U.S. v. Garzon, 96-1197

• Decision Date: 18 July 1997
• Docket Number: No. 96-1197,96-1197
• Citation: 119 F.3d 1446
• Parties: 97 CJ C.A.R. 1237 UNITED STATES of America, Plaintiff-Appellee, v. Carlos Julio GARZON, a/k/a Carlos Juliio Garzon-Daza, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1446

119 F.3d 1446

97 CJ C.A.R. 1237

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Julio GARZON, a/k/a Carlos Juliio Garzon-Daza Defendant-Appellant.

No. 96-1197.

United States Court of Appeals Tenth Circuit.

July 18, 1997.

Virginia L. Grady, Assistant Federal Public Defender, Denver, CO (Michael G. Katz, Federal Public Defender, Denver, CO, with her on the briefs), Defendant-Appellant.

James C. Murphy, Assistant United States Attorney, Denver, CO (Henry L. Solano, United States Attorney, Denver, CO, with him on the brief), for Plaintiff-Appellee.

Before PORFILIO, EBEL, and HENRY, Circuit Judges.

EBEL, Circuit Judge.

During a warrantless search of Defendant-Appellant Carlos Julio Garzon's backpacks, which had been left in the overhead storage compartment of a Greyhound bus during a layover at the downtown Denver, Colorado bus terminal, law enforcement officers discovered approximately four kilograms of cocaine. Garzon was indicted for possession with intent to distribute cocaine, and the aiding and abetting thereof. Garzon moved to suppress the cocaine, claiming it was the product of an unconstitutional search of his backpacks. The United States opposed the motion, arguing that Garzon abandoned his backpacks when he left the backpacks on the bus during the layover despite a law enforcement officer's instructions to all passengers to leave the bus and to take all carry-on items with them past a trained narcotics detection dog. The district court ruled that Garzon had abandoned his backpacks when he left his backpacks on the bus, and accordingly denied Garzon's motion. The district court held that its ruling was controlled by our opinion in United States v. Hernandez, 7 F.3d 944 (10th Cir.1993). Garzon then entered a conditional guilty plea pursuant to Fed.R.Crim.P. 11(a)(2), and now appeals. We have jurisdiction under 28 U.S.C. § 1291. We reverse.

BACKGROUND

On August 22, 1995, Defendant-Appellant Carlos Julio Garzon was a passenger on Greyhound Lines Route 2192, traveling eastbound Route 2192 was at this time the subject of a drug interdiction effort coordinated by the Drug Enforcement Administration ("DEA") and Denver police. Accordingly, when the bus arrived in Denver at approximately 1:15 p.m, it was met by DEA agents Charlie Olachea and Vinnie Sanchez, along with Denver Police officers David Kechter and Jerry Snow and a trained narcotics detection dog, Sintha. Agent Olachea boarded the bus and, after welcoming the passengers to Denver, stated that Denver police were conducting drug interdiction activities at the terminal. Olachea informed the passengers that a trained narcotics detection dog was waiting outside the bus and said: "I would appreciate it if you would hold your carry-on luggage in your right hand as you walk past the narcotics-trained dog." ¹ Olachea then told the passengers that all carry-on luggage would need to be removed so that the bus could be "cleared" before going on to Chicago. Several passengers inquired whether they were required to remove their baggage from the bus, and Olachea responded via the intercom that they were so required. All of the passengers then left the bus. As he left the bus, Garzon carried a blue backpack. Officer Kechter noted that Garzon held his bag high on his left side, away from the dog; this made Kechter suspicious, and he thus asked another officer to keep an eye on Garzon.

from Los Angeles. The bus was scheduled to stop in Denver for a layover before traveling on to Chicago, where Garzon was to transfer to a Cleveland-bound bus. Before the bus arrived at the Denver terminal, the driver informed the passengers that ongoing passengers would be permitted to leave their carry-on luggage on the bus during the layover.

After all the passengers had cleared the bus, Olachea observed two backpacks that had been left together in the overhead luggage compartment near the middle of the bus. The backpacks had no identifying tags or labels. Olachea removed the bags from the bus and asked two passengers who remained near the bus whether the bags belonged to them. Although the two passengers disclaimed ownership, Olachea did not make any further attempt to identify who owned the bags. Instead, he gave the bags to Officer Kechter, who placed the bags on a cart along with the checked luggage, which the officers had removed from a compartment underneath the bus. Officer Kechter then took this cart to another section of the terminal to allow Sintha to examine the luggage for narcotics.

