IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Appellant,

v.

ALEXANDER JOEL HUERTA,

Appellee.

)

)

)

)

)

)

)

)

)

)

2 CA-CR 2009-0078

DEPARTMENT A

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR-20081516

Honorable Deborah Bernini, Judge

REVERSED

Barbara LaWall, Pima County Attorney

 By Jacob R. Lines and Amy S. Ruskin

David Alan Darby

Tucson

Attorneys for Appellant

Tucson

Attorney for Appellee

E S P I N O S A, Presiding Judge.

¶1 After the trial court granted Alexander Huerta‟s motion to suppress all

evidence related to a sheriff‟s deputy‟s discovery of cocaine in an unclaimed duffle bag,

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO

FEB 10 2010
2

the state dismissed all pending charges against Huerta and now appeals the trial court‟s 

suppression ruling. Finding no illegal search occurred, we reverse.

Factual and Procedural History

¶2 We review the facts in the light most favorable to upholding a trial court‟s 

ruling on a motion to suppress. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 

(App. 2007). The following facts are undisputed. In April 2008, Huerta and his son were 

outside their home loading items into Huerta‟s pickup truck when two men in a sportutility vehicle (SUV) approached and began shouting and firing guns at them. Huerta 

produced his own weapon, returned fire, and the SUV sped away. Not seeing his son and 

fearing he had been kidnapped, Huerta chased the SUV in his truck, spilling items from

the bed of the truck onto the roadway. 

¶3 A Pima County sheriff‟s deputy responding to reports of gunfire arrived at 

a location near Huerta‟s home and found people attempting to clear the road. He directed 

them to stop and then picked up several items lying in the street. After the deputy had 

moved the items to the sidewalk, Huerta returned to the scene and described what had 

happened. He appeared nervous and initially declined to identify any of the property,

indicating he was too worried about his son to think about it. After learning his son was 

at a neighbor‟s house, Huerta was again asked about the property and he claimed 

everything except a duffle bag. When Huerta was specifically asked about the bag, he 
3

neither admitted nor denied owning it.1 The deputy subsequently unzipped the bag and 

discovered several wrapped “blocks” of cocaine. Huerta was arrested and officers 

obtained a search warrant for his home and vehicle. Following a pretrial hearing, the trial 

court granted Huerta‟s motion to suppress all evidence acquired as a result of the 

deputy‟s opening the duffle bag and the state voluntarily dismissed the charges to seek 

appellate review of that ruling. We have jurisdiction over the state‟s appeal pursuant to 

A.R.S. § 13-4032(6). 

Discussion

¶4 The state contends the trial court erred in suppressing the evidence obtained 

as a result of the search of the duffle bag, arguing it had been abandoned and Huerta 

retained no privacy interest in its contents. Neither the state nor Huerta has cited any 

controlling authority relating to the specific circumstances presented here, and we have 

found none. Accordingly, we find this a matter of first impression in Arizona. In 

reviewing a trial court‟s ruling on a motion to suppress evidence, we evaluate

discretionary issues for an abuse of discretion but review legal and constitutional issues 

de novo. State v. Allen, 216 Ariz. 320, ¶ 11, 166 P.3d 111, 114 (App. 2007). Whether a 

defendant has abandoned property is a factual determination, see State v. Rogers, 186 

Ariz. 508, 511, 924 P.2d 1027, 1030 (1996), that we review for clear and manifest error, 

 

1At the hearing on Huerta‟s motion to suppress, the arresting officer initially 

testified that when asked, Huerta indicated the duffle bag was not his. On 

cross-examination, he clarified that Huerta “was silent about” the bag and did not 

affirmatively say whether it was or was not his. 
4

see State v. Dean, 206 Ariz. 158, ¶ 9, 76 P.3d 429, 432 (2003). Whether a particular 

expectation of privacy is recognized under constitutional law is reviewed de novo. Allen

216 Ariz. 320 ¶ 15, 166 P.3d at 115.

¶5 Both the United States and Arizona Constitutions forbid unreasonable 

searches and seizures, U.S. Const. amends. IV and XIV; Ariz. Const. art. II, § 8, and 

warrantless searches are “per se unreasonable,” Katz v. United States, 389 U.S. 347, 357 

