F I L E D

United States Court of Appeals

Tenth Circuit

March 28, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 05-2014

TRAVIS DENNY,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CR-04-666-JP)

Norman Cairns, Assistant United States Attorney (David C. Iglesias, United States Attorney,

with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellant.

Joe M. Romero, Jr., Albuquerque, New Mexico, for Defendant-Appellee.

Before LUCERO, BALDOCK, and McCONNELL, Circuit Judges.

BALDOCK, Circuit Judge.

A grand jury indicted Defendant Travis Denny on possession with intent to

distribute 500 grams or more of a substance containing cocaine in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B). Defendant filed a motion to suppress the cocaine which a
1

 Agent Hyland estimated DEA agents in Albuquerque make 80 to 100 drug

interdictions on Amtrak per year. He explained the significance of Defendant’s one-way

(continued...)

2

federal agent seized from his Amtrak train economy sleeper. The district court granted

Defendant’s motion and the Government appeals. We exercise jurisdiction under 18

U.S.C. § 3731. We review the district court’s underlying factual findings for clear error

and its conclusion that the cocaine’s seizure was unreasonable de novo. See United

States v. Sims, 428 F.3d 945, 951 (10th Cir. 2005). For reasons which follow, we

reverse.

I.

The relevant historical facts are taken from the transcript of the suppression

hearing. That transcript contains the testimony of three Drug Enforcement

Administration (DEA) agents – Ron Deist, Mark Hyland, and William Dorian. Agent

Hyland explained DEA agents assigned to the Amtrak interdiction unit routinely review

Amtrak reservation information of passengers passing through Albuquerque. The agents

are looking for passengers whose travel arrangements are consistent with someone

smuggling drugs or other contraband. On March 17, 2004, Defendant was a passenger

aboard an Amtrak train arriving in Albuquerque from Los Angeles. Prior to their

encounter with Defendant, agents checked his reservation information. Their check

revealed that on the day prior to the train’s departure, Defendant purchased a one-way

ticket from Los Angeles to Newark, New Jersey.1 Agents also ran a criminal history
1

(...continued)

ticket:

In interdiction narcotics work, we see a lot of one-way travel where people

– couriers will leave from their home city to go get narcotics on the West

Coast or southwest border, and then they can’t fly back because of the

increased security at the airport, so they’re scared that their baggage will be

searched or their person will be searched at the airport, and they will then

either take the train or a bus which has a less – lower level of security level,

or they will rent a vehicle, and they will drive back to their home with the

narcotics. And we’ve made several cases over the years where we see oneway purchases.

Agent Hyland further explained the significance of the timing of Defendant’s purchase:

Due to my training, experience, narcotic couriers commonly – they don’t

have control of their time. They have to – they may be waiting for the

narcotics to arrive at their city of origin, and they don’t know how they’re

going to get back, and they make reservations at the last minute, they

purchase tickets at the last minute.

3

check on Defendant and found prior drug-related convictions. According to the NCIC

report, Defendant had been released from the New Jersey prison system in 1998. Based

on the foregoing information, agents believed Defendant might be a drug courier and

decided to contact him.

Agents Dorian and Deist, both in plain clothes, first encountered Defendant in the

common luggage area of the train during its stop in Albuquerque. Agent Dorian

identified himself as a DEA agent, showed his badge, and asked Defendant if he could

speak with him. Defendant “said yes.” Agent Dorian checked Defendant’s ticket. 

Defendant told the agents he had flown to Los Angeles. Agent Dorian asked Defendant
2

 An economy sleeper, formally known as a roomette, is designed for one or two

passengers. The sleeper has reclining seats on either side of a picture window. The seats

convert to a lower bed. The upper bed folds down from above. An economy sleeper

measures either 3’6” x 6’6” or 3’6” x 6’8”, depending on whether part of a Superliner or

Viewliner train. A detailed description of Amtrak’s Superliner Roomette may be found at

http://www.amtrak.com/servlet/ContentServer?cid=1080080553972&pagename=Amtrak

%2Fam2Copy%2FAccommodations_Page&c=am2Copy. Amtrak’s Viewliner Roomette

description may be viewed at http://www.amtrak.com/servlet/ContentServer?cid=

1080080553861&pagename=Amtrak%2Fam2Copy%2FAccommodations_Page&c=am2

Copy.

