                                                                                 PUBLISH


              IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                        01/27/2000
                        -------------------------------------------
                                                                     THOMAS K. KAHN
                                      No. 98-2100                        CLERK
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                      D. C. Docket No. 97-00120-CR-J-21B


UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

     versus

RUVEL ALFRED SMITH, JR., a.k.a. Rube Smith, etc.,

                                                         Defendant-Appellant.

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                   Appeal from the United States District Court
                          for the Middle District of Florida
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                                  (January 27, 2000)



Before EDMONDSON and MARCUS, Circuit Judges, and STROM*, Senior District
Judge.

________________
*    Honorable Lyle E. Strom, Senior U.S. District Judge for the District of
     Nebraska, sitting by designation.
EDMONDSON, Circuit Judge:
      Defendant, Ruvel Alfred Smith, Jr., appeals his convictions for conspiring to

distribute cocaine and possessing cocaine with intent to distribute, in violation of 21

U.S.C. §§ 841 and 846. Defendant asserts that the district court erred in denying

Defendant’s motion to suppress. We affirm.



                                  BACKGROUND



      This case arises from a bus check at a Jacksonville, Florida, bus station. On

5 May 1997, DEA Special Agent Bruce Savell and Border Patrol Agent James

Perkins were conducting narcotics-interdiction surveillance at the bus station.

Savell, inside the bus terminal, noticed Defendant’s co-indictee, Joseph Tee

Bruton. According to Savell, Bruton constantly changed seats, walked around, and

scanned the terminal. Bruton watched every passenger who walked through the

terminal. Bruton appeared nervous. Savell also noticed two new, hard-sided,

suitcases sitting unattended in the terminal. The suitcases appeared to be

expensive. Savell observed Bruton and the suitcases for approximately forty

minutes.

      At some point, Bruton met with Defendant inside the terminal. The two men

engaged in a quick, whispered conversation. Defendant and Bruton then turned

                                          2
away from each other and walked in opposite directions. After this exchange,

Savell began to observe Defendant. Savell noted that Defendant also walked

around the terminal, switched seats, and went in and out of the terminal.

           Soon thereafter, Bruton sat down with the previously unattended suitcases

between his legs. A boarding announcement was made for a northbound bus, and

Bruton picked up the suitcases and walked toward the boarding gate. As he

approached the gate, Bruton slid one suitcase across the terminal floor to

Defendant. Bruton and Defendant each carried one suitcase through the gate.

           Agent Savell waited for about four minutes and then went through the

boarding gate. Savell saw the two suitcases in the undercarriage of the bus. He

checked the baggage tags attached to the suitcases; the tags revealed that the

suitcases belonged to a “Mr. Pender” and had originated in Miami, Florida.

           At that point, based on his training and experience,1 Savell suspected that

Defendant and Bruton were carrying drugs in the suitcases.2 Savell requested and



   1
    At the time of this incident, Savell had been a DEA agent for six years. During those six years,
Savell had conducted surveillance and searches at bus stations on hundreds of occasions.
       2
      Savell testified that his suspicion was based on several considerations, including Bruton’s
scanning the terminal and other bus passengers, Defendant and Bruton’s nervous behavior, their
whispered conversation, and their leaving the suitcases unattended for more than half an hour in the
terminal. Savell testified that, in his experience conducting drug-interdiction at the bus station, drug
couriers frequently leave their narcotics-laden luggage unattended until immediately before
boarding.

                                                   3
obtained the bus driver’s permission to board the bus and to conduct a bus check.

Savell and Perkins, although dressed in plainclothes, displayed their badges as they

boarded the bus. The agents’ firearms were concealed. Perkins announced to the

passengers:

      Good morning, ladies and gentlemen, my partner and I are both
      federal agents of the United States Department of Justice. Nobody is
      under arrest or anything like that, we’re just conducting a routine
      public transportation safety check. When we get to you, if you would
      please show us your bus ticket, some photo identification, if you have
      some with you, please. And, most importantly, if you would identify
      which bags are yours on the bus, we’d appreciate it, and we’ll be out
      of your way real quick.