(1967); see also State v. DeWitt, 184 Ariz. 464, 468, 910 P.2d 9, 13 (1996). A person 

retains no privacy interest, however, in abandoned property and may not invoke the 

exclusionary rule for evidence uncovered as the result of its search. See State v. Huffman, 

169 Ariz. 465, 466-67, 820 P.2d 329, 330-31 (App. 1991). A court will find that property 

has been abandoned only when “„the person prejudiced by the search had voluntarily 

discarded, left behind, or otherwise relinquished his interest in the property in question so 

that he could no longer retain a reasonable expectation of privacy with regard to it at the 

time of the search.‟” State v. Walker, 119 Ariz. 121, 126, 579 P.2d 1091, 1096 (1978), 

quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973). An intent to 

abandon property “„is determined by objective factors, not the defendant‟s subjective 

intent.‟” People v. Pereira, 58 Cal. Rptr. 3d 847, 852 (Cal. Ct. App. 2007), quoting 

People v. Daggs, 34 Cal. Rptr. 3d 649, 652 (Cal. Ct. App. 2005). And “[t]he appropriate 

test is whether defendant‟s words or actions would cause a reasonable person in the 

searching officer‟s position to believe that the property was abandoned.” Id. at 852-53.
5

¶6 The state argues that cases from other jurisdictions on which the trial court 

relied are readily distinguishable from this one and urges us to reverse its ruling. In 

response, Huerta highlights aspects of these cases that he contends support the court‟s 

finding. Although the authorities he cites share some factual elements with the present 

case, we agree with the state that they are distinguishable and that the distinctions are 

important. 

¶7 Huerta relies on Commonwealth v. Holloway, 384 S.E.2d 99, 103-04 (Va. 

Ct. App. 1989), in which the Virginia Court of Appeals held a defendant‟s failure to 

claim luggage “need not be interpreted as abandonment.” There, drug enforcement 

agents boarded a train, told the defendant‟s companion they were investigating illegal 

drugs on the train, and asked the defendant and his companion if they owned two 

particular pieces of luggage, which were searched and found to contain drugs after 

neither the defendant nor any other passenger claimed them. Id. at 101. The state argued 

the search was proper because the defendant had abandoned the luggage by not claiming 

it when asked. Id. In upholding the trial court‟s suppression ruling, the court noted the 

luggage had been in a proper place for storage on the train, and the owner could have 

chosen not to answer or have been unavailable when the agents were questioning other 

passengers. Id. at 103-04.

¶8 Huerta argues that, as in Holloway, a failure to respond does not establish

abandonment. As the state points out, however, the court expressly noted that the 

defendant was aware of the drug investigation and could exercise his right to remain 
6

silent rather than claiming the luggage and incriminating himself. Holloway, 384 S.E.2d 

at 104. But see United States v. Trimble, 986 F.2d 394, 399 (10th Cir. 1993) (police 

investigation or pursuit does not render abandonment involuntary). The Holloway court

also emphasized that the luggage was properly stored on the train. 384 S.E.2d at 104. 

Accordingly, the owner reasonably could expect the luggage to remain on the train if he 

or she did not claim it while the agents were onboard seeking information.

¶9 Here, the deputy responded to a report of shots fired and had no reason to 

suspect the duffle bag contained drugs. Therefore, claiming the bag, whose contents law 

enforcement had neither suspicion about nor the right to inspect, would not have 

incriminated Huerta at all. Cf. Holloway, 384 S.E.2d at 100, 104 (officers boarded train

specifically to investigate defendant‟s possible drug possession and announced intention 

to seek drugs). Additionally, unlike the bag in Holloway, this duffle bag was not stored

in an appropriate place, but was found lying in a roadway. Moreover, Huerta claimed all 

the other items except the duffle bag. Accordingly, we find Holloway inapposite.