4

whether he was carrying any luggage. Defendant responded he had two bags, one in the

common luggage area and another “upstairs” in his sleeper. Agent Dorian asked

Defendant for permission to search both bags. Defendant “said yes.” Agent Deist

searched the bag in the common luggage area. Defendant led Agent Dorian upstairs to

the sleeper. Agents Hyland and Deist did not accompany them. Defendant entered his

sleeper. At all times during the encounter, the sleeper’s door remained open. From

where Agent Dorian stood at the sleeper’s threshold, he observed a gym bag on the right

seat.2

 The agent watched while Defendant partially unzipped the bag and removed a pair

of shoes. Defendant told the agent “I don’t have anything else in the bag,” put the shoes

back in the bag, and zipped it closed. When Defendant removed the pair of shoes,

however, Agent Dorian observed other items inside the bag. Agent Dorian again asked

Defendant if he (Agent Dorian) could search the gym bag. Defendant refused stating

“you just did.”

Concluding Defendant had withdrawn his consent to search the gym bag,
5

Agent Dorian asked Defendant if he would allow a narcotics dog to sniff the bag. 

Defendant “said yes.” Agent Dorian stepped back from the sleeper’s entrance and into

the hallway to summon a K-9 unit. At that point, Defendant became visibly agitated and

upset. Defendant asked Agent Dorian if he could step outside to smoke a cigarette. 

Agent Dorian told Defendant he was not being detained. Defendant instead paced “back

and forth” in the hallway. Defendant asked Agent Dorian when the narcotics dog would

arrive and what it would do. Agent Dorian explained to Defendant the narcotics dog

would arrive momentarily and would sniff the bag and “alert” if the bag contained

narcotics.

Defendant reentered the sleeper, while its door remained open. Standing just

outside the sleeper, Agent Dorian heard Defendant unzip the gym bag. The agent

watched, apparently without Defendant’s knowledge, while Defendant removed from his

gym bag a clear plastic bag containing a “Ritz” cracker box: “I saw him [Defendant]

kneel down and take a plastic bag out of that bag, that gym bag, and place it under the

[left] seat . . . .” After he had placed the plastic bag underneath the seat, Defendant

informed Agent Dorian “[y]ou can go ahead and search the [gym] bag now.” Agent

Dorian reentered the sleeper to search the gym bag.

Before searching the gym bag, Agent Dorian asked Defendant if any other bags, of

any type, in the sleeper belonged to him. Defendant “said no.” Agent Dorian proceeded

to search the gym bag but found nothing incriminating. Defendant stated “I told you,
3

 Agent Dorian explained the necessity of stepping back into the hallway to

conduct the patdown:

Q. And this is a crowded compartment, is it not? Is it fair to say it’s a

crowded compartment?

A. It’s small; for one person generally.

* * *

Q. And it’s even more crowded if two people are in there?

A. Yes.

6

there is nothing in here. See, I told you.” Agent Dorian asked Defendant about the

plastic bag underneath the seat. When the agent asked whether the bag belonged to

Defendant, Defendant responded “no, he didn’t know anything about that bag.” At that

point, Agent Dorian considered the plastic bag abandoned.

Agent Dorian asked Defendant for permission to conduct a protective patdown. 

Defendant consented. As Agent Dorian conducted the patdown, he traversed from the

small space inside the sleeper back into the hallway: “I was standing just in front of the

room. And he was, I believe, one of his legs, possible his left side, was inside the room. 

