                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       JUL 18 1997
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                              TENTH CIRCUIT




 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.
                                                      No. 96-1197
 CARLOS JULIO GARZON, a/k/a
 CARLOS JULIIO GARZON-DAZA,

       Defendant-Appellant.




                 Appeal from the United States District Court
                         for the District of Colorado
                           (D.C. No. 95-CR-315-Z)


Virginia L. Grady, Assistant Federal Public Defender, Denver, Colorado (Michael
G. Katz, Federal Public Defender, Denver, Colorado, with her on the briefs), for
Defendant-Appellant.

James C. Murphy, Assistant United States Attorney, Denver, Colorado (Henry L.
Solano, United States Attorney, Denver, Colorado, with him on the brief), for
Plaintiff-Appellee.


Before PORFILIO, EBEL, and HENRY, Circuit Judges.


EBEL, Circuit Judge.
      During a warrantless search of Defendant-Appellant Carlos Julio Garzon’s

backpacks, which had been left in the overhead storage compartment of a

Greyhound bus during a layover at the downtown Denver, Colorado bus terminal,

law enforcement officers discovered approximately four kilograms of cocaine.

Garzon was indicted for possession with intent to distribute cocaine, and the

aiding and abetting thereof. Garzon moved to suppress the cocaine, claiming it

was the product of an unconstitutional search of his backpacks. The United

States opposed the motion, arguing that Garzon abandoned his backpacks when he

left the backpacks on the bus during the layover despite a law enforcement

officer’s instructions to all passengers to leave the bus and to take all carry-on

items with them past a trained narcotics detection dog. The district court ruled

that Garzon had abandoned his backpacks when he left his backpacks on the bus,

and accordingly denied Garzon’s motion. The district court held that its ruling

was controlled by our opinion in United States v. Hernandez, 7 F.3d 944 (10th

Cir. 1993). Garzon then entered a conditional guilty plea pursuant to Fed. R.

Crim. P. 11(a)(2), and now appeals. We have jurisdiction under 28 U.S.C. §

1291. We reverse.

                                  BACKGROUND

      On August 22, 1995, Defendant-Appellant Carlos Julio Garzon was a

passenger on Greyhound Lines Route 2192, traveling eastbound from Los


                                         -2-
Angeles. The bus was scheduled to stop in Denver for a layover before traveling

on to Chicago, where Garzon was to transfer to a Cleveland-bound bus. Before

the bus arrived at the Denver terminal, the driver informed the passengers that

ongoing passengers would be permitted to leave their carry-on luggage on the bus

during the layover.

      Route 2192 was at this time the subject of a drug interdiction effort

coordinated by the Drug Enforcement Administration (“DEA”) and Denver police.

Accordingly, when the bus arrived in Denver at approximately 1:15 p.m, it was

met by DEA agents Charlie Olachea and Vinnie Sanchez, along with Denver

Police officers David Kechter and Jerry Snow and a trained narcotics detection

dog, Sintha. Agent Olachea boarded the bus and, after welcoming the passengers

to Denver, stated that Denver police were conducting drug interdiction activities

at the terminal. Olachea informed the passengers that a trained narcotics

detection dog was waiting outside the bus and said: “I would appreciate it if you

would hold your carry-on luggage in your right hand as you walk past the

narcotics-trained dog.” 1 Olachea then told the passengers that all carry-on



      1
          Olachea admitted that a dog sniff of moving luggage for drugs is “not
real reliable.” Hence, the real purpose of the order was not to submit the luggage
to a dog sniff, but rather to observe how various passengers react when they are
personally forced to comply with this order. So, this order should be viewed as
directed against the passengers rather than just an attempt to make the luggage
available for a dog sniff.

                                        -3-
luggage would need to be removed so that the bus could be “cleared” before

going on to Chicago. Several passengers inquired whether they were required to

remove their baggage from the bus, and Olachea responded via the intercom that

they were so required. All of the passengers then left the bus. As he left the bus,

Garzon carried a blue backpack. Officer Kechter noted that Garzon held his bag

high on his left side, away from the dog; this made Kechter suspicious, and he

thus asked another officer to keep an eye on Garzon.

