## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 18 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARLOS JULIO GARZON, a/k/a CARLOS JULIIO GARZON-DAZA, Defendant-Appellant. No. 96-1197

Appeal from the United States District Court

for the District of Colorado (D.C. No. 95-CR-315-Z)
Virginia L. Grady, Assistant Federal Public Defende r, Denver, Colorado (Michael G. Katz, Federal Public Defender, Denver, Colorado, with her on the briefs), for Defendant-Appellant. James C. Murphy, Assistant United States Attorney, Denver, Colorado (Henry L. Solano, United States Attorney, Denver, Colorado, w ith him on the brief), for Plaintiff-Appellee.

Before PORFILIO , EBEL , and HENRY , Circuit Judges.

EBEL , Circuit Judge.- 2 -

During a warrantless search of Defendant-Appellant Carlos Julio Garzon’s backpacks, which had been left in the overhead stor age compartment of a Greyhound bus during a layover at the downtown Denv er, Colorado bus terminal, law enforcement officers discovered approximately f our kilograms of cocaine. Garzon was indicted for possession with intent to d istribute cocaine, and the aiding and abetting thereof. Garzon moved to suppr ess the cocaine, claiming it was the product of an unconstitutional search of hi s backpacks. The United States opposed the motion, arguing that Garzon aban doned his backpacks when he left the backpacks on the bus during the layover de spite 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 lef t his backpacks on the bus, and accordingly denied Garzon’s motion. The distri ct court held that its ruling was controlled by our opinion in United States v. H ernandez , 7 F.3d 944 (10th Cir. 1993). Garzon then entered a conditional guil ty plea pursuant to Fed. R. Crim. P. 11(a)(2), and now appeals. We have jurisd iction under 28 U.S.C. §
1291. We reverse.
BACKGROUND On August 22, 1995, Defendant-Appellant Carlos Juli o Garzon was a passenger on Greyhound Lines Route 2192, traveling eastbound from Los1 Olachea admitted that a dog sniff of moving lugga ge for drugs is “not

real reliable.” Hence, the real purpose of the ord er was not to submit the luggage to a dog sniff, but rather to observe how various p assengers react when they are personally forced to comply with this order. So, t his order should be viewed as directed against the passengers rather than just anattempt to make the luggage available for a dog sniff. - 3 - Angeles. The bus was scheduled to stop in Denver f or a layover before traveling on to Chicago, where Garzon was to transfer to a Cl eveland-bound bus. Before the bus arrived at the Denver terminal, the driver informed the passengers that ongoing passengers would be permitted to leave thei r carry-on luggage on the bus during the layover. Route 2192 was at this time the subject of a drug i nterdiction effort coordinated by the Drug Enforcement Administration (“DEA”) and Denver police. Accordingly, when the bus arrived in Denver at appr oximately 1:15 p.m, it was met by DEA agents Charlie Olachea and Vinnie Sanche z, along with Denver Police officers David Kechter and Jerry Snow and a trained narcotics detection dog, Sintha. Agent Olachea boarded the bus and, af ter welcoming the passengers to Denver, stated that Denver police were conductin g drug interdiction activities at the terminal. Olachea informed the passengers t hat 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 handas you walk past the narcotics-trained dog.” 1 Olachea then told the passengers that all carry-o n- 4 -

luggage would need to be removed so that the bus co uld be “cleared” before going on to Chicago. Several passengers inquired w hether they were required to remove their baggage from the bus, and Olachea resp onded 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 no ted 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

. After all the passengers had cleared the bus, Olach ea observed two backpacks that had been left together in the overhe ad luggage compartment near the middle of the bus. The backpacks had no identi fying tags or labels. Olachea removed the bags from the bus and asked two passeng ers who remained near the bus whether the bags belonged to them. Although th e two passengers disclaimed ownership, Olachea did not make any further attemptto identify who owned the bags. Instead, he gave the bags to Officer Kechte r, 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 th en 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 claw ing at it in a sufficiently aggressive manner that it came open, spilling out i ts contents. Kechter then searched both backpacks, although he had not obtain ed a warrant to do so. In- 5 -