And he was kind of leaning against the side of the entrance to the door or to the room.”3

Following the patdown, Agent Dorian again reentered Defendant’s sleeper and picked up

the plastic bag. Agent Dorian reached inside the plastic bag and opened the flaps of the

cracker box which were closed but not sealed. Inside the cracker box Agent Dorian

observed a duct-taped bundle consistent with a “brick” of cocaine. To make a long story

shorter, Agent Dorian arrested Defendant after a brief struggle.
7

Based upon factual findings consistent with the foregoing, the district court issued

a thorough written order suppressing the cocaine. The court identified the controlling

questions as “whether Agent Dorian [once he stepped back into the hallway to conduct

the patdown] lawfully reentered the sleeper room to retrieve the plastic bag with the

cracker box from under the seat . . . and [if so,] whether Agent Dorian exceeded the scope

of permissible action by searching the [cracker box] without a warrant or probable cause.”

 The district court concluded Agent Dorian, once he witnessed Defendant remove the

plastic bag from his gym bag and place it underneath the seat, had reasonable suspicion to

believe the plastic bag contained contraband: “All of the[] circumstances including the

agent’s collective training and experience were sufficient for Agent Dorian to have

developed a reasonable articulable suspicion that the plastic bag with the cracker box

contained evidence of criminal activity.” The court reasoned Agent Dorian could have

seized the bag based upon such suspicion while lawfully inside Defendant’s sleeper

conducting the consensual search of Defendant’s gym bag. But because the purpose for

which Defendant consented to Agent Dorian’s presence in the sleeper had been satisfied (

i.e., the search of the gym bag), the district court reasoned Agent Dorian, absent

Defendant’s renewed consent, could not lawfully reenter Defendant’s sleeper once the

agent stepped into the hallway to conduct the protective patdown. The court held that

because Defendant had “some” reasonable expectation of privacy in his sleeper, Agent

Dorian’s reentry into the sleeper violated Defendant’s Fourth Amendment rights.
8

The district court further concluded that even if the plastic bag’s seizure was

justified, Agent Dorian prematurely and unlawfully searched the cracker box within the

bag without a warrant. The district court rejected the Government’s argument Defendant

abandoned the plastic bag when he explicitly disavowed any ownership interest in it. 

Because, according to the court, “Defendant’s actions with respect to the plastic bag

[were] contrary to his disclaimer of ownership[,]” the Government failed to meet “its

burden of showing clearly that the Defendant failed to retain any reasonable expectation

of privacy in the plastic bag.”

II.

On appeal, the Government first argues the district court erred in holding Agent

Dorian violated the Fourth Amendment when he reentered Defendant’s sleeper to seize

the plastic bag containing the cracker box. According to the district court, the seizure was

unreasonable because Agent Dorian invaded Defendant’s reasonable expectation of

privacy in his sleeper to effectuate the seizure. In determining the reasonableness of

Agent Dorian’s actions, we first assess the degree to which his actions intruded upon

Defendant’s reasonable expectation of privacy and the degree to which such actions were

necessary to promote legitimate governmental interests. See Wyoming v. Houghton, 526

U.S. 295, 299-300 (1999). A balancing of those expectations and interests then guides

our determination of reasonableness under the Fourth Amendment. See Whren v. United

States, 517 U.S. 806, 817 (1996) (explaining that while not always apparent, every Fourth
4

 In United States v. Colyer, 878 F.2d 469, 475 (D.C. Cir. 1989), the D. C. Circuit

aptly noted that “[a] sleeper car does indeed possess several indicia of a dwelling; but

then again, so does a motor home, which, the Supreme Court has held, falls within the

ambit of the automobile exception to the Warrant Clause.” (citing California v. Carney,

471 U.S. 386, 392 (1985)).

9

Amendment case in principle involves a balancing of all relevant factors).