      After all the passengers had cleared the bus, Olachea observed two

backpacks that had been left together in the overhead luggage compartment near

the middle of the bus. The backpacks had no identifying tags or labels. Olachea

removed the bags from the bus and asked two passengers who remained near the

bus whether the bags belonged to them. Although the two passengers disclaimed

ownership, Olachea did not make any further attempt to identify who owned the

bags. Instead, he gave the bags to Officer Kechter, who placed the bags on a cart

along with the checked luggage, which the officers had removed from a

compartment underneath the bus. Officer Kechter then took this cart to another

section of the terminal to allow Sintha to examine the luggage for narcotics.

      Sintha alerted on the tan backpack, biting and clawing at it in a sufficiently

aggressive manner that it came open, spilling out its contents. Kechter then

searched both backpacks, although he had not obtained a warrant to do so. In


                                        -4-
each backpack he found two bricks of cocaine. The tan backpack also contained a

t-shirt with a Florida logo on it, as well as a pair of Levi’s blue jeans and a pair of

shorts, both size 33. The black backpack contained a t-shirt with a Levi’s logo

on it.

         While Kechter was searching the backpacks, Sanchez and Olachea looked

for Garzon inside the terminal because of Garzon’s suspicious behavior upon

leaving the bus. Upon finding Garzon and his female traveling companion, the

agents asked them for their tickets. Garzon produced a ticket in the name of

“Jose Delgado,” and explained that a friend had purchased the ticket for him. He

then produced a Florida driver’s license with his name on it. Garzon’s companion

produced a ticket in the name of “B. Bigoa,” and a New Jersey driver’s license in

the name of “Beatrice Bigoa.” Both tickets were one-way fares to Cleveland,

Ohio that had been purchased in Los Angeles, with cash.

         During this encounter, Sanchez and Olachea also conducted a consensual

search of the blue backpack that Garzon had carried off the bus. This search did

not uncover any contraband. The agents did not at this time ask Garzon whether

he had left any baggage on the bus, nor did they ask Garzon any other questions.

However, they did note that he was wearing a blue baseball cap with a Levi’s logo

on it.




                                          -5-
      After their encounter with Garzon and Bigoa, Agents Sanchez and Olachea

rendezvoused with Officer Kechter, who informed them that he had found cocaine

in the backpacks. Sanchez and Olachea then contacted Garzon and Bigoa once

again. Olachea asked Garzon for permission to look at the shorts he was wearing

to determine their size. Garzon agreed, and Olachea determined that the shorts

were size 33. Garzon then consented to another search of his blue backpack. No

contraband was discovered, although the agents noted that, in addition to the

baseball cap previously discovered, the bag also contained a t-shirt bearing a

Levi’s logo. As before, Garzon was never asked if the two backpacks left on the

bus belonged to him. During further questioning, the officers concluded that

“things just didn’t seem to add up.” Garzon and Bigoa were then arrested. Bigoa

was later released and no charges were filed against her.

      The cocaine was taken to the Aurora Police Department laboratory, where it

was determined that each brick weighed approximately one kilogram.

Additionally, Garzon’s fingerprints were found on the packaging material that had

covered the cocaine. Based on this information, Garzon was indicted for

possession with intent to distribute cocaine.

      Prior to trial, Garzon filed a motion to suppress the cocaine, claiming the

warrantless search of his backpacks left on the bus was impermissible under the

Fourth Amendment. At the suppression hearing, the district court heard testimony


                                        -6-
from Agents Olachea and Kechter, as well as from two Greyhound employees who

testified that Greyhound passengers are normally permitted to leave their baggage

on the bus during stopovers, and are specifically told that before the bus arrives at

the terminal. The district court denied the suppression motion from the bench,

agreeing with the government that Garzon had abandoned the backpacks when he

left them on the bus in violation of Officer Olachea’s instruction to remove all

carry-on luggage, and thus had no reasonable expectation of privacy in them

under the Fourth Amendment. Garzon then pled guilty, reserving his right to

appeal the suppression issue pursuant to Fed. R. Crim. P. 11(a)(2).