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 pai r of Levi’s blue jeans and a pair of shorts, both size 33. The black backpack containe d 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 femal e traveling companion, the agents asked them for their tickets. Garzon produc ed a ticket in the name of “Jose Delgado,” and explained that a friend had pur chased the ticket for him. He then produced a Florida driver’s license with his n ame 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 on e-way fares to Cleveland, Ohio that had been purchased in Los Angeles, with c ash. During this encounter, Sanchez and Olachea also con ducted 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 as k Garzon any other questions. However, they did note that he was wearing a blue b aseball cap with a Levi’s logo on it.- 6 -

After their encounter with Garzon and Bigoa, Agents Sanchez and Olachea rendezvoused with Officer Kechter, who informed the m that he had found cocaine in the backpacks. Sanchez and Olachea then contact ed Garzon and Bigoa once again. Olachea asked Garzon for permission to lookat the shorts he was wearing to determine their size. Garzon agreed, and Olache a determined that the shorts were size 33. Garzon then consented to another sea rch of his blue backpack. No contraband was discovered, although the agents note d that, in addition to the baseball cap previously discovered, the bag also co ntained 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 Bi goa were then arrested. Bigoa was later released and no charges were filed agains t her. The cocaine was taken to the Aurora Police Departme nt laboratory, where it was determined that each brick weighed approximatel y one kilogram. Additionally, Garzon’s fingerprints were found on the packaging material that had covered the cocaine. Based on this information, Ga rzon was indicted for possession with intent to distribute cocaine. Prior to trial, Garzon filed a motion to suppress t he 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- 7 -

from Agents Olachea and Kechter, as well as from tw o Greyhound employees who testified that Greyhound passengers are normally pe rmitted to leave their baggage on the bus during stopovers, and are specifically t old that before the bus arrives at the terminal. The district court denied the suppre ssion motion from the bench, agreeing with the government that Garzon had abando ned the backpacks when he left them on the bus in violation of Officer Olache a’s instruction to remove all carry-on luggage, and thus had no reasonable expect ation of privacy in them under the Fourth Amendment. Garzon then pled guilty, reserving his right to appeal the suppression issue pursuant to Fed. R. Cr im. 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 becaus e a defendant lacks standing to complain of an illegal search or seizure of prop erty 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 . 116 S. Ct. 799 (1996). Findings of subjective in tent are findings of- 8 -

fact, which we review only under a clearly erroneou s 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 determinatio n whether society would recognize a defendant’s subjective expectation of p rivacy.”); United States v. Marchant , 55 F.3d 509, 512 (10th Cir.), cert. denied , 116 S. Ct. 260 (1995). In this case, the district court made a factual findin g that Garzon subjectively did not intend to abandon those backpacks. The court found , I am sure that in fact Mr. Garzon, if these were hi s bags, would not - did not consider these abandoned just as Mr. Hernan dez in United States v. Hernandez may not have considered his bags to be abandoned. (Tr. at 182-83). That factual finding is reviewed under a clearly er roneous standard, and we do not find it to be clearly erroneous. Thus, we accept t he finding that Garzon retained a subjective expectation of privacy in the two backpa cks left on the bus. We turn then to the objective reasonableness compon ent of abandonment. That is the component relied upon by the court in c oncluding there was abandonment here. The court ruled that even though the defendant did not intend to abandon the backpacks, his subjective expectatio n of privacy and ownership in those backpacks was not objectively reasonable because a law enforcement officer- 9 -

had told the passengers on the bus that they had to remove all of their carry-on luggage. The court’s ruling, in that regard is as follows: [T]here is no reasonable expectation of privacy if someone ignores that announcement [the announcement by the police t hat all handbags must be removed so that they can be subjected to a dog sniff for drugs] and leaves their bag on the bus. (Tr. at 18 4-85). As noted above, we review that holding de novo , and it is here that we must disagree with the district court. We begin by emphasizing that the government did notargue, and the court did not find, that Olachea’s order for all passenge rs to disembark the bus with all their personal belongings and to proceed past a dru g-sniffing dog was a lawful order. Olachea had neither a search warrant nor an arrest warrant to authorize his actions. Furthermore, there is absolutely nothing in this record to suggest that Olachea had probable cause or even any articulable suspicion that Garzon or any other passenger on the bus was carrying drugs at th e time the order was given. The layover in Denver cannot be justified as a bord er stop because it occurred nearly a thousand miles from an international borde r. It cannot be justified as an established checkpoint stop because this stop singl ed out just bus #2192 and the passengers on board that bus. It cannot be justifi ed on the basis of safety concerns, as are airport examinations, because this order was directed at passengers on a bus who were neither driving nor ina position to endanger their fellow passengers if they were carrying drugs. Further, Olachea’s order was- 10 -