We have previously acknowledged passengers traveling in train sleepers enjoy a

greater expectation of privacy than passengers traveling in coach. But we have not

defined the precise degree of privacy a train sleeper confers on its occupant. We have

stated only that “such roomettes do not confer upon occupants the same degree of privacy

as a dwelling or hotel or motel room[.]” See United States v. Little, 18 F.3d 1499, 1505

(10th Cir. 1994) (en banc).4

 As Judge McConnell has noted, a train is a “social space[]

where citizens routinely encounter strangers. Even within a semi-private train roomette, a

passenger likely will confront the ticket collector, the snack vendor, and perhaps other

passengers milling about the train.” United States v. Abdenbi, 361 F.3d 1282, 1302 (10th

Cir. 2004) (McConnell, J., dissenting).

Sound reasons exist why federal courts have hesitated to recognize any substantial

degree of privacy interest in a train sleeper. In United States v. Whitehead, 849 F.2d 849,

854 (4th Cir. 1988) (superceded in part by statute on other grounds), the Fourth Circuit

explained the “diminished privacy aspects” of a train sleeper “result in part from the law

enforcement exigency created by ready mobility and its potential for immediate flight

from the jurisdiction, as well as from the web of governmental regulation that surrounds
10

most forms of [public] transportation.” (internal citation omitted). The court noted in

that case defendant “was required on at least three or four occasions to open his

compartment for routine ticket checks.” Id. at 855. It further recognized “the riding

public and train employees alike enjoyed ready access to [defendant’s] tiny compartment

if he stepped out or did not engage the inside sliding lock.” Id. For all these reasons, the

court concluded one’s privacy interests in a train sleeper were “substantially less than

those attached to fixed dwellings.” Id. at 854 (emphasis added).

In United States v. Liberto, 660 F. Supp. 889, 891 (D.D.C. 1987), aff’d without

opinion, 838 F.2d 571 (D.C. Cir. 1988), the court similarly explained the reduced

expectation of privacy in a train sleeper while focusing on the particular facts of that case:

The travel of passengers by railroad has always been subject to pervasive

government regulation. Moreover, passengers in sleeper compartments are

subject to inquiry and oversight by the conductors and other railroad

employees. And in this case, the defendant’s own behavior, in leaving the

compartment door open and the curtains parted, suggested that he was not

relying on any increased expectation of privacy afforded by a separate

compartment.

(internal citation omitted). Notably, in United States v. Tartaglia, 864 F.2d 837, 841

(D.C. Cir. 1989), the D.C. Circuit reaffirmed Liberto, relying on it to summarily reject a

defendant’s claim that he possessed a “heightened expectation of privacy in his train

roomette.”

In addition to the foregoing reasons, the facts of this case further illustrate why

Defendant possessed a diminished expectation of privacy in his train sleeper. Defendant
11

twice consented to Agent Dorian’s entry into his sleeper just prior to the patdown. 

Defendant then consented to the patdown itself while Agent Dorian was still inside the

sleeper. Throughout the entire encounter, the door to Defendant’s sleeper remained open

exposing both its contents and Defendant’s suspect actions to Agent Dorian. The obvious

reason Agent Dorian stepped outside the small confines of the sleeper before seizing the

plastic bag was so he could safely patdown Defendant in preparation for the seizure.

On the opposite scale, the Government’s interest in enforcing our nation’s drug

laws is undoubtedly substantial for reasons too numerous to detail here. Suffice it to say

“[t]he public has a compelling interest in detecting those who would traffic in deadly

drugs for personal profit.” United States v. Mendenhall, 446 U.S. 544, 561 (1980)

(Powell, J., concurring in part). At the same time, the Government has a keen interest in

ensuring the safety of its officers and agents assigned to fight our Nation’s drug scourge. 

The public’s interest in the safety of its law enforcement officials “is both legitimate and

weighty.” Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977).

