dissenting:
I must respectfully dissent. I think the court has announced a standard for review of the issue of abandonment not previously adopted in this circuit. Relying upon United States v. Austin, 66 F.3d 1115, 1118-19 (10th Cir.1995), the majority hypothesizes there is an objective component of abandonment that we must review de novo. I do not find support for that bifurcation of the issue in Austin.
Indeed, in Austin, the court relied only upon the oft-reiterated principle that abandonment is an issue of fact that is reviewed for clear error. Id. at 1117. Moreover, the court’s analysis of the reasonability of the search in Austin proceeded from that premise. As that analysis developed, the court viewed the defendant’s privacy expectations which were necessary to support his Fourth Amendment claim, and reminded such a claim cannot be asserted when abandoned property is searched. From that point, the court reviewed the facts of the case and determined though the defendant could assert a subjective belief that he had retained his expectation of privacy, that belief was not objectively reasonable. Yet, in no way did the court retreat from the premise that the district court’s finding of abandonment is a question of fact reviewed for clear error. With all due respect, I believe the majority takes the rationale of Austin a step beyond which the case really goes, and I cannot join that effort.
Moreover, because a district court’s finding of abandonment can only be overturned for clear error, the very ambiguity of Mr. Garzon’s acts is the key to resolution of the issue on appeal. Either Mr. Garzón chose to ignore Agent Olaehea’s directive to remove his baggage from the bus because he believed he had a right to do so, or he abandoned it. Those are the only two choices faced by the district court, and “[w]here there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). In this case, I believe the district court correctly found Mr. Garzón manifested an objective intent to abandon the two bags he left on the bus.
Having heard Agent Olachea’s representation that passengers were going to pass their hand luggage past a “narcotics detection dog,” Mr. Garzón took an innocent backpack with him and left two drug filled packs behind. Athough it is true, as noted by the court, that Agent Olachea’s directive lacked validity, Mr. Garzón obviously knew about the possibility of detection by the dog and left drug filled luggage on the bus, taking with him only that which presented no threat to his freedom. To me, this act begets only one inference: that he intended to distance himself from the potentially incriminating backpacks in hopes their contents would not be tied to him.
Athough the agents could have made Mr. Garzon’s intent even more clear by asking him about the ownership of the bags, I do not view their failure critical. Given the state of the evidence, the district court had only two inferences to draw: either Mr. Garzón left the bags in the bus because he thought he could do so, or he abandoned them. The district court chose to draw the second inference, and evidence supports the choice. We cannot eschew that result. I would affirm the judgment.