US v. Florez

• Decision Date: 17 October 1994
• Docket Number: No. CR 94-0222 MV.,CR 94-0222 MV.
• Citation: 871 F. Supp. 1411
• Parties: UNITED STATES of America, Plaintiff, v. Carlos FLOREZ, Defendant.
• Court: U.S. District Court — District of New Mexico

871 F. Supp. 1411

UNITED STATES of America, Plaintiff, v. Carlos FLOREZ, Defendant.

No. CR 94-0222 MV.

United States District Court, D. New Mexico.

October 17, 1994.

COPYRIGHT MATERIAL OMITTED

David Williams, Albuquerque, NM, for plaintiff.

Gary Nelson, Nancy Hollander, Albuquerque, NM, for defendant.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER is before the Court on Defendant's Motion to Suppress Physical Evidence, filed May 4, 1994, and Motion to Suppress Statements, filed May 19, 1994. The Court has reviewed the briefs submitted by counsel, and heard oral arguments on July 1, 1994.

At the motions hearing, the United States represented to the Court that the statements which were the subject of the Defendant's Motion to Suppress Statements, would not be used by the government at trial; therefore, that Motion was not argued and is deemed moot.

FACTS

On March 2, 1994, narcotics agents boarded an eastbound Amtrac train, at the Albuquerque train station, en route from California to New York.

Agent Samuel Michael Candelaria, an Albuquerque Police Officer assigned to the Drug Enforcement Administration Task Force, was patrolling the train station and boarded the two-level 413 coach car and saw two large, hard-sided Goldenman suitcases, one black and one maroon, on the lower level of the car, in the common luggage area.¹ He apparently became suspicious of the two suitcases and made a request to have a certified narcotics canine examine all the luggage stored in the common luggage area of the 413 coach car.²

Officer Robert Lujan, a detective with the Albuquerque Police Department's Drug Interdiction Unit, and his canine named "Bobo," a Belgium Malanoid, were called to the 413 coach car by Agent Jeanette Tate, and Bobo alerted — first to the maroon suitcase and then to the black suitcase, indicating the odor of a controlled substance. A piece of tape with a name and address printed on it was attached to each suitcase. Agents Candelaria and Tate claim they were unable to make out the name printed on the tape. They then allegedly made at least three announcements over the train's intercom system, describing the suitcases and asking the owner(s) to come forward to the luggage area.³ When no one responded, the luggage was seized from the train, taken to the Albuquerque District Drug Enforcement Agency (DEA) office, and opened.

Approximately 32.6 kilograms of cocaine were found stored in the two suitcases. Interestingly, once the luggage was searched and the drugs were discovered, the agents were able to read the name "C. Florez" printed on the tape attached to the suitcases. An investigation was initiated to find "C. Florez." The agents discovered that a "Carlos Florez" had purchased a train ticket in Los Angeles on March 1, 1994, traveling through Albuquerque to New York Penn Station. The agents attempted to intercept "C. Florez" at a train stop in Las Vegas, New Mexico, after receiving a description of him and his travel companion from the travel agency which sold him the tickets. However, "C. Florez" was not located at that stop. It was not until the train reached a stop in La Junta, Colorado, and Defendant inquired with train officials about his missing luggage, that he was arrested.

Defendant asserts that the officers violated his Fourth Amendment rights in either of two ways: (1) they lacked probable cause to make a warrantless search of his luggage; or (2) they searched his suitcases in the absence of a warrant or any exception to the warrant requirement.

The government argues that the Defendant does not have standing to challenge the search because he abandoned his suitcases. Furthermore, even if the suitcases were not abandoned, a search warrant was unnecessary because the agents had probable cause and the following exceptions to the warrant requirement applied: (1) exigent circumstances; (2) an inventory search; and (3) the plain view doctrine.

ANALYSIS

The Fourth Amendment protects individuals and their property from unreasonable searches and seizures by the government. United States v. Ibarra, 955 F.2d 1405, 1408 (10th Cir.1992) (citing United States v. Place, 462 U.S. 696, 700, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983)). When a search and seizure is challenged as violative of the Fourth Amendment, the government bears the burden to prove its validity. Id.

