FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 14, 2001

THOMAS K. KAHN

CLERK

*

 Honorable Stephen N. Limbaugh, U.S. District Judge for the Eastern District of

Missouri, sitting by designation. 

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 00-14689

________________________

D.C. Docket No. 99-06244 CR-WDF

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

versus

TERRY COFIELD,

 Defendant-Appellee.

__________________________

Appeal from the United States District Court for the

Southern District of Florida

_________________________

(November 14, 2001)

Before BARKETT and HULL, Circuit Judges, and LIMBAUGH*

, District Judge.

PER CURIAM:
2

The United States appeals an order granting Terry Cofield’s motion to

suppress evidence in his criminal case for possession with intent to distribute

cocaine base in violation of 21 U.S.C. § 841(a)(1). United States v. Cofield, 108 F.

Supp. 2d 1374 (S.D. Fla. 2000). This case involves a warrantless search of

Cofield’s luggage at a train station. Whether or not that search violates the Fourth

Amendment, and thus whether suppression is required, depends upon whether one

believes the version of the events advanced by the government or by Cofield. The

government contends that Cofield abandoned his luggage at the train station and

thus the search of the luggage was constitutional, while Cofield asserts that the

bags were taken from him and searched without his consent. 

The district court referred Cofield’s motion to suppress to a magistrate judge

in order to hear testimony, make credibility determinations, and submit a report

and recommendation. At this hearing, the government offered the testimony of

two of the law enforcement officers who stopped Cofield at the train station, while

Cofield and his girlfriend, who was also present at the train station, testified on

Cofield’s behalf. After hearing the testimony of all of the witnesses, the magistrate

judge found the testimony of the government’s witnesses to be “fully credible”

based upon “each officer’s demeanor and manner of testifying, as well as the

consistency and logic of their rendition of the events.” Conversely, the magistrate
1

The other arguments raised by the government are without merit and thus are not

discussed.

3

judge found Cofield’s testimony to be “internally inconsistent and somewhat at

odds with the testimony of [his girlfriend].” Accordingly, the magistrate judge

recommended that the district court deny the motion to suppress. 

The district court, however, expressly rejected the magistrate judge’s

credibility findings without convening a second evidentiary hearing and granted

Cofield’s motion finding (1) that Cofield’s testimony was credible based upon

Cofield’s prior consistent statements, and (2) in the alternative, that even crediting

the government’s version of the facts as true, the government had failed to show as

a matter of law that Cofield abandoned his luggage. This interlocutory appeal

followed. 

On appeal, the government argues that the district court committed

reversible error by rejecting the magistrate judge’s express credibility findings

without first rehearing the disputed testimony, and that the testimony of the

government witnesses, if credited as true, demonstrates that Cofield abandoned his

luggage. We consider each argument in turn1

.

1. Rejection of the magistrate judge’s credibility findings

Whether the district court may wholly reject a magistrate judge’s credibility
2

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh

Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of

business on September 30, 1981. 

4

findings without rehearing witness testimony is an issue of law which we review

de novo. See, e.g., United States v. Register, 182 F.3d 820, 841 (11th Cir. 1999).

In United States v. Raddatz, 447 U.S. 667 (1980), the Supreme Court held 

that a district court is not required to rehear witness testimony when accepting a

magistrate judge’s credibility findings. See id. at 675-76. The Court then stated,

“we assume it is unlikely that a district court would reject a magistrate’s proposed

findings on credibility when those findings are dispositive and substitute the

judge’s own appraisal; to do so without seeing and hearing the witness or witnesses

whose credibility is in question could well give rise to serious questions which we

do not reach.” Id. at 681 n.7 (emphasis in original). Addressing this unreached

question, this Court has held that generally a district court must rehear the disputed

testimony before rejecting a magistrate judge’s credibility determinations. Louis v.

Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980)2; see also Cullen v. United States,

194 F.3d 401, 406 (2d Cir. 1999); Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995). 

In United States v. Marshall, 609 F.2d 152 (5th Cir. 1980), we held that this

general rule is subject to a small exception in the “rare case” where “there . . . [is]

found in the transcript an articulable basis for rejecting the magistrate’s original
5

resolution of credibility and that basis . . . [is] articulated by the district judge.” Id.

at 155. This is not the “rare case” discussed in Marshall, as the transcript here

provides no basis to reject the magistrate judge’s credibility findings. Thus, the

district court erred when it substituted its credibility determinations for those of the

magistrate judge without first rehearing the disputed testimony. 

2. The law of abandonment

Because a district court’s finding regarding abandonment involves the

resolution of factual disputes, we ordinarily review abandonment determinations

for clear error. See United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994). 

In this case, however, because the district court found that, even accepting the

government’s evidence as true, the government had not shown, as a matter of law,

that Cofield abandoned his luggage, we review the district court’s legal

determination de novo. See Register, 182 F.3d at 841.