Balancing the respective interests, we conclude the district court in this case

erroneously held Defendant’s privacy interests required Agent Dorian to obtain

Defendant’s express consent before reentering the sleeper following the protective

patdown. Whatever the measure of Defendant’s “diminished” expectation of privacy in

his sleeper, we are certain, based upon both the foregoing authorities and the specific

facts of this case, that Agent Dorian did not unreasonably infringe upon that expectation
5

 Defendant challenges neither the district court’s conclusion that the surrounding

circumstances gave rise to reasonable suspicion the plastic bag contained evidence of

criminal activity, nor the court’s conclusion that prior to the patdown Defendant

consented to Agent Dorian’s presence in the sleeper.

12

by momentarily reentering the sleeper to seize the plastic bag and the cracker box it

contained from underneath the seat This was not a fishing expedition. The district court

concluded, correctly we add, that Agent Dorian had reasonable suspicion to seize the bag

while inside the sleeper.5 See United States v. Houston, 21 F.3d 1035, 1036-38 (10th Cir.

1994) (holding reasonable suspicion supported an agent’s seizure of defendant’s suitcase

from within his train sleeper). We can discern no good reason why the law should not

permit Agent Dorian to step outside the close confines of Defendant’s sleeper to conduct

a brief patdown for the safety of both himself and Defendant before reentering the sleeper

to seize the plastic bag. Agent Dorian’s subsequent reentry was limited both in scope and

time and the intrusion into Defendant’s privacy at that point was minimal. No measurable

harm to Defendant’s privacy interests resulted from Agent Dorian recrossing the

threshold of the sleeper. Considering the totality of the circumstances, we easily conclude

Agent Dorian’s brief reentry into Defendant’s sleeper for the sole purpose of seizing the

plastic bag and the cracker box within it was imminently reasonable.

III.

Having determined Agent Dorian’s reentry into Defendant’s sleeper did not violate

the Fourth Amendment, we next turn to the agent’s search of the cracker box. The
13

Government argues Defendant has no standing to challenge the search because Defendant

abandoned the plastic bag and its contents when he explicitly disavowed any ownership

interest in them. See United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997)

(“Abandonment is akin to the issue of standing because a defendant lacks standing to

complain of an illegal search . . . of property which has been abandoned.”). The district

court reasoned that because Defendant placed the plastic bag underneath the seat inside

his sleeper, he evidenced an intent to keep the bag from public scrutiny. Moreover,

according to the court, because Defendant’s conduct was contrary to his disclaimer of

ownership, the Government did not establish Defendant relinquished his expectation of

privacy in the contents of the plastic bag. See United States v. Pitts, 322 F.3d 449, 456

(7th Cir. 2003) (recognizing the burden is on the Government to establish abandonment

by a preponderance of the evidence).

By removing the plastic bag from his gym bag and placing the former underneath

the seat, Defendant obviously was attempting to hide it from Agent Dorian–much the

same way a suspect running from police seeks to hide his contraband by throwing it in the

bushes. Like the fleeing suspect, Defendant did not subjectively intend to expose his

contraband to the public. Rather, Defendant undoubtedly intended to retrieve the bag

once the agent was no longer on his trail. The district court essentially so found and we

have no quarrel with that. But the fact Defendant intended to hide the bag and retrieve it

from underneath the seat at a later time does not dispose of our inquiry. We still must ask
14

whether Defendant maintained an objectively reasonable expectation of privacy in the bag

and the cracker box within it when, in response to Agent Dorian’s inquiries, he expressly

disclaimed ownership of the bag and its contents. See United States v. Austin, 66 F.3d

1115, 1118 (10th Cir. 1995). In Garzon, 119 F.3d at 1449 (internal citations omitted), we

explained:

 This test for abandonment subsumes both a subjective and an objective

component. 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.

