F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 31, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 04-5118
R AD A M E S D E JESU S O JED A-
RA M OS,
Defendant - Appellant.
Appeal from the United States District Court
for the N orthern District of Oklahom a
(D .C. No. 03-CR-148-EA)
Kevin C. Danielson, Assistant United States Attorney, (David E. O’M eilia, United
States A ttorney, and Neal B. Kirkpatrick, Assistant United States A ttorney, with
him on the briefs), Tulsa, Oklahoma, for Plaintiff-Appellee.
Robert Ridenour, Assistant Federal Public D efender (Paul D. Brunton, Public
Defender, and Barry L. Derryberry, Research & W riting Specialist, with him on
the briefs), Tulsa, Oklahoma, for D efendant-Appellant.
Before TA CH A, Chief Circuit Judge, ANDERSON and O’BRIEN, Circuit
Judges.
O’BRIEN, Circuit Judge.
During a routine screening of luggage in a bus stop, a drug dog alerted to a
blue suitcase. The police used a ruse to cause Radames De Jesus Ojeda Ramos
(Ojeda-Ramos) to claim the suitcase. He moved to suppress incriminating
information and now appeals from the district court’s denial of his motion.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
On September 17, 2003, Ojeda-Ramos, a Panamanian national, was
traveling by Greyhound bus from Calexico, California, to Newark, New Jersey.
During a scheduled stop in Tulsa, Oklahoma, all twenty-five passengers,
including Ojeda-Ramos, left the bus. 1 Thereafter, Tulsa Police Officer Pat
Dunlap had a canine sniff the cargo bays. 2 The dog alerted to a blue suitcase,
which was locked and bore a tag containing the name “Ojeda-Ramos R.” and a
telephone number. (R. Vol. IV at 38.)
Typically, passengers re-board the bus fifteen minutes prior to departure.
In this case, however, Officer Dunlap directed the bus driver to recall the
passengers ten minutes earlier, 3 i.e., twenty-five minutes prior to departure, in
1
Although the bus was scheduled to arrive in Tulsa at 11:50 A.M ., it was
ten minutes late. The stop was scheduled to last approximately an hour and a
half. During such stops, the bus driver requires the passengers to leave the bus.
2
Dunlap averaged three to five drug investigations per week at the Tulsa
Greyhound bus station. Greyhound management condoned and assisted police
officers in their drug interdiction efforts.
3
The bus departed on schedule.
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order to attempt to determine which passenger was connected to the blue
suitcase. 4 After the passengers re-boarded the bus, Officer Dunlap, posing as a
Greyhound employee wearing a Greyhound shirt and hat, informed them the bus
had mechanical problems. He directed the passengers to leave the bus, claim
their luggage and await the arrival of another bus. Dunlap then began removing
luggage from the cargo bays. W hile doing so, he observed Ojeda-Ramos walk up
to the blue suitcase, look down at it, stand it on end, and examine its tag. 5
Officer Dunlap approached Ojeda-Ramos, identified himself as a police
officer and received Ojeda-Ramos’s permission to speak with him. Dunlap asked
Ojeda-Ramos for his bus ticket; the name on the ticket matched the name on the
blue suitcase’s tag. He then requested identification. Ojeda-Ramos provided
Dunlap with his passport and United States visa. Next, Dunlap asked Ojeda-
Ramos why a drug dog had alerted to his suitcase. Ojeda-Ramos responded, “I
don’t speak English.” (R. Vol. IV at 58.) Dunlap asked Ojeda-Ramos if the bag
belonged to him. Ojeda-Ramos replied in English, “That’s not my bag.” (Id.)
4
Greyhound does not have passenger manifests. Therefore, Officer Dunlap
could not simply look at a list of passengers and their seat assignments to
determine who owned the suitcase.
5
In its order denying Ojeda-Ramos’s motion to suppress, the district court
stated Ojeda-Ramos also moved the suitcase approximately one foot to his left
and stood by it. It appears this fact came from the government’s response to
Ojeda-Ramos’s motion to suppress, which contained no record citations. Because
the testim ony at the motion to suppress hearing does not support this finding, w e
disregard it.
-3-
Finally, Dunlap asked Ojeda-Ramos to accompany him to the parcel storage area
of the bus station. Ojeda-Ramos agreed, picked up the suitcase and followed
Dunlap into the parcel storage room. 6 The other passengers re-boarded the bus,
which departed on time.