Neither Savell nor Perkins expressly informed the passengers that their cooperation

was voluntary. The agents then, beginning in the back of the bus and making their

way forward, spoke individually with each passenger. The agents, in addition to

inspecting each passenger’s ticket and identification, asked each passenger whether

the passenger was carrying weapons, drugs, or large amounts of money. The

agents stood behind each passenger and did not block the aisle of (or exit from) the

bus as they conducted their bus check. The check of passengers failed to reveal a

“Mr. Pender” aboard the bus.

      When approached by the agents, Defendant offered a one-way ticket from

Miami to Charleston, South Carolina, and a driver’s license for the agents’

inspection. Bruton also displayed a ticket from Miami to Charleston; Bruton said

                                         4
that he was carrying no identification. Defendant and Bruton each denied that he

was carrying drugs or weapons, that he had checked luggage, and that he was

traveling with anyone. Defendant and Bruton permitted the agents to search their

carry-on luggage. The agents frisked Defendant and Bruton, but they found no

weapons.

         After the agents completed their survey of the passengers, Savell retrieved

the two pertinent suitcases from the undercarriage and brought them aboard the

bus. Savell asked whether a passenger claimed ownership of the suitcases. No

passenger claimed to own the suitcases. Savell then directly asked Defendant and

Bruton, individually, whether they owned the suitcases. Both Defendant and

Bruton denied ownership of the suitcases.

         Savell and Perkins, assisted by two Florida Highway Patrolmen, then opened

the suitcases. The agents discovered eleven kilograms of cocaine in the suitcases.

Defendant and Bruton were arrested.3 After making the arrests, the agents

discovered a bus ticket in the name of “Pender” concealed in a seat near Defendant

and Bruton.

         Defendant moved the district court to suppress certain evidence, including

the cocaine found in the suitcases, the Pender ticket, and various statements made


   3
       Bruton pled guilty and later testified against Defendant at trial.

                                                   5
by Defendant. Defendant argued that the discovery of all of this evidence flowed

from the agents’ check of bus passengers. Defendant asserted that the bus check

was an unlawful seizure of the bus passengers in violation of the Fourth

Amendment. Thus, Defendant contended, the evidence should be suppressed as

“fruits of the poisonous tree.” The district court disagreed, however, concluding

that the bus check did not amount to a “seizure.” The district court accordingly

denied Defendant’s motion to suppress. Defendant was tried by jury and

convicted. Defendant appeals.



                                  DISCUSSION



      Defendant contends that the district court erred in denying his

motion to suppress because: (1) the bus check was a “seizure” within the meaning

of the Fourth Amendment; (2) the seizure was not reasonable and violated the

Fourth Amendment; and (3) the fruits of the seizure, therefore, must be suppressed.

We accept Defendant’s first contention: Circuit precedent mandates the conclusion

that the bus check was a “seizure.” We, however, conclude that the agents’ seizure




                                         6
of Defendant aboard the bus was reasonable under the Fourth Amendment.4 The

district court, therefore, did not err in denying Defendant’s motion to suppress.



1.       WHETHER THE BUS CHECK WAS A “SEIZURE”



         A well-established principle of Fourth Amendment jurisprudence is that a

seizure does not occur just because a police officer approaches a person and asks

the person a few questions. Florida v. Royer, 103 S. Ct. 1319, 1324 (1983). The

Supreme Court, accordingly, has said that a bus check, where government agents

board a bus and ask questions of the passengers, is not necessarily a seizure.

Florida v. Bostick, 111 S. Ct. 2382, 2387-88 (1991). Instead, “the crucial test is

whether, taking into account all of the circumstances surrounding the encounter,

the police conduct would ‘have communicated to a reasonable person that he was

not at liberty to ignore the police presence and go about his business.’” Id. at 2387.

         In United States v. Washington, 151 F.3d 1354 (11th Cir. 1998), this court

considered the propriety of a bus check conducted in a manner nearly identical to


     4
    Because we conclude that the bus check was reasonable under the Fourth Amendment, we need
not consider the Government’s alternative contention that, even if the bus check was an
unreasonable seizure, the fruits of the bus check are nonetheless admissible under the inevitable
discovery doctrine. See generally, Nix v. Williams, 104 S. Ct. 2501, 2509 (1984) (adopting
inevitable discovery exception to exclusionary rule).