Whether Defendant harbored a desire to later retrieve the bag is irrelevant to our

analysis of the objective component. See Austin, 66 F.3d at 1118. Even where a suspect

does not subjectively intend to relinquish all ownership interest in an item, such suspect

may nevertheless relinquish his or her reasonable expectation of privacy in the item. See

United States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000) (explaining the objective

prong of the abandonment inquiry requires the court to “look solely to the external

manifestations of [defendant’s] intent”). Subjective intent aside, “one who disclaims

ownership is likely to be found to have abandoned ownership. Phrased another way,

disclaiming ownership is tantamount to declaring indifference, and thus negates the

existence of any privacy concern in a container’s contents.” United States v. Zapata, 18

F.3d 971, 978 (1st Cir. 1994) (internal citations omitted); accord United States v. Frazier,

936 F.2d 262, 265 (6th Cir. 1991) (holding verbal disclaimer of ownership constituted
6

 In Garzon, 119 F.3d at 1452, we observed: “Every case in which we have found

abandonment involved a situation where the defendant either (1) explicitly disclaimed an

interest in the object, or (2) unambiguously engaged in physical conduct that constituted

abandonment.” (emphasis added). In Garzon, we held defendant had not abandoned his

bags by leaving them on a bus consistent with bus rules, despite a police officer’s order to

remove all bags in preparation for a dog sniff. We “emphasize[d] that Garzon did

nothing to manifest objectively an intent to abandon his backpacks that were left on the

bus. Garzon never once denied ownership of those backpacks.” Id. at 1450.

15

abandonment of bag); United States v. Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990)

(explaining “voluntary denial of ownership demonstrates sufficient intent of

disassociation to prove abandonment”); Bond v. United States, 77 F.3d 1009, 1013 (7th

Cir. 1996) (same). Indeed, Defendant does not cite and we have not found a case in

which a defendant’s express disclaimer of ownership in response to a lawful police

inquiry did not constitute abandonment of property in the Fourth Amendment context.6

Our decision in United States v. Burbage, 365 F.3d 1174 (10th Cir. 2004) is

consistent with the foregoing authority. In Burbage, a DEA agent aboard an Amtrak train

asked defendant whether a backpack in an overhead rack belonged to him. Defendant

answered no, but “added the owner of the backpack had given him permission to put his

green portfolio inside it.” Id. at 1176. On appeal, defendant argued he “asserted

sufficient interest in the backpack to preclude treatment of it as an abandoned object.” Id.

at 1178 (internal quotations omitted). We rejected that argument and explained:

By affirmatively denying to [the agent] that he owned the backpack,

Defendant lost any objectively reasonable expectation of privacy in the

backpack as a whole. To deny ownership is to announce to the world, “you

want it, you can have it, as far as I’m concerned.” Having made that
7

 That Defendant was the subject of Agent Dorian’s investigation and may have

feared incriminating himself has no bearing upon our conclusion. See United States v.

Flynn, 309 F.3d 736, 738 (10th Cir. 2002) (explaining a lawful police investigation at the

time of abandonment does not render the abandonment involuntary); United States v.

Han, 74 F.3d 537, 544 (4th Cir. 1996) (explaining a defendant’s fear of incrimination

does not render disclaimer of ownership ineffective).

16

announcement, Defendant could not reasonably expect [the agent] to

recognize that he had a privacy interest in the backpack.

Id. at 1178-79 (emphasis added).

Similarly, when Defendant affirmatively denied owning the plastic bag he too

voluntarily relinquished any reasonable expectation of privacy in its contents.7 Agent

Dorian entered the sleeper (i.e., the consensual entry prior to the patdown) after watching

Defendant remove the plastic bag from the gym bag and place the former underneath the

seat. Defendant obviously was trying to disassociate himself from the bag and its

contents, albeit for the time being. Agent Dorian specifically asked Defendant whether

any other bags inside the sleeper, aside from the gym bag, belonged to Defendant. Agent

Dorian made his inquiry as broad as possible by asking about bags “of any type.” 