                                   DISCUSSION

      “The test for abandonment is whether an individual has retained any

reasonable expectation of privacy in the object.” United States v. Jones, 707 F.2d

1169, 1172 (10th Cir. 1983); United States v. Hernandez, 7 F.3d at 947.

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

to complain of an illegal search or seizure of property which has been abandoned.

Id.

      This test of abandonment subsumes both a subjective and an objective

component. United States v. Austin, 66 F.3d 1115, 1118-19 (10th Cir. 1995),

cert. denied. 116 S. Ct. 799 (1996). Findings of subjective intent are findings of


                                         -7-
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. United States v. Austin, 66 F.3d at 1118-19; United

States v. Benitez-Arreguin, 973 F.2d 823, 827 (10th Cir. 1992) (“[W]e review de

novo a district court’s ultimate objective determination whether society would

recognize a defendant’s subjective expectation of privacy.”); United States v.

Marchant, 55 F.3d 509, 512 (10th Cir.), cert. denied, 116 S. Ct. 260 (1995). In

this case, the district court made a factual finding that Garzon subjectively did not

intend to abandon those backpacks. The court found,

      I am sure that in fact Mr. Garzon, if these were his bags, would not -
      did not consider these abandoned just as Mr. Hernandez in United
      States v. Hernandez may not have considered his bags to be
      abandoned. (Tr. at 182-83).

That factual finding is reviewed under a clearly erroneous standard, and we do not

find it to be clearly erroneous. Thus, we accept the finding that Garzon retained a

subjective expectation of privacy in the two backpacks left on the bus.

      We turn then to the objective reasonableness component of abandonment.

That is the component relied upon by the court in concluding there was

abandonment here. The court ruled that even though the defendant did not intend

to abandon the backpacks, his subjective expectation of privacy and ownership in

those backpacks was not objectively reasonable because a law enforcement officer

                                         -8-
had told the passengers on the bus that they had to remove all of their carry-on

luggage. The court’s ruling, in that regard is as follows:

      [T]here is no reasonable expectation of privacy if someone ignores
      that announcement [the announcement by the police that all handbags
      must be removed so that they can be subjected to a dog sniff for
      drugs] and leaves their bag on the bus. (Tr. at 184-85).

As noted above, we review that holding de novo, and it is here that we must

disagree with the district court.

      We begin by emphasizing that the government did not argue, and the court

did not find, that Olachea’s order for all passengers to disembark the bus with all

their personal belongings and to proceed past a drug-sniffing dog was a lawful

order. Olachea had neither a search warrant nor an arrest warrant to authorize his

actions. Furthermore, there is absolutely nothing in this record to suggest that

Olachea had probable cause or even any articulable suspicion that Garzon or any

other passenger on the bus was carrying drugs at the time the order was given.

The layover in Denver cannot be justified as a border stop because it occurred

nearly a thousand miles from an international border. It cannot be justified as an

established checkpoint stop because this stop singled out just bus #2192 and the

passengers on board that bus. It cannot be justified on the basis of safety

concerns, as are airport examinations, because this order was directed at

passengers on a bus who were neither driving nor in a position to endanger their

fellow passengers if they were carrying drugs. Further, Olachea’s order was

                                        -9-
directly contrary to the advice previously given to the passengers by the bus

driver that they could leave their personal belongings on board the bus during the

brief layover in Denver before the bus continued on to Chicago. Thus, the order

given by Olachea was, pure and simple, an unlawful order. No one has contended

otherwise, and on this record we have no doubt that it should be so characterized.

The order to Garzon to remove his personal belongings and the subsequent

warrantless search of his backpacks was in violation of Garzon’s Fourth

Amendment rights and the fruits of the search must be suppressed unless Garzon

abandoned his backpacks.