                                               7
the bus check in this case (and, involving the same officers). In that case, the two

officers, casually dressed and with their weapons concealed, boarded a bus at the

Jacksonville bus station. The officers displayed their badges and announced:

      Good morning, ladies and gentlemen. My partner and I are both
      federal agents with the United States Department of Justice. No one is
      under arrest or anything like that, we’re just conducting a routine bus
      check. When we get to you, if we could please see your bus ticket,
      some photo identification if you have some with you, please, and if
      you would please identify which bag[] is yours on the bus we’d
      appreciate it and we’ll be out of your way just as quick as we can.

Id. at 1355. The officers went to the rear of the bus and began working their way

forward, speaking individually with each passenger and asking them if they were

carrying “drugs, weapons, large sums of money, or firearms.” Id. The officers

stood behind each passenger as they spoke and did not block the passenger’s

access to the aisle of the bus. Neither officer told the passengers that their

cooperation was voluntary. Id. at 1355-56. The court decided that, under those

particular circumstances, the bus check constituted a “seizure.” Id. at 1357.

      We see no important distinction between the conduct of the bus check in this

case and the conduct of the bus check in Washington. “[I]t is the firmly

established rule of this Circuit that each succeeding panel is bound by the holding

of the first panel to address an issue of law, unless and until that holding is

overruled en banc, or by the Supreme Court.” United States v. Hogan, 986 F.2d


                                           8
1364, 1369 (11th Cir. 1993). Given the virtual identity of the essential facts, we,

therefore, are bound by the Washington court’s decision on the question of

seizure.5 Overcome by precedent, we must conclude that the bus check in this case

amounted to a “seizure” within the meaning of the Fourth Amendment.



2.       WHETHER THE SEIZURE VIOLATED THE FOURTH AMENDMENT



         Our conclusion that this bus check constitutes a seizure does not end our

inquiry, however.6 Instead, we must now examine whether the seizure was

reasonable under the Fourth Amendment.7 The temporary, investigative detention

     5
     That Washington controls our determination that this bus check is a seizure does not mean that
every bus check in this Circuit is a seizure. As the Supreme Court has acknowledged, whether a bus
check constitutes a seizure is a very fact-sensitive inquiry; for this very reason, the Supreme Court
has rejected per se rules governing bus checks. Bostick, 111 S. Ct. at 2389. But, because we find
the facts of legal significance in this case identical to those in Washington, we conclude that
Washington controls the seizure issue in this case. See generally, New Port Largo, Inc. v. Monroe
County, 985 F.2d 1488, 1500 n.7 (11th Cir. 1993) (Edmondson, J., specially concurring) (discussing
precedential value of prior panel decisions).
     6
     “The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but
only against unreasonable searches and seizures.” United States v. Sharpe, 105 S. Ct. 1568, 1573
(1985) (emphasis in original).
     7
      Although Washington resolves the question of whether this bus check was a “seizure,” it is
wholly inapposite to the second step of our inquiry: given that a seizure occurred, whether the
seizure was a reasonable one under the Fourth Amendment. In Washington, it does not appear that
the Government contended that (or that the court addressed whether), even if the bus check was a
seizure, the seizure was nonetheless reasonable: that is, the seizure was properly based upon the
officers’ reasonable suspicion or probable cause. See Washington, 151 F.3d at 1357. In this case,
the Government, however, vigorously asserts that, even if the bus check was a seizure, it was a

                                                 9
of a person is constitutionally permissible if there exists, at the time of the

detention, a reasonable suspicion that the person detained has been, is, or is about

to be involved in criminal activity.8 United States v. Blackman, 66 F.3d 1572,

1576 (11th Cir. 1995). Because we conclude that such a reasonable suspicion

existed, at the time of the bus check, the district court did not err in denying

Defendant’s motion to suppress.

        Although reasonable suspicion “requires more than a hunch,” id., “the

requisite level of suspicion to make an investigative stop is ‘considerably less than

proof of wrongdoing by a preponderance of the evidence.’” United States v.