In the parcel storage room, Dunlap asked Ojeda-Ramos if he could search
the suitcase. Ojeda-Ramos again replied in English, “That’s not my bag.” (Id. at
61.) Considering the suitcase abandoned, another officer broke the lock on the
suitcase, searched it and discovered approximately twelve pounds of heroin.
Ojeda-Ramos was arrested and read his M iranda 7 rights in English. He remained
silent. Later, after he requested an interpreter and w as read his M iranda rights in
Spanish, O jeda-R amos confessed to Drug Enforcement Administration (DEA)
officers.
On October 10, 2003, Ojeda-Ramos was indicted for possession with intent
to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A )(I). H e filed a motion to suppress all evidence against him, arguing it
6
There is some discrepancy between the affidavit of the officer who
completed the criminal complaint and Officer Dunlap’s testimony and report
concerning whether Ojeda-Ramos carried the suitcase to the parcel storage area
on his own volition or pursuant to Dunlap’s request. Since this factual finding is
relevant to our discussion of w hether Ojeda-Ramos abandoned the suitcase, we
will assume (for this appeal) he voluntarily carried the suitcase to the parcel
storage room. That assumption accords w ith Ojeda-Ramos’s argument that his
actions were inconsistent with abandonment. The favorable assumption does not
save him.
7
M iranda v. Arizona, 384 U.S. 436 (1966).
-4-
was obtained in violation of the Fourth Amendment. After a hearing the district
court denied the motion. It concluded: (1) the passengers were not seized under
the Fourth Amendment when Officer Dunlap ordered them to leave the bus and
claim their luggage; (2) Officer Dunlap’s order for the passengers to leave the
bus, made while posing as a Greyhound employee, was not illegal; (3) Officer
Dunlap had probable cause to seize Ojeda-Ramos and bring him to the parcel
room; and (4) the w arrantless search of the blue suitcase was valid because
Ojeda-Ramos voluntarily abandoned it. Subsequently, Ojeda-Ramos pled guilty,
reserving the right to appeal from the denial of his motion to suppress. He was
sentenced to eighty-seven months imprisonment.
II. Standard of Review
In reviewing the denial of a motion to suppress, we accept factual findings
unless they are clearly erroneous and view the evidence in the light most
favorable to the ruling. United States v. West, 219 F.3d 1171, 1176 (10th Cir.
2000). However, the ultimate determination of reasonableness under the Fourth
Amendment is a question of law reviewed de novo. Id.
III. Discussion
Ojeda-Ramos contends the district court erred in denying his motion to
suppress because (1) he was unlawfully seized when Officer Dunlap, disguised as
a Greyhound employee, ordered him and the other passengers to leave the bus and
claim their luggage, (2) the suitcase was not voluntarily abandoned, and (3) the
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warrantless search of the suitcase was unlaw ful. We address each argument in
turn.
A. Seizure
The district court made two seizure determinations. First, Officer Dunlap’s
order to leave the bus and claim luggage, made under the guise of being a
Greyhound employee, was not a seizure. Second, Ojeda-Ramos was seized when
Officer Dunlap directed him to the parcel storage room, but the seizure was
lawful. At that time Officer Dunlap had individualized suspicion that the suitcase
belonged to Ojeda-Ramos based on (1) his actions in response to D unlap’s ruse
and (2) his bus ticket, which matched the name on the suitcase’s tag. See City of
Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (“A search or seizure is
ordinarily unreasonable in the absence of individualized suspicion of
wrongdoing.”); Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“W here the standard is
probable cause, a search or seizure of a person must be supported by probable
cause particularized with respect to that person.”).
Ojeda-Ramos challenges only the district court’s conclusion that Dunlap’s
order to leave the bus and claim luggage did not constitute a seizure. 8 He
8
It is undisputed that the drug dog’s alert to the blue suitcase provided
Officer Dunlap with probable cause to believe the suitcase contained illegal
drugs. United States v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (“A
canine alert provides the probable cause necessary for searches and seizures.”).
Based on this belief, Officer Dunlap reasonably attempted to locate the individual
connected to the suitcase.
