U.S. v. Fulani, 03-3835.

• Decision Date: 20 May 2004
• Docket Number: No. 03-3835.,03-3835.
• Citation: 368 F.3d 351
• Parties: UNITED STATES of America, Appellant v. Ibrahim Hamud FULANI.
• Court: U.S. Court of Appeals — Third Circuit

368 F.3d 351

UNITED STATES of America, Appellant v. Ibrahim Hamud FULANI.

No. 03-3835.

United States Court of Appeals, Third Circuit.

Argued April 22, 2004.

Filed May 20, 2004.

Thomas A. Marino, United States Attorney, George J. Rocktashel (argued), Assistant United States Attorney, Williamsport, PA, for Appellant.

James V. Wade, Federal Public Defender, Daniel I. Siegel, Assistant Federal Public Defender, Patrick A. Casey (argued), Assistant Federal Public Defender, Scranton, PA, for Appellee.

Before SCIRICA, Chief Judge, and ROSENN and GREENBERG, Circuit Judges.

GREENBERG, Circuit Judge.

This matter comes on before this court on an interlocutory appeal from an order in the district court entered on August 21, 2003, granting defendant Ibrahim Hamud Fulani's motion to suppress physical evidence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 18 U.S.C. § 3731. We review the district court's decision for clear error as to underlying facts, but exercise plenary review as to conclusions of law. See United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998). For the reasons stated herein, we will reverse the district court's order.

I. BACKGROUND

On February 21, 2002, at approximately 3:15 p.m., Greyhound Lines Bus No. 6466 en route from New York to California made a scheduled stop in Monroe County, Pennsylvania, at the Delaware Water Gap. With the driver's permission, two agents from the Pennsylvania State Attorney General's Bureau of Narcotics Investigation, Ronald Paret and Jeffrey P. Aster, boarded the bus. Both agents were dressed in plain clothes but wore visible badges. They carried concealed weapons under their coats. Agent Paret made a general announcement over the public address system, identifying himself and Agent Aster and stating that their purpose was to investigate drug trafficking. He advised the passengers that their "cooperation was appreciated, but not required."

Next, Agent Paret spoke individually to all 50 passengers on the bus, asking where they were headed, whether they had any luggage, and if they would produce their bus tickets for inspection. All 50 passengers, including Fulani, cooperated with the agents' requests. During the entire duration of the agents' investigation, the bus doors remained open and the aisle remained unobstructed. Thus, passengers were free to go on and off the bus. Fulani at no point during the investigation exited the bus.

Fulani was able to communicate with the agents in English even though his native language is Yoruba.¹ When Agent Paret asked him to produce his bus ticket, he produced a ticket that read "Fulani, Ibrahim." Agent Paret then asked him if he had any luggage, and Fulani pointed to a plastic shopping bag at his feet. Next, Agent Paret asked him if that was his only bag, and Fulani said it was. Agent Paret then specifically asked him if he had any luggage in the overhead rack, and Fulani gave a negative response.

After the agents finished questioning all of the passengers, they identified a suitcase that had been left unclaimed. This bag was located almost directly above Fulani's seat. Agent Aster retrieved it and held it over his head, asking all the passengers if anyone owned it. After 15 to 20 seconds elapsed without a response, Agent Aster removed the bag from the bus. He then noticed a Greyhound tag twisted around the bag's handle. When he flipped the tag over, he saw that the tag had a name on it. He brought the bag back onto the bus and again asked if anyone claimed it. Again, no one claimed the bag.

Agent Aster then removed the bag from the bus and, along with Agent Paret, searched it. Inside the bag they found five plastic bags suspected to contain heroin, a Nigerian passport bearing Fulani's name and photograph, and a receipt for an airline ticket bearing Fulani's name. Agent Paret placed the bag in his car, and the agents reboarded the bus to try to find its owner. First, they spoke with two passengers seated across the aisle from Fulani and examined their bus tickets. Next, Agent Paret requested to see Fulani's bus ticket. When Fulani produced his ticket, the agents arrested him and removed him from the bus.

Subsequently, a grand jury indicted Fulani on a single charge of distribution and possession with intent to distribute in excess of 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). Fulani moved to suppress physical evidence alleging that the search of his bag violated the Fourth Amendment. On June 20, 2003, the district court conducted an evidentiary hearing on the motion and on August 21, 2003, filed a memorandum and order granting Fulani's motion. The United States timely filed a notice of appeal on September 18, 2003.

II. DISCUSSION

A. The Fourth Amendment

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Police officers' requests to search passengers on a bus do not violate the Fourth Amendment so long as "a reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991) (finding error in Florida Supreme Court's per se ruling that every encounter on a bus in which consent from passengers to search their luggage is sought is a seizure). Moreover, police officers conducting a routine, suspicionless drug interdiction need not inform bus passengers that they have the right to refuse consent to searches. See United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 2114, 153 L.Ed.2d 242 (2002).

B. Abandonment

Although a person has a privacy interest in the contents of his personal luggage, see United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983), he forfeits that interest when he abandons his property. See Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960) (an individual has no reasonable expectation of privacy in abandoned property). Abandonment for purposes of the Fourth Amendment differs from abandonment in property law; here the analysis examines the individual's reasonable expectation of privacy, not his property interest in the item. See United States v. Lewis, 921 F.2d 1294, 1302 (D.C.Cir.1990). A court must determine from an objective viewpoint whether property has been abandoned. See United States v. Perkins, 871 F.Supp. 801, 803 (M.D.Pa.1995), aff'd, 91 F.3d 127 (3d Cir.1996) (table); see also United States v. Rem, 984 F.2d 806, 810 (7th Cir.1993). Proof of intent to abandon property must be established by clear and unequivocal evidence. See United States v. Moody, 485 F.2d 531, 534 (3d Cir.1973).

C. Fulani Abandoned His Overhead Bag

Following the Supreme Court's rulings in Bostick and Drayton, police officers may request to search bus passengers, even without notifying them of their right to refuse cooperation, so long as a reasonable person would have felt free to refuse cooperation. In Fulani's case, he was told that he had the right to refuse cooperation, but he nonetheless chose to cooperate. There is no evidence that a reasonable person in his position would not have felt free to refuse cooperation; in fact, the bus doors remained open and the aisle remained unobstructed during the entire investigation.

In choosing to cooperate with Agent Paret's questioning, Fulani told him that he had one plastic bag by his feet and no baggage in the overhead rack. Fulani had other choices. First, he could have said that he owned the overhead bag, thereby requiring the agents to obtain his consent to search it if they desired to do so.² Second, Fulani could have remained silent, and thus have avoided giving the agents a basis to search the bag. Instead, what Fulani did was disclaim ownership of every bag located in the overhead rack, including the one that bore his name on it. In so doing, Fulani abandoned ownership in his bag, effectively waiving his right to bar its search.

Fulani manifested his intent to abandon his overhead bag in a clear and unequivocal way. In addition to his express statement to Agent Paret that none of the baggage in the overhead rack belonged to him, after voluntarily cooperating Fulani implicitly denied ownership of the bag on two occasions when he...