United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2235

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United States of America, *

*

 Appellee, * Appeal From the United States

* District Court for the

v. * District of Nebraska.

 *

Edward Deshawn Hawkins, * [UNPUBLISHED]

*

Appellant. *

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Submitted: November 17, 2004

Filed: November 30, 2004

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Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.

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PER CURIAM.

Drug interdiction officers working at the Omaha bus station saw a bus arrive

from Los Angeles. When bags were removed from the bus, the officers noticed a blue

bag without any tags. Edward Deshawn Hawkins gave a claim check to the attendant

and took the bag. Hawkins walked out of the station, met his traveling companion,

gave him the bag, and went to hail a cab. The officers approached Hawkins’s

companion and began to question him. He denied ownership of the bag, and said that

the bag belonged to his brother. When Hawkins returned, he gave a false name and

claimed he had traveled from Los Angeles without any baggage. Hawkins stated he

had just carried the bag outside for a person he met inside the bus station. Officers
1

The Honorable Thomas M. Shanahan, United States District Court for the

District of Nebraska.

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advised Hawkins that they were interested in searching the bag, and Hawkins voiced

concern that the officers would search the bag without a legal right to do so. After

Hawkins continued to deny ownership of the bag, officers opened the bag and found

a container of liquid they believed was phencyclidine (PCP). Hawkins filed a motion

to suppress the PCP, asserting that the warrantless search of the bag violated his

Fourth Amendment rights. The district court1

 denied Hawkins’s motion, finding

Hawkins had no legitimate expectation of privacy in the bag, and even if he did, he

forfeited that expectation by abandoning the bag. Hawkins conditionally pleaded

guilty, and now appeals the denial of his motion to suppress.

“When a person abandons his [property], his expectation of privacy in the

property is so eroded that he no longer has standing to challenge a search of the

luggage on Fourth Amendment grounds.” United States v. Liu, 180 F.3d 957, 960

(8th Cir. 1999). A warrantless search of abandoned property does not involve a

constitutional violation, because “any expectation of privacy in the item searched is

forfeited upon its abandonment.” United States v. Chandler, 197 F.3d 1198, 1200

(8th Cir. 1999) (quoting United States v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997)).

We are to consider the totality of evidence when determining whether property has

been abandoned, focusing on two principal factors: whether the defendant has

claimed or denied ownership of the item, and whether the defendant physically

relinquished it. United States v. James, 353 F.3d 606, 616 (8th Cir. 2003). The

government bears the burden of showing property has been abandoned. Id.

The totality of circumstances indicates Hawkins abandoned any interest he had

in the bag. When the officers approached Hawkins’s companion, he stated the bag

belonged to his brother who had just reentered the terminal. When Hawkins returned,

however, he stated he did not have any luggage and had merely carried the bag to the
2

The district court noted that Hawkins physically relinquished the bag by

starting to walk away from it after the search began, but “[w]e consider only the

information available to the officers at the time of the search” in determining the

abandonment issue. United States v. Tugwell, 125 F.3d 600, 602 (8th Cir. 1997).

Thus, it was error to consider Hawkins’s actions after the search commenced when

deciding whether Hawkins abandoned the property prior to the search.

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front of the terminal for an unidentified person who Hawkins purportedly met in the

terminal. When directly asked about the bag, Hawkins consistently denied that he

owned it. Even as Hawkins exhibited some concern about the bag as he learned the

police wanted to search it, he continued to deny he owned it. These circumstances

would lead reasonable officers to believe that Hawkins abandoned his interest in the

bag.2

Hawkins contends that his protestations that the police could not open someone

else’s bag show that he, as bailee, was asserting a privacy right in the bag. See

United States v. Perea, 986 F.2d 633, 639-40 (2d Cir. 1993) (“One need not be the

owner of the property for his privacy interest to be one that the Fourth Amendment

protects, so long as he has the right to exclude others from dealing with the

property.”); United States v. Benitez-Arreguin, 973 F.2d 823, 827-28 (10th Cir. 1992)

(recognizing that a bailee may have a privacy interest in property). We disagree.

Even assuming the truth of Hawkins’s claim that he brought the bag out for some

stranger in the terminal, any interest he had in the bag evaporated when his duties as

bailee were over. Hawkins told the police that he carried the bag out at the request

of this unidentified person, but there is no evidence that Hawkins agreed to stand

guard over the bag. Indeed, Hawkins indicated to the police that he did not have time

to identify the true owner because he was waiting for a ride, presumably to leave the

area without the bag. Hawkins cannot now assert interests when his conduct at the

scene suggested to officers that he no longer had any interest in the bag. At the time

of the search, Hawkins had no remaining privacy interest as either owner or bailee of

the bag, and thus cannot prevail on a challenge to the search of it.
3

Because we find that any expectation of privacy Hawkins had in the bag was

forfeited by his abandonment of it, we need not consider the district court’s

alternative holding that Hawkins failed to demonstrate that he ever had a legitimate

privacy interest in the bag. 

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We thus affirm the denial of Hawkins’s motion to suppress.3

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