[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 14, 2001
No. 00-14689 THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 99-06244 CR-WDF
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
TERRY COFIELD,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(November 14, 2001)
Before BARKETT and HULL, Circuit Judges, and LIMBAUGH*, District Judge.
PER CURIAM:
*
Honorable Stephen N. Limbaugh, U.S. District Judge for the Eastern District of
Missouri, sitting by designation.
The United States appeals an order granting Terry Cofield’s motion to
suppress evidence in his criminal case for possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1). United States v. Cofield, 108 F.
Supp. 2d 1374 (S.D. Fla. 2000). This case involves a warrantless search of
Cofield’s luggage at a train station. Whether or not that search violates the Fourth
Amendment, and thus whether suppression is required, depends upon whether one
believes the version of the events advanced by the government or by Cofield. The
government contends that Cofield abandoned his luggage at the train station and
thus the search of the luggage was constitutional, while Cofield asserts that the
bags were taken from him and searched without his consent.
The district court referred Cofield’s motion to suppress to a magistrate judge
in order to hear testimony, make credibility determinations, and submit a report
and recommendation. At this hearing, the government offered the testimony of
two of the law enforcement officers who stopped Cofield at the train station, while
Cofield and his girlfriend, who was also present at the train station, testified on
Cofield’s behalf. After hearing the testimony of all of the witnesses, the magistrate
judge found the testimony of the government’s witnesses to be “fully credible”
based upon “each officer’s demeanor and manner of testifying, as well as the
consistency and logic of their rendition of the events.” Conversely, the magistrate
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judge found Cofield’s testimony to be “internally inconsistent and somewhat at
odds with the testimony of [his girlfriend].” Accordingly, the magistrate judge
recommended that the district court deny the motion to suppress.
The district court, however, expressly rejected the magistrate judge’s
credibility findings without convening a second evidentiary hearing and granted
Cofield’s motion finding (1) that Cofield’s testimony was credible based upon
Cofield’s prior consistent statements, and (2) in the alternative, that even crediting
the government’s version of the facts as true, the government had failed to show as
a matter of law that Cofield abandoned his luggage. This interlocutory appeal
followed.
On appeal, the government argues that the district court committed
reversible error by rejecting the magistrate judge’s express credibility findings
without first rehearing the disputed testimony, and that the testimony of the
government witnesses, if credited as true, demonstrates that Cofield abandoned his
luggage. We consider each argument in turn1.
1. Rejection of the magistrate judge’s credibility findings
Whether the district court may wholly reject a magistrate judge’s credibility
1
The other arguments raised by the government are without merit and thus are not
discussed.
3
findings without rehearing witness testimony is an issue of law which we review
de novo. See, e.g., United States v. Register, 182 F.3d 820, 841 (11th Cir. 1999).
In United States v. Raddatz, 447 U.S. 667 (1980), the Supreme Court held
that a district court is not required to rehear witness testimony when accepting a
magistrate judge’s credibility findings. See id. at 675-76. The Court then stated,
“we assume it is unlikely that a district court would reject a magistrate’s proposed
findings on credibility when those findings are dispositive and substitute the
judge’s own appraisal; to do so without seeing and hearing the witness or witnesses
whose credibility is in question could well give rise to serious questions which we
do not reach.” Id. at 681 n.7 (emphasis in original). Addressing this unreached
question, this Court has held that generally a district court must rehear the disputed
testimony before rejecting a magistrate judge’s credibility determinations. Louis v.
Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980)2; see also Cullen v. United States,
194 F.3d 401, 406 (2d Cir. 1999); Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995).
In United States v. Marshall, 609 F.2d 152 (5th Cir. 1980), we held that this
general rule is subject to a small exception in the “rare case” where “there . . . [is]
found in the transcript an articulable basis for rejecting the magistrate’s original
2
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.
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resolution of credibility and that basis . . . [is] articulated by the district judge.” Id.
at 155. This is not the “rare case” discussed in Marshall, as the transcript here
provides no basis to reject the magistrate judge’s credibility findings. Thus, the
district court erred when it substituted its credibility determinations for those of the
magistrate judge without first rehearing the disputed testimony.
2. The law of abandonment
Because a district court’s finding regarding abandonment involves the
resolution of factual disputes, we ordinarily review abandonment determinations
for clear error. See United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994).
In this case, however, because the district court found that, even accepting the
government’s evidence as true, the government had not shown, as a matter of law,
that Cofield abandoned his luggage, we review the district court’s legal
determination de novo. See Register, 182 F.3d at 841.
Generally, an individual enjoys a reasonable expectation of privacy in
personal luggage. See United States v. McKennon, 814 F.2d 1539, 1544 (11th Cir.