directly contrary to the advice previously given to the passengers by the bus driver that they could leave their personal belongi ngs on board the bus during the brief layover in Denver before the bus continued on to Chicago. Thus, the order given by Olachea was, pure and simple, an unlawful order. No one has contended otherwise, and on this record we have no doubt thatit should be so characterized. The order to Garzon to remove his personal belongin gs and the subsequent warrantless search of his backpacks was in violatio n of Garzon’s Fourth Amendment rights and the fruits of the search must be suppressed unless Garzon abandoned his backpacks. Second, we emphasize that Garzon did nothing to man ifest objectively an intent to abandon his backpacks that were left on t he bus. Garzon never once denied ownership of those backpacks. Indeed, he di d not even stand silent when asked if anyone claimed them because no such inquiry was ever directed at Garzon or, so far as this record shows, was any suc h inquiry ever uttered within Garzon’s hearing. Further, he never objectively ev idenced an abandonment intent by clear and unequivocal physical acts, such as thr owing them away, giving them to strangers, leaving them unguarded on public prop erty or the like. To the contrary, he left them in a secure overhead interna l luggage rack just as he was told he could by the bus driver. He was going to r eboard that same bus after a brief layover in Denver to continue his journey to Chicago, and he stayed in the2 There is no doubt that Olachea’s request to remov e all luggage and to

parade it past the dog was an order. Indeed, when the mandatory nature of the request was challenged by several of the passengers , Olachea was very clear that they mustremove all of their luggage. The district court f ound that this was a mandatory order, and we do not find that conclusion to be clearly erroneous. If, on the other hand, the statement by Olachea were de emed to be merely precatory, Garzon’s position would be even stronger. In that case, the government would be relying on a consensual encounter, and Garzon’s ref usal to take his backpacks off the bus as requested made it clear that he did not consent to such an encounter. One certainly could not draw an objective inference of abandonment from a person’s failure to follow a precatory request. - 11 - bus terminal during the layover, which manifested h is intent to reboard the bus and to resume possession of his backpacks. Indeed, nothing in this record suggests that he did not have continued access to t he bus during the layover in case he needed to get something out of his backpack s. The onlyact relied upon by the district court to find an o bjective abandonment was Garzon’s failure to obey Olachea’s unlawful order to remove his personal belongings from the bus and to parade them past a drug-sniffing dog. So, the question presented in this case is a stark one: Is it so unreasonable to disregard an officer’s unlawful order to remove per sonal belongings from a place where they are entitled to be kept for the purpose of facilitating a drug search that the act of refusal constitutes an objective abandon ment of the property in question? That is the question the district courtanswered in the affirmative, and which we now answer in the negative. 2- 12 -

In Florida v. Royer , 460 U.S. 491 (1982), the United States Supreme Co urt addressed a situation where a defendant was request ed to take his luggage from an airport concourse to an examination room approximat ely 40 feet away for the purposes of a drug inspection. In that case, unlik e here, the officers had articulable suspicion to approach that particular d efendant because he satisfied a “drug courier profile.” In the examination area, t he defendant “consented” to a request to open his suitcase, at which time drugs w ere discovered. There, like here, the state neglected to get a search warrant f irst. The Court held that this was an illegal search, and it rejected the governme nt’s argument that the “consent” was voluntary because it had been induced by the government’s conduct that was violative of the defendant’s Fourt h Amendment rights. The court observed, The person approached [by the police], however, nee d not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way . . . he may not be detained even momentarily without reasonable, objective grou nds for so doing; and his refusal to listen or answer does not , without more, furnish those grounds . (Emphasis added). Id. at 497-98. In short, a citizen’s peaceful refusal to comply wi th an unlawful order cannot be used to justify the subsequent search. In Florida v. Bostick , 501 U.S. 428 (1991), the Supreme Court addresseda situation where the police boarded a bus and asked permission to search a- 13 -