W ere we to conclude Officer Dunlap’s order constituted an unlawful
-6-
concedes D unlap neither advertised nor exploited his law enforcement powers
when he made the order. Nevertheless, he argues the order would have caused a
reasonable person to believe he was not free to ignore the request or terminate the
encounter. Because the order was made under the guise of being a Greyhound
employee, Ojeda-Ramos asserts the passengers w ould have felt compelled to
comply in response to the directive of a bus company representative. W e start by
looking at ruse cases in general and then discuss this particular ruse.
In United States v. Flynn, law enforcement officers set up signs on a
highway informing motorists they were approaching a drug checkpoint. 309 F.3d
736 (10th Cir. 2002). W hen the defendant observed the signs, he made an abrupt
lane change and immediately took the nearest exit. At the top of the exit ramp,
the defendant stopped his vehicle and his passenger dropped a package from the
car. Officers hidden near the top of the exit ramp examined the package and
discovered methamphetamine. Other officers pulled the defendant’s vehicle over
and arrested him. Flynn moved, unsuccessfully, to suppress the
methamphetamine. On appeal, he argued the abandonment of the package was
involuntary because it resulted from law enforcement’s illegal conduct in
operating a drug checkpoint. Id. at 738. W e rejected the argument, concluding:
Up to [the moment the defendant’s vehicle was stopped by the police],
seizure, then the validity of Ojeda-Ramos’s subsequent detention would be called
into question under the “fruit of the poisonous tree” doctrine. See Wong Sun v.
United States, 371 U.S. 471, 487-88 (1963).
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[the defendant] acted voluntarily in response to a ruse established by
the police (the signs w arning of a fictitious checkpoint on I-40). The
posting of signs to create a ruse does not constitute illegal police
activity. . . . The officers put up the signs only as a ruse to observe
suspicious behavior by those who might take the nearest exit after
seeing the signs. . . . The creation of a ruse to cause the defendant to
abandon an item is not illegal.
Id. at 738-39.
Similarly, in United States v. Alejandro, four police officers, wearing
bulletproof vests and insignia identifying them as law enforcement officers,
attempted to serve an arrest warrant on the defendant at his residence. 368 F.3d
130 (2d Cir. 2004). They knocked on the door for three to five minutes but no
one answered. Eventually, one of the officers announced he was a gas company
employee, there was a gas leak in the area and he needed to enter the apartment.
Upon hearing this, Alejandro opened the door. The four officers, with weapons
drawn, identified themselves as police officers and arrested him. After securing
Alejandro, the officers conducted a sweep of his residence, which lead to the
discovery of a suspicious “Igloo” cooler. The officers obtained a search warrant
and seized the cooler which contained money and illicit drugs. Alejandro moved
to suppress the evidence seized from his residence, arguing it was the fruit of the
officers’ entry into his residence in violation of the “knock and announce” rule
contained in 18 U.S.C. § 3109. The district court denied the motion. On review
the Second Circuit concluded the officers’ ruse to gain entry to the residence
violated neither § 3109 nor the Fourth Amendment. Id. at 137. See also Lewis v.
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United States, 385 U.S. 206, 209 (1966) (“[I]n the detection of many types of
crime, the Government is entitled to use decoys and conceal the identity of its
agents.”); United States v. M ichaud, 268 F.3d 728, 733 (9th Cir. 2001) (officer’s
use of ruse to execute arrest warrant did not violate the Fourth Amendment).
In United States v. Garzon, (discussed in detail, infra at 15-18), the
defendant was a passenger on a Greyhound bus traveling east from Los Angeles,
California. 119 F.3d 1446 (10th Cir. 1997). On a layover in Denver, Colorado,
an agent with the Drug Enforcement Agency (DEA) boarded the bus. The agent
informed the passengers police were conducting drug interdiction activities at the
terminal and a drug dog was waiting outside the bus. The agent then directed the
passengers to remove all carry-on baggage and hold it in their right hand as they
passed the dog. The agent knew dog sniffs of moving luggage are not particularly
reliable, but that was not the point. His real purpose was to observe the
passengers’ reactions as they passed by the dog. Id. at 1448 n.1. W hen Garzon
left the bus, he held his bag high on his left side, aw ay from the dog. His
behavior triggered police interest. W hen they later discovered two backpacks
containing drugs left on the bus, they immediately suspected Garzon, who was
arrested and convicted. Those backpacks were treated as abandoned property by
the district court. We reversed, finding no abandonment.