1987) (citing United States v. Place, 462 U.S. 696, 707 (1983)). However, an
individual who abandons or denies ownership of personal property may not contest
the constitutionality of its subsequent acquisition by the police. See Ramos, 12
F.3d at 1023; United States v. Hawkins, 681 F.2d 1343, 1345 (11th Cir. 1982).
5
In determining whether there has been abandonment, the “‘critical inquiry is
whether the person prejudiced by the search . . . voluntarily discarded, left behind,
or otherwise relinquished his interest in the property in question so that he could no
longer retain a reasonable expectation of privacy with regard to it at the time of the
search.’” Ramos, 12 F.3d at 1022 (quoting United States v. Winchester, 916 F.2d
601, 603 (11th Cir. 1990)). Whether abandonment has occurred is a question of
intent that may be inferred from acts, words and “other objective facts.” United
States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir. 1982). While the individual
whose property was searched bears the burden of proving a legitimate expectation
of privacy in the items searched, the burden of proving abandonment is on the
government. See Ramos, 12 F.3d at 1023.
According to the government’s witnesses, Cofield was holding two bags at
the time the officers initially asked if he would consent to a search. Cofield
refused consent, stating that a narcotics-detecting dog had already “searched” his
bags. The officers then explained the dog sniff procedure and again asked for
permission to search his bags. At this point, Cofield removed the bags from his
shoulders and put them on the ground, denied that the bags belonged to him, and
attempted to walk away from the area. To confirm Cofield’s denial of ownership,
the officers asked Cofield if the bags belonged to him and Cofield responded, “No,
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those are not my bags.” The officers then made a loud announcement asking
whether the bags belonged to anyone. No one, including Cofield, claimed
ownership of the bags. The officers then searched the bags and found 1,411 grams
of cocaine base hidden inside one of the bags.
Contrary to the district court’s conclusion, if these facts are taken as true, it
is clear that Cofield abandoned the bags and the subsequent search was
constitutional. Cofield was not in custody when he placed the bags on the ground,
nor were there any other conditions that would have led Cofield to believe that he
was not free to refuse consent.3 See, e.g., United States v. Smith, 201 F.3d 1317,
1321-22 (11th Cir. 2000). Moreover, if the government’s version of the facts is
believed, Cofield’s decision to abandon the bags did not result from police
3
In finding that the government’s evidence, taken as true, failed to demonstrate
abandonment, the district court relied upon the Supreme Court’s decision in Smith v. Ohio, 494
U.S. 541 (1990). Smith, however, is inapposite. In Smith, a defendant carrying a brown paper
bag was approached by two plainclothes officers. One of the officers, without identifying
himself, attempted to stop and question the defendant. The defendant did not respond and
continued walking. After the officer identified himself the defendant threw the bag he was
carrying onto the hood of his car. The officers questioned the defendant as to the contents of the
bag but he did not respond and instead attempted to protect the bag. The officer then pushed the
defendant’s hand away and opened the bag over the defendant’s objections. The drug
paraphernalia discovered within led to the defendant’s eventual conviction. The Supreme Court
reversed the conviction noting that “a citizen who attempts to protect his private property from
inspection after throwing it on a car to respond to a police officer’s inquiry clearly has not
abandoned that property.” Id. at 543-44. Here, unlike the defendant in Smith, Cofield denied
ownership of his luggage and, rather than attempting to protect the contents of the bag, placed
them on the ground and walked away. Thus, we conclude that the district court erred in
determining that the government’s evidence, if taken as true, failed to demonstrate that Cofield
abandoned his bags.
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misconduct. See Pirolli, 673 F.2d at 1204 (stating abandonment is involuntary
when precipitated by police misconduct).
For the foregoing reasons, the district court’s order granting Cofield’s
motion to suppress is vacated and remanded for further proceedings consistent
herewith.4
VACATED AND REMANDED
4
In Footnote 1 of its opinion, the district court took judicial notice of a report by a
nonprofit organization and suggested that the decision to search Cofield’s luggage may have
been based on a racial profile. The parties, however, did not raise the issue of racial profiling in
Cofield’s arrest, and did not reference this report in the district court. Also, a thorough review of
the record and the transcripts of the hearing before the magistrate judge reveals no specific
evidence supporting this inference. As such, it was an abuse of discretion to rely on the report
as it had no relevance to the proceedings. The district court erred in judicially-noticing the
report, and judicially-noticing facts about an issue not raised by the parties or supported by the
evidence, and assigning weight to those facts in its credibility determinations. Because this
report had no relevance in this case, we do not reach the final issue of whether this report could
even be the proper subject of judicial notice under Fed. R. Evid. 201.
8