Glover, 957 F.2d 1004, 1009 (2d Cir. 1992) (quoting United States v. Villegas, 928

F.2d 512, 516 (2d Cir. 1991)). In deciding whether the detaining officers had

reasonable suspicion, we look at the totality of the circumstances known to the

detaining officers at the time of the detention. United States v. Mikell, 102 F.3d

470, 475 (11th Cir. 1996); United States v. Cruz, 909 F.2d 422, 424 (11th Cir.



constitutionally valid seizure.
    8
     In general, a seizure is constitutionally infirm unless the seizing officer has probable cause.
Lindsey v. Storey, 936 F.2d 554, 558 (11th Cir. 1991). Where, however, the seizure is brief and
minimally intrusive--a temporary, investigative detention--the seizing officer only need have “a
reasonable articulable suspicion based on objective facts that the person has engaged in criminal
activity.” United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995). Given the minimal
degree of intrusiveness involved in the bus check in this case, we treat the bus check as a temporary,
investigative detention, requiring only a reasonable suspicion. See id. at 1576-77.

                                                 10
1989). And, we view the totality of the circumstances in the light of the officers’

special training and experience. United States v. Brignoni-Ponce, 95 S. Ct. 2574,

2582 (1975); see also United States v. Cortez, 101 S. Ct. 690, 695 (1981); United

States v. Bowles, 625 F.2d 526, 533-34 (5th Cir. 1980). We also bear in mind that

behavior, seemingly innocuous to the ordinary citizen, may “appear suspect to one

familiar with the practices of narcotics couriers.” Glover, 957 F.2d at 1010; see

also United States v. Mendenhall, 100 S. Ct. 1870, 1882 (1980) (Powell, J.,

concurring); United States v. Gonzalez, 969 F.2d 999, 1004 (11th Cir. 1992).

      In this case, given Agent Savell’s training and experience, we conclude that

the totality of the circumstances created a reasonable suspicion that Defendant and

Bruton were engaged in criminal activity. Defendant and Bruton both appeared

nervous in the bus terminal. See United States v. Cruz-Hernandez, 62 F.3d 1353,

1356 n.2 (11th Cir. 1995) (considering suspect’s nervousness as factor contributing

to reasonable suspicion). Defendant and Bruton’s whispered conversation in the

bus terminal and their joint transportation of the suitcases made apparent that they

were traveling together; yet, they waited separately in the bus terminal, before the

boarding call, apparently attempting to conceal their association. See Bowles, 625

F.2d at 534-35 (considering suspects’ “efforts to hide association” in airport

terminal as factor contributing to reasonable suspicion). Defendant and Bruton left


                                         11
their new, expensive suitcases unattended until immediately before boarding;

Agent Savell testified that this is a common practice among drug couriers. See

Brignoni-Ponce, 95 S. Ct. at 2582 (“In all situations, the officer is entitled to assess

the facts in light of his experience in detecting [narcotics trafficking].”). The

suitcases originated in Miami, a known “source city” for narcotics on the East

Coast. See Bowles, 625 F.2d at 534 (finding fact that suspect was traveling from

known drug source city “not an insignificant factor”). And, Bruton scanned and

surveilled the terminal, watching every person who passed by him in the bus

station. See Mendenhall, 100 S. Ct. at 1882 (Powell, J., concurring) (noting as

factor in reasonable suspicion analysis that suspect “scanned the entire gate area”);

see also United States v. Puglisi, 723 F.2d 779, 789 (11th Cir. 1984); Bowles, 625

F.2d at 535; United States v. Barnard, 553 F.2d 389, 391-92 (5th Cir. 1977).

      We conclude that, at the time of the bus check, ample facts existed to give

rise to a reasonable suspicion that Defendant and Bruton were involved in criminal

activity. The temporary, investigative detention of Defendant aboard the bus,

consequently, was reasonable under the Fourth Amendment. The district court,

therefore, properly denied Defendant’s motion to suppress. Defendant’s

convictions and sentence are AFFIRMED.

      AFFIRMED.


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