constitutional violation has
occurred, and the issue is whether law enforcement obtained evidence “by exploitation
of that illegality or instead by means sufficiently distinguishable to be purged of the
primary taint.” Wong Sun v. United States, 371 U.S. 471, 488 (1963). “[V]oluntary
consent to search, which was preceded by an illegal police action does not
automatically purge the taint of an illegal [seizure].” United States v. Esquivel, 507
F.3d 1154, 1160 (8th Cir. 2007) (quotation omitted). Rather, to purge the taint, i.e.
prevent the application of the “fruit of the poisonous tree” doctrine, the government
bears the burden of demonstrating that the voluntary consent was an independent,
lawful cause of the search. See United States v. Yousif, 308 F.3d 820, 830 (8th Cir.
2002). We determine whether this standard is met pursuant to the three factors
elucidated in Brown v. Illinois, 422 U.S. 590 (1975), considering: (1) the temporal
proximity between the Fourth Amendment violation and the grant of consent to
search; (2) the presence of any intervening circumstances; and (3) the purpose and
flagrancy of the officer’s Fourth Amendment violation. Id. at 603-04.

       Here, the government does not argue or make any attempt to show that Alvarez-
Manzo’s voluntary consent purged the taint of the two, prior constitutional violations:
(1) the seizure of his bag without reasonable suspicion and (2) the seizure of his


      8
       The district court concluded that there was an unlawful seizure of
Alvarez-Manzo’s person on the bus. Because the government challenged the district
court’s seizure-of-the-person determination for the first time at oral argument, we do
not consider this argument. See Cardinal Health 110, Inc. v. Cyrus Pharm., LLC, 560
F.3d 894, 902 n.5 (8th Cir. 2009).

                                         -12-
person without reasonable suspicion. Because the government has failed to
demonstrate that the causal connection between the illegal seizures and Alvarez-
Manzo’s consent was broken, the district court’s denial of the motion to suppress is
affirmed. See United States v. Reeves, 524 F.3d 1161, 1070-71 (10th Cir. 2008)
(holding that the defendant’s unlawful arrest in his hotel room rendered his subsequent
consent to the search of his room invalid, even though he signed a consent form
allowing the search after his arrest, because “[t]he government . . . completely failed
to address whether there was a break in the causal relationship between the unlawful
arrest and the subsequent search”). Accordingly, we do not reach the issue of
voluntariness.

                                         III.

     For the reasons given, we affirm the district court’s grant of Alvarez-Manzo’s
motion to suppress.
                      ______________________________




                                         -13-