passenger’s luggage. The court remanded for furthe r findings on the voluntariness of the defendant’s alleged consent, b ut in doing so reiterated, We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective jus tification needed for a detention or seizure. Id. at 437. The law is replete with situations where the factfi nder is precluded from drawing any adverse inferences from the fact that aperson insists upon his or her legal rights. For example, the fact that a defenda nt chooses to exercise his or her Fifth Amendment right to remain silent will not sus tain an inference of guilt. Griffin v. California , 380 U.S. 609, 613-14 (1965). The same is true he re. A defendant cannot be deemed to be acting unreasonabl y and objectively to have abandoned his or her property merely by refusing to comply with an unlawful order. United States v. Hernandez , 7 F.3d 944, 947 (10th Cir. 1993) (“[A]n abandonment is not voluntary when it results from aFourth Amendment violation.”); United States v. King , 990 F.2d 1552, 1564 (10th Cir. 1993) (same). The district court relied exclusively on United States v. Hernandez , 7 F.3d 944 (10th Cir. 1993). That case, however, is clear ly distinguishable. There, the United States border patrol agents boarded a Greyho und bus at a permanent border check point. While questioning the passenge rs regarding citizenship, one of the agents noted a backpack in an overhead stora ge compartment with no one sitting beneath it. The agents asked several of th e passengers seated nearby if the- 14 -

backpack belonged to them. When they all replied t hat it did not, the agent asked several times in a loud voice to everyone on the bu s whether any of them owned the backpack. During this questioning, he scanned the entire bus and made eye contact with each passenger. Once again, he receiv ed no affirmative response. Finally, the agent picked up the backpack, and hold ing it in the air once again asked everyone on the bus if anyone owned it. Agai n, he received no response. At that point, the agent removed the backpack from the bus, subjected it to a dog sniff, and ultimately searched it. It was undisput ed there that the defendant was on the bus during these inquiries, and declined to claim the backpack. As the defendant stepped down from the bus, he explicitly denied ownership of the backpack. From these facts, the court there found abandonment. Each of the salient facts in Hernandez are missing here. In the first place, Hernandez was explicitly asked if he owned the backpack and his silence reasonably could be construed as a denial. Garzon was never so asked. Second, Hernandez explicitly disclaimed ownership. Garzon did not. Third, Hernandez had placed the backpack in a different part of the bus from where he was sitting, which was some evidence in that uncrowded bus that he intended to disassociate himself from the backpack. Here, at the time of th e search, the officers had no idea who owned the backpack, or whether it was phys ically close to the owner during the bus ride. Finally, in Hernandez , the setting was an inspection area of a- 15 -

permanent border patrol check point, where addition al latitude is allowed to the government for purposes of controlling immigration and drug smuggling. In the case of Garzon, the stop occurred neither near the border nor at an established check point. Every case in which we have found abandonment invol ved a situation where the defendant either (1) explicitly disclaime d an interest in the object, or (2) unambiguously engaged in physical conduct that constituted abandonment. For example, in United States v. Austin , 66 F.3d 1115 (10th Cir. 1995), the defendant entrusted his luggage to a total strangerat the airport. The stranger, concerned that it might contain a bomb, turned it o ver to airport security. We held that releasing luggage to a total stranger con stitutes abandonment, at least until such time as it is recovered. In United Stat es v. Jones , 707 F.2d 1169 (10th Cir. 1983), the defendant threw away a knapsack whi le being chased by the police. We held that the physical act of discardin g the knapsack on to public property where it could be picked up by anyone cons tituted abandonment. By contrast, Garzon never verbally disclaimed an inter est in his backpacks; he never discarded the backpacks on to public property; and he did not entrust the backpacks to complete strangers. Rather, he left t he backpacks where the bus company told him he had a legal right to leave them during the layover in Denver. But for the police officer’s unlawful order, the ba ckpacks were exactly where they3 The dissent postulates that there are two alternati ve explanations of

