                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-1972
                                     ___________

United States of America,                 *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Nebraska.
Virginia Pena-Saiz,                       *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: October 20, 1998
                                  Filed: December 8, 1998
                                   ___________

Before BOWMAN, Chief Judge, BRIGHT and RICHARD S. ARNOLD, Circuit
      Judges.
                            ___________

BRIGHT, Circuit Judge.


       The United States appeals the district court’s grant of Virginia Pena-Saiz' motion
to suppress evidence that was obtained in a pat-down search during an investigatory
stop. The government asserts that Pena-Saiz consented to the search. The district
court rejected that contention. We agree and affirm.
                                 I. BACKGROUND

        On June 13, 1997, after deplaning from a flight from El Paso, Texas, Virginia
Pena-Saiz was stopped by three narcotics officers at Omaha's Eppley Airfield. During
the twenty-one minute encounter, which began in the baggage claim area and concluded
in the airport's drug interdiction office, the officers questioned Pena-Saiz, reviewed her
driver's license and plane ticket, searched her duffel bag, found within the bag a
wrapped gift, and asked to take the gift to the interdiction office so that the officers
could open it and review its contents. Pena-Saiz followed the officers to the
interdiction office, traveling to the escalator, which was 200 feet from the baggage
claim area, upstairs, behind a pair of doors, and down a hallway. During the trip to,
and within, the interdiction office and, in fact, throughout the entire encounter, the
officers never informed Pena-Saiz either that she was free to leave or that she did not
have to answer their questions.

        The officers neither found any drugs in Pena-Saiz' bag and gift, nor observed any
odd bulges in Pena-Saiz' clothing. Nonetheless, the officers persisted. They twice
asked Pena-Saiz for her consent to a pat-down search. When she did not accede, the
officers told her "This is our job. This is what we do. We talk to people, we search
people's bags, we pat search people. This is what we do everyday." R. at 32. Upon
Pena-Saiz' third refusal, the officers allegedly told Pena-Saiz that she was under arrest.
Believing that she had no choice, Pena-Saiz told the officers to "do what you have to
do." Id. One of the officers proceeded with the pat-down search and discovered on
Pena-Saiz' breast area an elastic bandage covering a bundle of white powder, which
later tested positive for cocaine. Pena-Saiz was arrested and charged with possession
of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

     Pena-Saiz successfully moved for suppression of the drug evidence. The
Honorable Joseph F. Bataillon, United States District Judge for the District of
Nebraska, found that, by the time that the officers finished searching Pena-Saiz' gift,

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the encounter had become an investigatory stop that required any further searches to
be supported either by Pena-Saiz' consent or by reasonable articulable suspicion. The
district court found that Pena-Saiz had not given her consent. Additionally, the court
found that the officers had no reasonable articulable suspicion to continue pressing
Pena-Saiz for a pat-down search because their earlier questioning and searches had not
uncovered any drugs or contraband. The United States appeals, arguing that the entire
encounter, including the pat-down search, was consensual.

                                   II. DISCUSSION

       In assessing the validity of the encounter and pat-down search, we review the
historical facts for clear error and the ultimate legal conclusions de novo. United States
v. Hathcock, 103 F.3d 714, 718 (8th Cir.), cert. denied, 117 S. Ct. 2528 (1997). Thus,
we review for clear error the district court's findings on the issue of consent. Id. By
contrast, we review de novo the issues of whether a seizure occurred and whether
reasonable articulable suspicion exists to justify a search. Id.

        We begin by evaluating the issue of seizure. A seizure occurs when, in the
totality of the circumstances surrounding the encounter, a reasonable person would
believe that she is not free to leave. United States v. Thompkins, 998 F.2d 629 (8th Cir.
1993). Seizing luggage without asking consent, or in spite of a suspect's refusal to
consent, or compelling a suspect to go to an interdiction room constitutes a show of
authority and creates a reasonable belief that the suspect is not free to leave. See, e.g.,
Florida v. Royer, 460 U.S. 491, 501 (1983) (finding that an encounter became an arrest
when the police asked the suspect to go to an interdiction room while retaining his
ticket and identification); United States v. Dixon, 51 F.3d 1376, 1380 (8th Cir. 1995)
(holding that a consensual encounter became a seizure when police informed the
suspect that he and his duffel bag would be detained until a police dog arrived to sniff
the bag); United States v. Green, 52 F.3d 194, 197-98 (8th Cir. 1995) (concluding that
a consensual encounter became a seizure when, despite the suspect's refusal to consent

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to a bag search, the police informed the suspect that his bag would be detained until a
police dog arrived). Here, by the time the parties arrived in the interdiction room, the
seizure of Pena-Saiz had occurred. Although, according to her testimony, Pena-Saiz
had given permission only to x-ray the contents of her gift, the officers took the gift to
the interdiction room for unwrapping and rewrapping. Pena-Saiz had no choice but to
follow the officers to the room a significant distance away. Once inside the interdiction
room, Pena-Saiz felt "very intimidated," as the officers did nothing to assure Pena-Saiz
that she was free to leave or to refuse to respond to their questions, and instead
essentially told her that the officers had a right to conduct the pat-down search because
it was their daily duty. Under the totality of those circumstances, a reasonable person
would have believed that she was not free to leave. For this reason, we determine that
Pena-Saiz was subject to a seizure protected by the Fourth Amendment.

        We turn to the constitutionality of the pat-down search. To come within the
bounds of a permissible Fourth Amendment search, the officers in this case needed
either reasonable articulable suspicion or Pena-Saiz' consent. United States v. Green,
52 F.3d 194, 197-98 (8th Cir. 1995). The government does not claim any reasonable
articulable suspicion as a basis for the search; nonetheless, we determine that the
officers possessed no such basis. Reasonable articulable suspicion must be more than
a hunch. Terry v. Ohio, 392 U.S. 1, 27 (1968). In this case, the officers' searches and
questioning had turned up nothing. There were no strange bulges in Pena-Saiz' clothing
or anything to indicate that she was engaged in drug activity. Thus, the officers
possessed no reasonable articulable suspicion to continue harassing Pena-Saiz for
consent to a pat-down search.

       We turn to the alleged consent. The voluntariness of consent raises a fact
question, to be determined from the totality of the circumstances, and subject to review
for clear error. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Hathcock, 103
F.3d at 720. Consent is not voluntary when it is the product of duress or coercion,
either express or implied. Schneckloth, 412 U.S. at 227. The record shows that Pena-


                                           -4-
Saiz believed that she was under arrest and that she had to submit to the pat-down
search. The officers did nothing to allay her fears but, rather, told her the opposite,
informing Pena-Saiz that "This is what we do. We talk to people, we search people's
bags, we pat search people. This is what we do everyday." R. at 32. The officers
persisted in their requests, and did not tell Pena-Saiz that she was free to leave. Thus,
the record supports the district court's finding that, under the totality of the
circumstances, Pena-Saiz did not voluntarily consent to the pat-down search, and that
the search resulted from an unlawful investigatory stop. See Green, 52 F.3d at 197-98.

                                III. CONCLUSION

       Having determined that the officers violated the Fourth Amendment rights of
appellee Pena-Saiz with respect to the pat-down search, we affirm the district court's
grant of Pena-Saiz' motion to suppress the evidence unlawfully seized.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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