In both Flynn and Alejandro the police misrepresented the facts— there was
no drug check point in Flynn and the officers in Alejandro did not work for the
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gas company— in order to observe or influence the defendants’ actions. In Flynn,
the police misrepresented the facts in order to observe motorist reaction to the
misinformation. In Alejandro, the police went a bit further— requesting access to
a home based on misinformation. This case is somewhat different (as is Garzon)
because not only did Officer Dunlap wish to observe passenger reaction to
misinformation but also required, or purported to require, an affirmative act of the
passengers. That sets up our seizure analysis. 9
Early cases suggested a person “has been ‘seized’ within the meaning of the
Fourth Amendment only if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave.”
United States v. M endenhall, 446 U.S. 544, 554 (1980); see also Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968) (“[N]ot all personal intercourse between policemen
and citizens involves ‘seizures’ of persons. Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a
9
Here, Dunlap had probable cause to believe the ow ner of the blue suitcase
possessed contraband based on the drug dog’s alert to the suitcase. United States
v. Anchondo, 156 F.3d 1043, 1045 (10th Cir. 1998) (“A canine alert provides the
probable cause necessary for searches and seizures.”). Ojeda-Ramos does not
contend otherw ise. Officer Dunlap also reasonably suspected that one or more
passengers on the bus owned it. His testimony at the suppression hearing that
ninety percent of the time, “if there’s bag on the bus, there’s going to be a
passenger attached to it,” eliminated other reasonable hypotheses. (R. Vol. IV at
37.) Based on this suspicion, he was justified in attempting to locate the owner.
The question presented is whether the means used to locate the owner (posing as a
Greyhound employee, informing the passengers the bus had mechanical problems
and ordering the passengers to leave the bus and claim their luggage) passes
Fourth Amendment muster, specifically, whether it was a seizure.
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citizen may we conclude that a ‘seizure’ has occurred.”). To that end we have
considered several non-exclusive factors in determining whether an individual has
been “seized,” including: “1) the threatening presence of several officers; 2) the
brandishing of a weapon by an officer; 3) some physical touching by an officer;
4) use of aggressive language or tone of voice indicating that compliance with an
officer’s request is compulsory; 5) prolonged retention of a person’s personal
effects . . . ; 6) a request to accompany the officer to the station; 7) interaction in
a nonpublic place or a small, enclosed place; 8) and absence of other members of
the public.” Jones v. Hunt, 410 F.3d 1221, 1226 (10th Cir. 2005) (quotations
omitted).
But M endenhall’s “free to leave” test is not exhaustive or universal. For
instance, in Florida v. Bostick, the Court addressed a situation where the police
boarded a bus and asked permission to search the defendant’s luggage. 501 U.S.
429 (1991). The search revealed cocaine. The defendant claimed he was
unlawfully seized because a reasonable person would not have believed he was
free to leave given the fact he was on a crowded bus scheduled to depart. The
Supreme Court rejected his argument, stating the defendant would not have felt
free to leave even if the police had not been present. It concluded:
[The defendant’s] freedom of movement was restricted by a factor
independent of police conduct--i.e., by his being a passenger on a bus.
Accordingly, the “free to leave” analysis on which [the defendant]
relies is inapplicable. In such a situation, the appropriate inquiry is
whether a reasonable person would feel free to decline the officers’
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requests or otherw ise terminate the encounter.
Id. at 436; see also United States v. Drayton, 536 U.S. 194, 201 (2002) (“If a
reasonable person would feel free to terminate the encounter, then he or she has
not been seized.”).
Under either of these tests, Dunlap’s order to leave the bus and claim
luggage was not a seizure and would not have been even if he had identified
himself as a police officer. He wanted the passengers to comply, 10 but he did not
demand, intimidate, threaten or use force against them. However compulsory
Dunlap’s order may have appeared, it would not have left an impression upon a
reasonable person that he was not “free to leave.” After all, Dunlap required the
passengers to leave the bus, not remain on it. The passengers were not only free
to leave, they could have ignored Dunlap’s request to claim their luggage. 11
“W hile most citizens will respond to a police request, the fact that people do so,
and do so without being told they are free not to respond, hardly eliminates the
consensual nature of the response.” Drayton, 536 U.S. at 205. 12 Ojeda-Ramos
10
Dunlap candidly admitted he would have pressured any passenger who
remained on the bus to follow his directive. That did not become necessary.