Generally, an individual enjoys a reasonable expectation of privacy in

personal luggage. See United States v. McKennon, 814 F.2d 1539, 1544 (11th Cir.

1987) (citing United States v. Place, 462 U.S. 696, 707 (1983)). However, an

individual who abandons or denies ownership of personal property may not contest

the constitutionality of its subsequent acquisition by the police. See Ramos, 12

F.3d at 1023; United States v. Hawkins, 681 F.2d 1343, 1345 (11th Cir. 1982).
6

 In determining whether there has been abandonment, the “‘critical inquiry is

whether the person prejudiced by the search . . . 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.’” Ramos, 12 F.3d at 1022 (quoting United States v. Winchester, 916 F.2d

601, 603 (11th Cir. 1990)). Whether abandonment has occurred is a question of

intent that may be inferred from acts, words and “other objective facts.” United

States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir. 1982). While the individual

whose property was searched bears the burden of proving a legitimate expectation

of privacy in the items searched, the burden of proving abandonment is on the

government. See Ramos, 12 F.3d at 1023. 

According to the government’s witnesses, Cofield was holding two bags at

the time the officers initially asked if he would consent to a search. Cofield

refused consent, stating that a narcotics-detecting dog had already “searched” his

bags. The officers then explained the dog sniff procedure and again asked for

permission to search his bags. At this point, Cofield removed the bags from his

shoulders and put them on the ground, denied that the bags belonged to him, and

attempted to walk away from the area. To confirm Cofield’s denial of ownership,

the officers asked Cofield if the bags belonged to him and Cofield responded, “No,
3

In finding that the government’s evidence, taken as true, failed to demonstrate

abandonment, the district court relied upon the Supreme Court’s decision in Smith v. Ohio, 494

U.S. 541 (1990). Smith, however, is inapposite. In Smith, a defendant carrying a brown paper

bag was approached by two plainclothes officers. One of the officers, without identifying

himself, attempted to stop and question the defendant. The defendant did not respond and

continued walking. After the officer identified himself the defendant threw the bag he was

carrying onto the hood of his car. The officers questioned the defendant as to the contents of the

bag but he did not respond and instead attempted to protect the bag. The officer then pushed the

defendant’s hand away and opened the bag over the defendant’s objections. The drug

paraphernalia discovered within led to the defendant’s eventual conviction. The Supreme Court

reversed the conviction noting that “a citizen who attempts to protect his private property from

inspection after throwing it on a car to respond to a police officer’s inquiry clearly has not

abandoned that property.” Id. at 543-44. Here, unlike the defendant in Smith, Cofield denied

ownership of his luggage and, rather than attempting to protect the contents of the bag, placed

them on the ground and walked away. Thus, we conclude that the district court erred in

determining that the government’s evidence, if taken as true, failed to demonstrate that Cofield

abandoned his bags. 

7

those are not my bags.” The officers then made a loud announcement asking

whether the bags belonged to anyone. No one, including Cofield, claimed

ownership of the bags. The officers then searched the bags and found 1,411 grams

of cocaine base hidden inside one of the bags. 

Contrary to the district court’s conclusion, if these facts are taken as true, it

is clear that Cofield abandoned the bags and the subsequent search was

constitutional. Cofield was not in custody when he placed the bags on the ground,

nor were there any other conditions that would have led Cofield to believe that he

was not free to refuse consent.3

 See, e.g., United States v. Smith, 201 F.3d 1317,

1321-22 (11th Cir. 2000). Moreover, if the government’s version of the facts is

believed, Cofield’s decision to abandon the bags did not result from police
4

In Footnote 1 of its opinion, the district court took judicial notice of a report by a

nonprofit organization and suggested that the decision to search Cofield’s luggage may have

been based on a racial profile. The parties, however, did not raise the issue of racial profiling in

Cofield’s arrest, and did not reference this report in the district court. Also, a thorough review of

the record and the transcripts of the hearing before the magistrate judge reveals no specific

evidence supporting this inference. As such, it was an abuse of discretion to rely on the report

as it had no relevance to the proceedings. The district court erred in judicially-noticing the

report, and judicially-noticing facts about an issue not raised by the parties or supported by the

evidence, and assigning weight to those facts in its credibility determinations. Because this

report had no relevance in this case, we do not reach the final issue of whether this report could

even be the proper subject of judicial notice under Fed. R. Evid. 201.

8

misconduct. See Pirolli, 673 F.2d at 1204 (stating abandonment is involuntary

when precipitated by police misconduct). 

For the foregoing reasons, the district court’s order granting Cofield’s

motion to suppress is vacated and remanded for further proceedings consistent

herewith.4

VACATED AND REMANDED