### The Honorable John B. Jon es, United States District Judge for

the District of South Dakota, sitting by designation. -1- ___________ No. 96-3358

___________ United States of America, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Calvin Porter, * * Appellee. *

___________ Submitted: January 15, 1997 Filed: February 21, 1997

___________ Before BOWMAN and MURPHY, Circuit Judges, and JONES, District Judge
. 1

___________ MURPHY, Circuit Judge.
CalvinPorter was indicted on charges of conspiracy to distribut e cocaine and possession with the intent to distribute cocaine. The distric t court suppressed evidence of cocaine found in a bag with his name on it, and the United States appeals. We reverse. Porter ha d been travelling by bus from San Bernadino, California to St. Louis, Missouri. When the bus stopped at the station in Springfield, Missouri , Carl Hicks boarded the bus, identified himself as a dru g enforcement agent, an d questioned passengers about their destinations and tickets. During this questioning, Hicks learned that the first name o n Porter's one-way

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ticket to St. Louis was misspelled as "Kelvin" and that Porter did not kno w the add ress or phone number of the person he was visiting. Hicks aske d Porter whe ther he had checked any bags. Porter told him that he ha d checkedone bag, and he agreed to get off the bus and identify it in the luggage compartment. Hicks testified that he no ticed that Porter appeared
nervous when questioned about his luggage. After identifying the bag , Porter gave Hicks per mission to search it. Hicks then noticed that there
was a ticket on the bag that said "Kelvin Porter" and "1 of 2." Hick s asked Porter if he ha d checked any other bags, and Porter said he had not and got back on the bus.

After Hicks found a second bag in the luggage compartment with a ticket that said "Kel vin Porter" and "2 of 2," he asked Porter to get off the bus again. Hicks then asked Porter if the s econd bag belonged to him. Porter replied that "it did not" and that "he had never seen it before." Hicks asked Porter for permission to search the bag, and Porter told him he "could go ahead and search the bag, it was not his and he had never see n it before." Inside the bag, Hicks found a box c ontaining two kilograms of cocaine.

After Por ter was indicted, he moved to suppress evidence of th e cocaine seized from the second bag and of post-a rrest statements he claims
wer e made before he was read his Miranda rights. At the close of th e government's evidence at the suppression hearing, Porter asked the court to rule on his motion to suppress the cocaine. The district court ruled fro mthe bench, excluding the drug evidence and Porter's statements an d actions after the search. The court reasoned it was unreasonable to searc h the secon d bag without a warrant after Porter denied it belonged to hi m bec ause it could have been owned by someone else and that Porter' s statements after the search should be excluded as "results

### No arguments have been pr esented in this appeal on the merits

of Porter's motion to suppress statements, and the district court did not reach any issue unrelated to the search. -3- of a poisonous tree." 2
The government argues on appeal that because Porter had abandon ed the secondbag, the district court erred in granting the motion to suppress. Porter responds that the evidence was properly suppressed because hi s disclai mer of ownership of the bag did not constitute abandonment an d because he was illegally seized when Hicks asked him to get off the bus. The district court's decision to grant the motion to suppress is reviewed for clear error. United States v. Meirovitz , 918 F.2d 1376, 1379 (8th Cir
. 1990), cert. denied , 502 U.S. 829 (1991).

The warrantless search of abandoned property does not violate th e fourth amendment. Abel v. United States , 362 U. S. 217, 241 (1960). Here, Porter told Hicks that the second bag did not be long to him and that Hicks
cou ldgo ahead and search the bag because it was not his. By denyin g ownership of the bag and telling Hicks to search the bag, Porter abandoned it. See United State s v. Thompkins , 998 F.2d 629, 632-33 (8th Cir. 1993) (denying ownership of bag and telling officers to go ahead and search it constitutes abandonment). Furthermore, Porter's contention that the bag could have belonged t o a third party and that the cocaine evidence should therefore be suppressed is without merit because fourth amendment rights are personal and cann ot be enforced vicariously. United States v. Kiser , 948 F. 2d 418, 424 (8th Cir. 1991), cert. denied , 503 U.S. 983 (1992 ) (citations omitted). The district court thus er red in concluding that the cocaine should be suppressed.

Porter also argues that any error on the abandonment issue wa s harmless because he had been illegally seized wh en Hicks asked him to step off the bus. Porter argues that the district court erred

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in finding that his n ervousness and the misspelled ticket were sufficient for Hi cks to form reasonable suspicion. Determinations of reasonabl e suspi cionare reviewed de novo while findings of fact are reviewed fo r clear error. Ornelas v. United States , 116 S. Ct. 1657, 1663 (1996).

The totality of the circumstances are to be considered whe n deter mining whether reasonable suspicion existed. United States v
. Sokolow , 490 U.S. 1, 8-9 (1989). During the suppression hearing, Hick s testified that Porter appeared nervous in his speech when asked about his luggage , had a one-way ticket to St. Louis, did not know the address o r telephone number of t he person he was visiting in St. Louis, had a ticket withhis first name misspelled which matched the misspelling of his name on the two bags, and denied having any luggage o ther than the first bag he identified. Based onthis evidence, the district court's conclusion that Hicks had reasonable suspicion when asking Porter to step off the bus to identifyhis luggage was not erroneous, and the search of the second bag did not result from an unlawful seizure.
The order suppressing the cocaine evidence is therefore reverse d, and the case is remanded for further proceedings.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.