11
According to Dunlap, if a passenger left the bus and walked away, a
police officer would have stopped the individual and attempted to talk to him.
Had that occurred, we would be looking at a significantly different case. See
Garzon discussion, infra at 15-18.
12
In Drayton, the defendants were traveling by Greyhound bus. The bus
made a scheduled stop in Tallahassee, Florida, and the passengers disembarked.
After the passengers had re-boarded the bus to continue their travels, the bus
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acted voluntarily in associating himself with his luggage. W hen he left the bus he
could have continued out of the area, even left the bus station.
Dunlap’s disguise as a Greyhound employee is irrelevant. Conceding the
ruse most likely influenced Ojeda-Ramos’s actions does not change the calculus.
Had Ojeda-Ramos known he was dealing with a police officer, he may not have
approached the blue suitcase or may have left the bus terminal to avoid detection.
driver allowed three police officers to board the bus as part of a routine drug and
weapons interdiction effort. Officer Hoover knelt on the driver’s seat and faced
the rear of the bus, allowing him to observe the passengers and ensure the safety
of the other two officers without blocking the aisle or the exit. Officers
Blackburn and Lang proceeded to the rear of the bus where Blackburn stationed
himself, facing forward. M eanwhile, Lang, without blocking the aisle, worked his
way toward the front of the bus, speaking with passengers concerning their travel
plans and seeking to match them with the overhead luggage. The defendants were
seated next to each other. W hen Lang approached, he identified himself as a
police officer, his purpose for being there and asked if they had any bags on the
bus. Both defendants pointed to a single bag. After obtaining their permission,
Lang searched the bag, finding no contraband. Because the defendants were
wearing heavy jackets (despite the warm weather) and baggy pants (which drug
traffickers often use to conceal weapons and narcotics), Lang asked them if he
could search their persons. Both defendants consented. Lang discovered drugs
and arrested them.
Applying Bostick, the Supreme Court concluded the police officers did not
seize the defendants when they boarded the bus and began questioning the
passengers. 536 U.S. at 203. It considered the following factors dispositive: (1)
the officers gave the passengers no reason to believe they were required to answer
the officers’ questions; (2) when Officer Lang approached the defendants, he did
not brandish a weapon or make any intimidating movements and spoke in a polite,
quiet voice; (3) Officer Lang left the aisle free so the defendants could exit; and
(4) O fficer Hoover did nothing to intimidate the passengers and said nothing to
suggest they could not leave the bus. Id. at 203-05.
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However, that is not the test. 13 A ruse by law enforcement officers to influence
behavior is not prohibited unless it is unconstitutional. See Flynn, supra at 8;
Alejandro, supra at 8-9; M ichaud, supra at 9. Because Dunlap’s actions w ould
not have been a seizure if he had identified himself as a police officer, the ruse
did not violate Ojeda-Ramos’ constitutional rights. Speculation about whether he
might have behaved differently absent the ruse does not inform the debate.
Ojeda-Ramos relies on Garzon to argue for a different conclusion. To
repeat, the agent’s order in Garzon directed the passengers to collect their
luggage and carry it in their right hand past a drug dog as they left the bus.
Although Garzon complied with their request to leave the bus, he ignored the
request to carry his luggage in his right hand near the dog. He carried a blue
backpack high and on the left side, away from the dog. His behavior did not go
unnoticed. O nce all of the passengers left the bus, officers discovered two
backpacks in the bus. The officers made a limited inquiry as to their ownership,
but no one claimed them. The bags were then subjected to a canine sniff. The
sniff was unequivocal— the dog’s aggressive alert, pawing at the bags, caused one
of them to open, spilling its contents. Officers then conducted a w arrantless
search of both bags, discovering cocaine. Based on their observation of G arzon’s
behavior as he left the bus, he was targeted, eventually linked to the two bags and
13
Had Alejandro known those seeking entry were police officers rather than
gas company employees it is unlikely he w ould have opened the door. Alejandro,
supra at 8-9.
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arrested.
Prior to trial Garzon moved to suppress the cocaine. The district court
denied the motion, finding he objectively 14 abandoned his bags by disregarding
the order to remove personal belongings from the bus. W e disagreed. As a
preliminary matter, we concluded the DEA agent’s order for all passengers to
leave the bus w ith their belongings in tow was not law ful. 15 Id. at 1450.