Defendant responded no. Agent Dorian then specifically asked Defendant if the plastic

bag underneath the seat belonged to him. Defendant again responded no, and added he

did not know anything about the plastic bag. Defendant’s verbal disavowment of any

knowledge about the plastic bag or its contents was unequivocal. Agent Dorian was

entitled to take Defendant at his word.

That Agent Dorian might have known Defendant previously exercised dominion
17

over the bag is irrelevant. “The constitutional property right belonged to [Defendant],

and his abandonment of that right did not depend on whether [Agent Dorian] knew that it

existed.” United States v. Han, 74 F.3d 537, 543 (4th Cir. 1996); see also United States v.

Torres, 949 F.2d 606, 608 (2d Cir. 1991) (noting “an otherwise legitimate privacy interest

may be lost by disclaiming or abandoning property, especially when actions or statements

disavow any expectation of privacy”) (emphasis added); United States v. Ruiz, 935 F.2d

982, 984 (8th Cir. 1991) (rejecting argument that a disclaimer did not constitute

abandonment because the detective knew defendant was lying when he denied

ownership). When Agent Dorian inquired about the plastic bag, Defendant did not

exhibit any normal precaution consistent with ownership which might lead us to conclude

he had a reasonable expectation of privacy in the bag. Defendant was not seeking to

protect the bag from Agent Dorian at that point; rather, Defendant was disassociating

himself from the bag best he knew how–by disclaiming ownership of and denying any

knowledge about the bag, in other words, by abandoning it. Compare Smith v. Ohio, 494

U.S. 541, 543 (1990) (rejecting the argument that an individual abandoned his grocery

bag where he attempted to protect it from inspection after throwing it on his car to

respond to a police officer’s inquiry).

Defendant makes much of the fact the plastic bag was inside his sleeper. Given

that Agent Dorian was lawfully inside the sleeper when he seized the bag, we cannot

agree with the proposition that the plastic bag’s presence inside the sleeper in itself
18

somehow negated Defendant’s unequivocal disclaimer of ownership. That Defendant had

rented a sleeper and placed personal effects therein does not establish a reasonable

expectation of privacy in the entirety of its contents when Defendant explicitly disclaimed

ownership in a portion of those contents, specifically the plastic bag. See Burbage, 365

F.3d 1178-79; United States v. Sweeting, 933 F.2d 962, 964 (11th Cir. 1991). Perhaps

the location of the bag inside the sleeper would be relevant if the Government sought to

establish abandonment through Defendant’s actions, rather than his words. See United

States v. Donnes, 947 F.2d 1430, 1436 n.8 (10th Cir. 1991) (rejecting government’s

argument defendant abandoned property by leaving it in his girlfriend’s house because

defendant had a legitimate expectation of privacy in the house). In such a case, where a

defendant places his property is relevant to the determination of whether society would

recognize his or her expectation of privacy in the property as reasonable. See e.g. United

States v. Flynn, 309 F.3d 736, 738 (10th Cir. 2002) (holding society will not recognize a

reasonable expectation of privacy in property a defendant voluntarily leaves behind in the

street). But, given Defendant’s diminished expectation of privacy in his sleeper, the

actual location of the bag inside the sleeper is of little relevance because Agent Dorian

made an objectively reasonable determination that Defendant intended to abandon the bag

based on Defendant’s own unequivocal statements. See United States v. Williams, 538

F.2d 549, 550-51 (4th Cir. 1976) (defendant’s express disclaimer of ownership interest in

typewriter and briefcase inside his motel room constituted abandonment). We conclude
19

the district court erred to the extent it concluded Defendant, once he expressly disclaimed

any ownership interest in the plastic bag and its contents, maintained an expectation of

privacy therein which society would accept as reasonable. Because Defendant abandoned

the plastic bag and its contents, he had no standing to objection to Agent Dorian’s search

of the cracker box.

REVERSED.