UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4125

FERNANDO GARCIA,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CR-95-126-L)

Argued: October 30, 1996

Decided: December 9, 1996

Before RUSSELL and WIDENER, Circuit Judges, and BULLOCK,

Chief United States District Judge for the Middle District of

North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Susan Marie Bauer, Assistant Federal Public Defender,

Greenbelt, Maryland, for Appellant. Andrea L. Smith, Assistant

United States Attorney, Baltimore, Maryland, for Appellee. ON

BRIEF: James K. Bredar, Federal Public Defender, Greenbelt, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Following the district court's denial of his motion to suppress,

Defendant Fernando Garcia entered a conditional plea of guilty to a

one-count indictment charging him with possession with intent to distribute heroin. He appeals the denial of his motion to suppress, contending that the random boarding of a bus by law enforcement

officers who directed passengers to identify their luggage was an

unreasonable seizure in violation of the Fourth Amendment. We

affirm.

I.

On February 9, 1995, agents of the Drug Enforcement Administration and Maryland State Police were stationed at the Maryland House

rest area located on I-95 in Harford County, Maryland. At approximately 5:20 p.m. they approached a Greyhound bus driver whose bus

had stopped at the rest area and asked if they could enter the bus.

Upon obtaining permission from the driver, three officers boarded the

bus. The officers were dressed in plain clothes with their weapons

concealed.

Upon boarding the bus, the officers identified themselves, said that

they were part of a drug interdiction team, and asked the passengers

for their cooperation in identifying their luggage. One of the officers

started in the back of the bus and moved forward, and another officer

started in the front and moved toward the rear, asking each passenger

to identify his or her luggage. The entire process took about five minutes. The agents talked to the passengers in a normal conversational

tone of voice and spent only enough time with each passenger to

determine which bags were owned by them. Defendant Garcia was

sitting in the front right seat. When asked whether he had any bags

on the bus Garcia gave a negative response.

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After the process had been completed, a red-and-black duffle bag,

near the front of the bus, had not been identified. One of the officers

removed the bag from the overhead rack and used the bus intercom

to ask whether the bag belonged to anyone. No one claimed the bag

and it was removed from the bus. Outside the bus, a trained narcotics

dog reacted positively to the bag after sniffing it. The officers then

opened the bag and found heroin. The contents of the bag led the officers to believe that it belonged to Garcia, and they arrested him.

At the suppression hearing, the district court heard testimony from

two of the officers, the bus driver, and a passenger, Jean Schwartz.

Defendant presented Schwartz's testimony to support his argument

that a "reasonable person" would have felt unable to decline the

request of the officers and thus a "seizure" had occurred. However,

the trial court discounted much of Schwartz's testimony, finding that

it was based on a faulty recollection of events and that she was confused. The court also found the two officers who testified concerning

the interdiction process to be credible.

Finding the encounter to be similar to those approved by this court

in United States v. Flowers, 912 F.2d 707 (4th Cir. 1990), cert.

denied, 501 U.S. 1253 (1991), and by the Supreme Court in Florida

v. Bostick, 501 U.S. 429 (1991), the district court denied Defendant's

suppression motion, finding that no unlawful seizure had occurred

and that the duffle bag had been abandoned.

II.

We review legal conclusions de novo, and factual findings for clear

error. United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert. denied,

116 S. Ct. 1890 (1996). The evidence before the trial court clearly

supported its findings and conclusion. Police may seek the voluntary

cooperation of citizens without violating the Fourth Amendment.

Flowers, 912 F.2d at 709. It is undisputed that the officers talked in

a professional tone, without raising their voices, and at no point did

they touch any of the passengers. They were not threatening in their

appearance and demeanor nor were any weapons displayed. Garcia,

who was sitting in the front of the bus, had easy access to the door.

The entire encounter took approximately five minutes and did not significantly delay the bus schedule. Officers are permitted to seize and

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search abandoned property, and when a person denies ownership of

a bag that is subsequently searched he cannot later argue that his

Fourth Amendment rights have been violated. United States v. Clark,

891 F.2d 501, 506 (4th Cir. 1989). Because this case is factually

indistinguishable from Flowers, the decision of the district court in

denying Defendant's motion to suppress is

AFFIRMED.

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