Specifically, we noted the agent did not have a search or arrest warrant and “there
is absolutely nothing in this record to suggest [the agent] had probable cause or
even any articulable suspicion that [the defendant] or any other passenger on the
bus was carrying drugs at the time the order was given.” Id. Further, the order
was directly contrary to the bus driver’s previous instructions to the passengers
that they could leave their personal belongings on the bus during the layover. Id.
Because, on the facts presented, the agent could not legitimately require the
passengers to follow his directive, we concluded it was not unreasonable for the
defendant to peacefully refuse to comply. Id. at 1450-51. And, because it was
not unreasonable for the defendant to disregard the agent’s request, his refusal
14
The district judge found Garzon to have no subjective intent to abandon
his drug laden backpacks, but by objective measure (failing to heed the removal
order) he did abandon them.
15
“W e begin by emphasizing that the government did not argue, and the
court did not find, that [the agent’s] order for all passengers to disembark the bus
with all their personal belongings and to proceed past a drug-sniffing dog w as a
lawful order.” Garzon, 119 F.3d at 1450.
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could not be deemed an abandonment of his property. Id. at 1451.
The issue in Garzon was narrow: “Is it so unreasonable to disregard an
officer’s unlawful order to remove personal belongings from a place where they
are entitled to be kept for the purpose of facilitating a drug search that the act of
refusal constitutes an objective abandonment of the property in question?”
Garzon, 119 F.3d at 1450-51. Consequently, the focus was not on whether the
DEA agent’s request constituted a seizure, but rather on whether the defendant’s
failure to comply, without more, constituted an abandonment of his luggage. 16
W e did not cite to either the M endenhall or Bostick tests or apply any of the
factors outlined in Jones. In fact, we did not even mention the word “seizure.”
Significantly, we did not conclude the request to collect baggage and leave the
bus was a seizure — it could not have been since Garzon did not comply. Had he
complied the court would have focused, as we do here, on whether that request
was a seizure and if so, whether it was justified. 17
16
That the defendant ignored the DEA agent’s order to carry all of his
luggage in his right hand past the drug dog counsels against a finding that the
order constituted a seizure. C alifornia v. Hodari D., 499 U.S. 621, 626 (1991)
(holding a seizure does not occur by a show of authority unless the subject
actually submits to such authority); United States v. Harris, 313 F.3d 1228, 1234
(10th Cir. 2002) (“Ultimately, a seizure requires either the use of physical force
by the police officer or submission by the individual to the police officer’s
assertion of authority. A police officer’s assertion of authority without
submission by the individual does not constitute a seizure.”) (citation omitted).
17
Absent justification for doing so, treating the two bags Garzon left on the
bus as abandoned might be construed as a seizure of those bags. If there was a
seizure in Garzon that was it.
-16-
Garzon obviously felt free “to decline the officers’ requests or otherwise
terminate the encounter.” Bostick, 501 U.S. at 436. Perhaps he was familiar with
Florida v. Royer:
The person approached [by the police], how ever, need not answer any
question put to him; indeed, he may decline to listen to the questions at
all and may go on his way. He may not be detained even m om entarily
without reasonable, objective grounds for doing so; and his refusal to
listen or answer does not, without more, furnish those grounds.
460 U.S. 491, 497-98 (1983) (emphasis added) (citations omitted). Since Garzon
declined the officer’s request and was free to leave, there was no seizure of his
person. Any seizure of the bags left on the bus (if it could be called a seizure)
related only to abandonment.
Compliance with an official request (assuming freedom to ignore the
request or terminate the encounter) is analytically different from a refusal to
comply; blurring the distinction does not serve us well. Had Ojeda-Ramos made
the choice to ignore the request to claim his luggage, Garzon would impact our
seizure analysis as surely as it has our discussion of abandonment (see infra at
19-20). The district court correctly found Dunlap’s order to leave the bus and
claim luggage was not a seizure under the Fourth Amendment. 18
B. Abandonment
18
Given that Office Dunlap’s order to leave the bus and claim luggage was
not a seizure, we need not address Ojeda-Ramos’s argument that the seizure was
illegal because Dunlap lacked individualized suspicion that he, as opposed to one
of the other twenty-four passengers, was connected to the bag.