Defendant Florez argues that the government lacked probable cause to search his luggage. The government argues that Defendant Florez forfeited his right to challenge the search of his suitcases because he abandoned them.

ABANDONMENT

When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had. United States v. Jones, 707 F.2d 1169, 1171 (10th Cir.) cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983). The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. Id. at 1172. This determination is made by objective standards. Id. An expectation of privacy is a question of intent which may be inferred from words, acts, and other objective facts. Id.

In Jones, the defendant was found to have abandoned a satchel which police saw him carrying and later found lying on the ground near a building where the defendant was discovered hiding, after he ran from police. The Jones court found that the defendant's words and actions manifested his clear intent to relinquish his expectation of privacy and to abandon the satchel. 707 F.2d at 1172. He had denied knowing anything about the satchel when first apprehended by the police and again denied owning it once it was found on the ground. Id. Further, the court determined the defendant abandoned any privacy interests he may have had in the satchel by leaving it lying on the ground where he risked losing it forever. Id. at 1172-73.

Here, Defendant Florez had identified each piece of luggage with his name and address printed on a piece of tape attached near the handle.⁴ Defendant never denied owning the luggage. In fact, when Defendant discovered his luggage missing, he inquired about it at the train station in La Junta, Colorado. Defendant's actions of identifying his luggage and searching for it, once he discovered it was missing, viewed objectively, negate any conclusion that he voluntarily relinquished his expectation of privacy in the luggage and abandoned it.

The government, relies on United States v. Hernandez, 7 F.3d 944 (10th Cir.1993), where this circuit upheld a decision by District Judge James Parker that a warrantless search of a backpack was proper, after determining it was abandoned. Hernandez is distinguishable in several respects.

The defendant in Hernandez was traveling on a bus that was sent to a secondary inspection area at the permanent border inspection area near Truth or Consequences. Id. at 945. Two border patrol agents entered the bus and noticed a blue backpack stored above an empty seat and inquired about its ownership. When no one seated nearby claimed ownership, the agent asked in a loud voice, if it belonged to anyone, while pointing towards the backpack. Id. He also made an effort to scan the entire bus and make eye contact with all the passengers. Id. When no one responded, the agent picked up the backpack, held it in the air, and once more asked who owned it and received no reply. The bag was then taken off the bus and subjected to a dog sniff. Id. When the dog alerted, the bag was opened and cocaine was found. An agent returned to the bus to make another effort at determining who owned the bag and a passenger finally identified the defendant as its owner. The defendant was taken off the bus where he again denied ownership. Id. By repeatedly failing to acknowledge ownership and by distancing himself from the backpack, the court determined the defendant lacked any expectation of privacy in it, and thereby abandoned it. Id.

The Hernandez court determined that the fact that the defendant chose to sit approximately seven or eight rows away, on the opposite side of the aisle from where he placed his backpack, indicated his desire to distance himself from it. Id. at 947. The court pointed out that the bus was not crowded and, therefore, the defendant was not required to place the backpack several rows away from where he was sitting. Id. The government misconstrues the reasoning in Hernandez and contends that by failing to respond to the announcements, Defendant Florez, like the defendant in Hernandez, chose to distance himself from his luggage and voluntarily abandon it. Moreover, this argument is not supported in the record.

First, the government incorrectly argues that like the defendant in Hernandez, Defendant Florez elected to distance himself from the luggage by failing to respond to the announcements. The Hernandez court, in finding the defendant elected to distance himself from his backpack, was referring to the fact that he sat on the opposite aisle, several seats away from where he placed his backpack on the bus.

Defendant Florez was traveling on a train where most, if not all, of the passengers' luggage was stored in a common luggage compartment, consisting solely of luggage. In the luggage cars, the luggage was stored away from all passengers, not just from Defendant Florez. By placing his luggage in the common luggage compartment on coach car 413, along with other passengers' luggage, it can hardly be said that Defendant Florez purposefully sought to "distance" himself from his luggage. This was unlike the defendant in Hernandez, who was riding a bus with overhead storage located above all passenger seats, and who chose to place his backpack in one spot and sit several rows away from it.

Furthermore, the government did not establish whether Defendant Florez even heard the announcements. The record lacks any information about whether the broadcasts were transmitted throughout the entire train or were limited to...