¶10 In State v. Joyner, 669 P.2d 152 (Haw. 1983), also cited by Huerta, the

defendant was found not to have abandoned a bag by remaining silent when police 

questioned him. There, officers executing a search warrant for evidence of gambling at a 

bathhouse smelled marijuana in the sauna; they arrested another man, who had marijuana 

on his person, and then asked the others present who owned a bag lying near the 

defendant. Id. at 153. Although the defendant did not claim it, the trial court found he

had exhibited “indicia of ownership” by placing the bag, at most, two feet from himself
7

in the sauna. Id. at 154. The Hawaii Supreme Court upheld the suppression of evidence 

in the bag, expressly refusing to equate “passive failure to claim potentially incriminating 

evidence” with abandonment of property. Id. at 153. 

¶11 Huerta relies on Joyner for the proposition that passive silence is not 

tantamount to abandonment. But, his conduct cannot be deemed “passive” when he had 

affirmatively claimed each and every other item that had been found in the street. 

Moreover, as we noted in our discussion of Holloway, Huerta would not have 

incriminated himself by claiming the duffle bag because the deputy had no reason to 

suspect it contained contraband, unlike the officers in both Holloway and Joyner. Other 

courts have held that a person must claim an item when given the opportunity to do so to 

avoid a finding of abandonment. See United States v. Hernandez, 7 F.3d 944, 947 (10th 

Cir. 1993) (defendant abandoned backpack by failing to claim it after border patrol agent 

on bus repeatedly asked who owned it); People v. Henry, 730 N.W.2d 248, 248 (Mich. 

2007) (defendant‟s failure to object or assert ownership when police looked inside bag 

reflected intent to disavow connection with bag); see also State v. Farinich, 430 A.2d 

233, 236 (N.J. Super. Ct. App. Div. 1981) (failure to deny ownership not construed as

claim of privacy interest for purposes of abandonment). 

¶12 Huerta also contends Joyner supports his additional argument that, because 

“the duffle bag was located in close proximity to [him]” and nobody else approached to 

claim it, the deputy should have inferred that he owned it. This argument is without merit

as it ignores the fact that Huerta‟s proximity to the bag was wholly fortuitous. Before 
8

Huerta returned to the scene, the deputy had cleared the road, piling the items from the 

street onto the sidewalk. Huerta‟s position in relation to the items was no more 

significant than it would have been had the deputy immediately loaded them into a 

vehicle and sent them to the sheriff‟s department as lost property or evidence. 

¶13 The third case Huerta cites, State v. May, 608 A.2d 772 (Me. 1992), is

similarly inapplicable. In May, a police officer opened a Velcro-fastened wallet 

inadvertently left in his patrol car by a man who had been arrested and released. Id. at 

774-75. The officer knew the owner‟s identity and had no reason to open the wallet in 

order to return it. Id. at 776 n.3. The court ruled the wallet had not been abandoned and 

the officer‟s opening it could not be justified as a search of abandoned property. Id. at 

776. 

¶14 Although Huerta likens the duffle bag to the lost wallet in May, a finding of 

abandonment here need not rest on the bag‟s loss from Huerta‟s truck. 2 In May, the

defendant had no opportunity to claim his wallet before it was searched. Id. at 773. 

 

2

The state argues that, contrary to May‟s holding, Huerta‟s initial loss of items 

from his truck constituted abandonment. Although some authority supports this 

contention, see United States v. Arias-Villanueva, 998 F.2d 1491, 1501-02 (9th Cir. 1993) 

(key abandoned when unwittingly left in police car), overruled on other grounds by

United States v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007), resolving the issue is 

unnecessary to our resolution of this case, and we decline to decide whether the 

inadvertent loss of an item can constitute abandonment. See State v. Bernini, 220 Ariz. 

536, ¶ 10, 207 P.3d 789, 792 (App. 2009) (appellate court should only decide questions 

required to dispose of appeal under consideration). 
9

Here, however, the deputy could not be certain who owned the duffle as it and other 

items were lying on a public street when he arrived and a number of people were 

handling the property. And Huerta, unlike the defendant in May, had ample opportunity 

to claim the bag yet failed to do so during the approximately two hours he spent on the 

side of the road with the deputy and despite being specifically asked if it was his.

¶15 We conclude that none of the cases on which the trial court relied would 

require the suppression of this evidence, even were they controlling authority in Arizona. 