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Ojeda-Ramos acknowledges that abandoned property may be seized and
searched without a warrant. However, he claims abandonment must be voluntary
and is not if it results from a Fourth Amendment violation or an unlawful police
order. He says he was unlawfully seized by Dunlap’s order to leave the bus and
claim luggage, thus his express disclaimers of interest in the suitcase were not
voluntary. Possible Fourth Amendment violations aside, Ojeda-Ramos contends
he did not voluntarily abandon the suitcase because he did not understand
English, placing him at the mercy of the officers and unable to assert his rights.
He further asserts his actions were inconsistent with abandonment. He never
physically abandoned the suitcase and in fact, when Dunlap asked him to proceed
to the parcel storage room, he brought the suitcase with him. 19
“The test for abandonment is whether the defendant has retained any
reasonable expectation of privacy in the property.” United States v. Hernandez, 7
F.3d 944, 947 (10th Cir. 1993). “Abandonment is akin to the issue of standing
because a defendant lacks standing to complain of an illegal search or seizure of
property which has been abandoned.” Garzon, 119 F.3d at 1449. The inquiry is
one of intent and subsumes both a subjective and objective component. Id.; see
also Hernandez, 7 F.3d at 947. A district court’s findings of subjective intent are
findings of fact reviewed for clear error. Garzon, 119 F.3d at 1149. W hether the
defendant objectively abandoned his property (i.e., whether he retained an
19
See supra note 6.
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objectively reasonable expectation of privacy in the property) is a question of law
reviewed de novo. Id.
A defendant’s abandonment of property must be voluntary. Hernandez, 7
F.3d at 947. It is not voluntary if it results from a violation of the Fourth
Amendment. Id. “However, police pursuit or investigation at the time of
abandonment of property . . . does not of itself render abandonment involuntary.”
Id.
W hen Dunlap asked Ojeda-Ramos whether the blue suitcase was his, he
expressly disclaimed any interest it. Therefore, Ojeda-Ramos abandoned the blue
suitcase. See United States v. Denny, 441 F.3d 1220, 1227-28 (10th Cir. 2006)
(concluding an express disclaimer of ownership in response to a lawful police
inquiry constitutes abandonment). That Ojeda-Ramos may have voluntarily
carried the suitcase to the parcel storage room (i.e., not pursuant to an order from
Dunlap) does not affect this conclusion. After Ojeda-Ramos had carried the
suitcase to the parcel storage room, he again expressly and unequivocally
disclaimed any interest in it. Dunlap was entitled to take Ojeda-Ramos at his
word. 20 Id. at 1228.
O jeda-R amos’s abandonment of the suitcase was voluntary. As we
concluded above, Ojeda-Ramos was not seized by Dunlap’s order to leave the bus
20
“By contrast, Garzon never verbally disclaimed an interest in his
backpacks. . . .” Garzon, 119 F.3d at 1452.
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and claim luggage. M oreover, as the district court correctly concluded and
Ojeda-Ramos does not contest, Dunlap’s seizure of Ojeda-Ramos when he asked
Ojeda-Ramos to follow him to the parcel storage room was reasonable. Thus, his
abandonment of the suitcase was not the result of a Fourth Amendment violation.
Ojeda-Ramos’s claim that any abandonment of the suitcase was rendered
involuntary due to the fact he could not speak English, which in turn placed him
at the mercy of the officers and unable to assert his rights, is unavailing because it
is contradicted by the evidence. W hen Dunlap asked Ojeda-Ramos in English for
his ticket and identification, Ojeda-Ramos responded by handing Dunlap his
ticket and identification. Ojeda-Ramos answ ered several of Dunlap’s questions in
English. According to Dunlap, when Ojeda-Ramos responded to his questions in
English, Dunlap was able to understand it. Indeed, Dunlap testified Ojeda-
Ramos’s responses w ere “perfectly clear.” (R. Vol. IV at 64.)
C. W arrantless Search
Ojeda-Ramos claims the warrantless search of his suitcase violated the
Fourth Amendment. He contends there were no exigent circumstances mandating
an exception to the warrant requirement. He also argues that because the suitcase
was locked, he had no access to it so as to invoke the search incident to arrest
doctrine. Because Dunlap had possession of the bag, Ojeda-Ramos claims he
could have obtained a routine warrant and his failure to do so is fatal.
W e easily dispose of this argument. “A warrantless search and seizure of
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abandoned property is not unreasonable under the Fourth Amendment.”
Hernandez, 7 F.3d at 947.
A FFIR ME D.
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