Sintha alerted on the tan backpack, biting and clawing at it in a sufficiently aggressive manner that it came open, spilling out its contents. Kechter then searched both backpacks, although he had not obtained a warrant to do so. In each backpack he found two bricks of cocaine. The tan backpack also contained a t-shirt with a Florida logo on it, as well as a pair of Levi's blue jeans and a pair of shorts, both size 33. The black backpack contained a t-shirt with a Levi's logo on it.

While Kechter was searching the backpacks, Sanchez and Olachea looked for Garzon inside the terminal because of Garzon's suspicious behavior upon leaving the bus. Upon finding Garzon and his female traveling companion, the agents asked them for their tickets. Garzon produced a ticket in the name of "Jose Delgado," and explained that a friend had purchased the ticket for him. He then produced a Florida driver's license with his name on it. Garzon's companion produced a ticket in the name of "B. Bigoa," and a New Jersey driver's license in the name of "Beatrice Bigoa." Both tickets were one-way fares to Cleveland, Ohio that had been purchased in Los Angeles, with cash.

During this encounter, Sanchez and Olachea also conducted a consensual search of the blue backpack that Garzon had carried off the bus. This search did not uncover any contraband. The agents did not at this time ask Garzon whether he had left any baggage on the bus, nor did they ask Garzon any After their encounter with Garzon and Bigoa, Agents Sanchez and Olachea rendezvoused with Officer Kechter, who informed them that he had found cocaine in the backpacks. Sanchez and Olachea then contacted Garzon and Bigoa once again. Olachea asked Garzon for permission to look at the shorts he was wearing to determine their size. Garzon agreed, and Olachea determined that the shorts were size 33. Garzon then consented to another search of his blue backpack. No contraband was discovered, although the agents noted that, in addition to the baseball cap previously discovered, the bag also contained a t-shirt bearing a Levi's logo. As before, Garzon was never asked if the two backpacks left on the bus belonged to him. During further questioning, the officers concluded that "things just didn't seem to add up." Garzon and Bigoa were then arrested. Bigoa was later released and no charges were filed against her.

other questions. However, they did note that he was wearing a blue baseball cap with a Levi's logo on it.

The cocaine was taken to the Aurora Police Department laboratory, where it was determined that each brick weighed approximately one kilogram. Additionally, Garzon's fingerprints were found on the packaging material that had covered the cocaine. Based on this information, Garzon was indicted for possession with intent to distribute cocaine.

Prior to trial, Garzon filed a motion to suppress the cocaine, claiming the warrantless search of his backpacks left on the bus was impermissible under the Fourth Amendment. At the suppression hearing, the district court heard testimony from Agents Olachea and Kechter, as well as from two Greyhound employees who testified that Greyhound passengers are normally permitted to leave their baggage on the bus during stopovers, and are specifically told that before the bus arrives at the terminal. The district court denied the suppression motion from the bench, agreeing with the government that Garzon had abandoned the backpacks when he left them on the bus in violation of Officer Olachea's instruction to remove all carry-on luggage, and thus had no reasonable expectation of privacy in them under the Fourth Amendment. Garzon then pled guilty, reserving his right to appeal the suppression issue pursuant to Fed.R.Crim.P. 11(a)(2).

DISCUSSION

"The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object." United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.1983); United States v. Hernandez, 7 F.3d at 947. 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. Id.

This test of abandonment subsumes both a subjective and an objective component. United States v. Austin, 66 F.3d 1115, 1118-19 (10th Cir.1995), cert. denied. --- U.S. ----, 116 S.Ct. 799, 133 L.Ed.2d 747 (1996). Findings of subjective intent are findings of fact, which we review only under a clearly erroneous standard. However, a determination of whether the defendant retained an objectively reasonable expectation of privacy in the property that society will recognize is a question of law that we review de novo. United States v. Austin, 66 F.3d at 1118-19; United States v. Benitez-Arreguin, 973 F.2d 823, 827 (10th Cir.1992) ("[W]e review de novo a district court's ultimate objective determination whether society would recognize a defendant's subjective expectation of privacy."); United States v. Marchant, 55 F.3d 509, 512 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 260, 133 L.Ed.2d 184 (1995). In this case, the district court made a factual finding that Garzon subjectively did not intend to abandon those backpacks. The court found,

I am sure that in fact Mr. Garzon, if these were his bags, would not--did not consider these abandoned just as Mr. Hernandez in United States v. Hernandez may not have considered his bags to be abandoned. (Tr. at 182-83).

That factual...