Rather, we agree with the state that the appropriate test here is one that considers the 

totality of the circumstances. See United States v. Liu, 180 F.3d 957, 961 (8th Cir. 1999) 

(court must consider all objective facts to determine if property abandoned); United 

States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986) (whether property abandoned 

determined in light of totality of circumstances; important factors include denial of 

ownership and physical relinquishment of property); see also Pereira, 58 Cal. Rptr. 3d at 

852-53 (appropriate test includes reasonable perception of officer). As the state correctly 

notes, the context here is all-important. 

¶16 When asked about the property that had fallen in the street, Huerta

expressly claimed every item except the duffle bag. It is difficult to see how the deputy 

should have interpreted Huerta‟s silence regarding this bag as indicating he intended to 

retain a privacy interest in it when he had unequivocally asserted ownership of the other 

items. Nor did Huerta face a constitutional dilemma of choosing between his privacy 

interests and his right against self-incrimination; as noted earlier, the deputy had no 
10

reason to suspect the bag contained contraband and would have had no reason to open it 

had Huerta claimed it. Cf. Joyner, 669 P.2d at 153 (no abandonment when defendant 

forced to choose between expectation of privacy and right against self-incrimination);

Holloway, 384 S.E.2d at 103-04 (same). In fact, the officer testified that had Huerta 

claimed the bag, he would not have opened it. 

¶17 Finally, this is not a situation in which the status quo could have been 

maintained. Any reasonable person would anticipate that the police would not have left 

the unclaimed bag on the side of the street, but would have taken custody of it and 

routinely opened and inspected it for indications of ownership as well as safety

considerations.

3

 By not claiming the duffle bag in these circumstances, Huerta 

effectively elected the latter option. See Nordling, 804 F.2d at 1470 (bag abandoned 

when “it was virtually certain” it would be opened, inspected, and given to authorities

before defendant could reassert control). From the totality of the circumstances here, we 

can only conclude Huerta intentionally abandoned the bag and thereby sacrificed any 

privacy interest he had in it. That being so, the deputy‟s search of the bag did not violate 

Huerta‟s constitutional rights, and the trial court erred in suppressing the evidence. See

 

3

The state alternatively argues that the contents of the duffle bag would have been 

admissible under the “inevitable discovery” doctrine which would justify an otherwise 

illegal warrantless search. See State v. Rojers, 215 Ariz. 555, ¶ 18, 169 P.3d 651, 655 

(App. 2007). But we need not reach that issue because, here, that the bag would have 

been opened by authorities in any event is part of the totality of the circumstances to 

consider in determining the threshold question of whether Huerta had a reasonable 

privacy interest in it.
11

Walker, 119 Ariz. at 126-27, 579 P.2d at 1096-97 (no standing to challenge search of 

abandoned property).

¶18 Huerta requests that, if we find he had no reasonable expectation of privacy 

under the federal constitution, we separately consider the propriety of the search under 

the Arizona Constitution. Article II, § 8 of our constitution has, on occasion, been 

interpreted apart from the federal constitution and found to afford a defendant greater 

privacy protections. See, e.g., State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 

(1986); State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984). The 

circumstances under which Arizona courts analyze article II, § 8 in this manner, however, 

are exceedingly narrow. Except when the privacy of a person‟s home has been invaded, 

this provision does not confer any additional protection not contained in our federal 

constitution. See Bolt, 142 Ariz. at 264-65, 689 P.2d at 523-24 (Arizona‟s constitutional 

provisions “specific in preserving the sanctity of homes”); State v. Juarez, 203 Ariz. 441, 

¶ 15, 55 P.3d 784, 788 (App. 2002) (except in home search context, protections of article 

II, § 8 concomitant with federal constitution). This case does not involve the warrantless 

search of a home and, accordingly, we decline Huerta‟s invitation to analyze this issue 

separately under our state constitution.
12

Disposition

¶19 Because we have found Huerta abandoned the duffle bag and its search was 

therefore lawful, we remand this matter to the trial court for further proceedings 

consistent with this decision.

PHILIP G. ESPINOSA, Presiding Judge

CONCURRING:

JOSEPH W. HOWARD, Chief Judge 

VIRGINIA C. KELLY, Judge.