Garzon’s leaving the bags on the bus, i.e. , either he believed he had a right to do so, or he decided to abandon the bags in the face o f an order he believed was lawful, but which in fact was not. The first expla nation leads to a conclusion that no abandonment occurred because, if Garzon correctl y believed he had a right to disregard the order, he never in fact relinquished his interest in the property. Likewise, the second explanation also leads to a co nclusion that there was no abandonment as a matter of law. Abandonment mus t be voluntary, and a defendant’s response to an unlawful police order is not voluntary, regardless of whether the defendant realizes that the order was u nlawful. “‘Abandonment will not be recognized when it is the result of prior illegal police conduct.’” United States v. Ward , 961 F.2d 1526, 1535 (10th Cir. 1992) (quoting Uni ted States v. Brady , 842 F.2d 1313, 1315 n. 7 (D.C. Cir. 1988)). If G arzon abandoned the bags, he did so as a result of the officer’s illega l order, whether he knew the order was illegal or not. The onlyfact the district court relied on in finding abandonment was Garzon’s response to the unlawful p olice order. However, an abandonment that results from unlawful police condu ct is not cognizable as a matter of law. United States v. Hernandez , 7 F.3d 944, 947 (10th Cir. 1993). Thus, there was no abandonment here. We also note that the district court made a factual finding that Garzon did not intend subjectively to abandon his property. T hat finding would seem to preclude the second explanation postulated by the d issent. - 16 - should have been -- in the secure safekeeping of th e bus company, in the internal cabin of the bus, while he was nearby in the statio n awaiting the continuation of his trip. 3 We conclude that the district court’s ruling that G arzon objectively abandoned his backpacks when he refused peacefully to comply with an unlawful order to remove them from the bus and to submit the m to a dog sniff was in error. Therefore, we REVERSE, and REMAND for further proce edings consistent with this opinion.No. 96-1197, United States v. Garzon

Porfilio, J., dissenting: I must respectfully dissent. I think the court has announced a standard for review of the issue of abandonment not previously a dopted in this circuit. Relying upon United States v. Austin , 66 F.3d 1115, 1118-19 (10th Cir. 1995), the majority hypothesizes there is an objective component of abandonment that we must review de novo . I do not find support for that bifurcation of th e issue in
Austin. Indeed, in Austin , the court relied only upon the oft-reiterated pri nciple that abandonment is an issue of fact that is review ed for clear error. Id. at 1117. Moreover, the court’s analysis of the reasonabilityof the search in Austin proceeded from that premise. As that analysis deve loped, the court viewed the defendant’s privacy expectations which were necessary to support his Fourth Amendment claim, and reminded such a claim cannot b e asserted when abandoned property is searched. From that point, the court r eviewed the facts of the case and determined though the defendant could assert a subj ective belief that he had retained his expectation of privacy , that belief was not objectively reasonable. Yet, in no way did the court retreat from the premi se that the district court’s finding of abandonment is a question of fact review ed for clear error. With all due respect, I believe the majority takes the ratio nale of Austin a step beyond which the case really goes, and I cannot join that effort.- 2 -

Moreover, because a district court’s finding of aba ndonment can only be overturned for clear error, the very ambiguity of M r. Garzon’s acts is the key to resolution of the issue on appeal. Either Mr. Garz on chose to ignore Agent Olachea’s directive to remove his baggage from the bus because he believed he had a right to do so, or he abandoned it. Those ar e the only two choices faced by the district court, and “[w]here there are two perm issible views of the evidence, the fact finder’s choice between them cannot be cle arly erroneous.” Anderson v. City of Bessemer City , 40 U.S. 564, 573-74 (1985). In this case, I beli eve the district court correctly found Mr. Garzon manifeste d an objective intent to abandon the two bags he left on the bus. Having heard Agent Olachea’s representation that pa ssengers were going to pass their hand luggage past a “narcotics detection dog,” Mr. Garzon took an innocent backpack with him and left two drug filled packs behind. Although it is true, as noted by the court, that Agent Olachea’s d irective lacked validity, Mr. Garzon obviously knew about the possibility of dete ction by the dog and left drug filled luggage on the bus, taking with him only that which presented no threat to his freedom. To me, this act begets only one infer ence: that he intended to distance himself from the potentially incriminating backpacks in hopes their contents would not be tied to him.- 3 -

Although the agents could have made Mr. Garzon’s intent even more clear by asking him about the ownership of the bags, I do not view their failure critical. Given the state of the evidence, the district courthad only two inferences to draw: either Mr. Garzon left the bags in the bus because he thought he could do so, or he abandoned them. The district court chose to draw the second inference, and evidence supports the choice. We cannot eschew that result. I would affirm the judgment.