      Second, we emphasize 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. Indeed, he did not even stand silent when

asked if anyone claimed them because no such inquiry was ever directed at

Garzon or, so far as this record shows, was any such inquiry ever uttered within

Garzon’s hearing. Further, he never objectively evidenced an abandonment intent

by clear and unequivocal physical acts, such as throwing them away, giving them

to strangers, leaving them unguarded on public property or the like. To the

contrary, he left them in a secure overhead internal luggage rack just as he was

told he could by the bus driver. He was going to reboard that same bus after a

brief layover in Denver to continue his journey to Chicago, and he stayed in the


                                       - 10 -
bus terminal during the layover, which manifested his intent to reboard the bus

and to resume possession of his backpacks. Indeed, nothing in this record

suggests that he did not have continued access to the bus during the layover in

case he needed to get something out of his backpacks.

      The only act relied upon by the district court to find an objective

abandonment was Garzon’s failure to obey Olachea’s unlawful order to remove

his personal belongings from the bus and to parade them past a drug-sniffing dog.

So, the question presented in this case is a stark one: Is it so unreasonable to

disregard an officer’s unlawful order to remove personal belongings from a place

where they are entitled to be kept for the purpose of facilitating a drug search that

the act of refusal constitutes an objective abandonment of the property in

question? That is the question the district court answered in the affirmative, and

which we now answer in the negative. 2




      2
         There is no doubt that Olachea’s request to remove all luggage and to
parade it past the dog was an order. Indeed, when the mandatory nature of the
request was challenged by several of the passengers, Olachea was very clear that
they must remove all of their luggage. The district court found that this was a
mandatory order, and we do not find that conclusion to be clearly erroneous. If,
on the other hand, the statement by Olachea were deemed to be merely precatory,
Garzon’s position would be even stronger. In that case, the government would be
relying on a consensual encounter, and Garzon’s refusal to take his backpacks off
the bus as requested made it clear that he did not consent to such an encounter.
One certainly could not draw an objective inference of abandonment from a
person’s failure to follow a precatory request.

                                         - 11 -
      In Florida v. Royer, 460 U.S. 491 (1982), the United States Supreme Court

addressed a situation where a defendant was requested to take his luggage from an

airport concourse to an examination room approximately 40 feet away for the

purposes of a drug inspection. In that case, unlike here, the officers had

articulable suspicion to approach that particular defendant because he satisfied a

“drug courier profile.” In the examination area, the defendant “consented” to a

request to open his suitcase, at which time drugs were discovered. There, like

here, the state neglected to get a search warrant first. The Court held that this

was an illegal search, and it rejected the government’s argument that the

“consent” was voluntary because it had been induced by the government’s

conduct that was violative of the defendant’s Fourth Amendment rights. The

court observed,

      The person approached [by the police], however, need not answer
      any question put to him; indeed, he may decline to listen to the
      questions at all and may go on his way . . . he may not be detained
      even momentarily without reasonable, objective grounds for so
      doing; and his refusal to listen or answer does not, without more,
      furnish those grounds. (Emphasis added). Id. at 497-98.

In short, a citizen’s peaceful refusal to comply with an unlawful order cannot be

used to justify the subsequent search.

      In Florida v. Bostick, 501 U.S. 428 (1991), the Supreme Court addressed a

situation where the police boarded a bus and asked permission to search a



                                         - 12 -
passenger’s luggage. The court remanded for further findings on the

voluntariness of the defendant’s alleged consent, but in doing so reiterated,

      We have consistently held that a refusal to cooperate, without more,
      does not furnish the minimal level of objective justification needed
      for a detention or seizure. Id. at 437.

      The law is replete with situations where the factfinder is precluded from

drawing any adverse inferences from the fact that a person insists upon his or her

legal rights. For example, the fact that a defendant chooses to exercise his or her

Fifth Amendment right to remain silent will not sustain an inference of guilt.

Griffin v. California, 380 U.S. 609, 613-14 (1965). The same is true here. A

defendant cannot be deemed to be acting unreasonably and objectively to have

abandoned his or her property merely by refusing to comply with an unlawful

order. United States v. Hernandez, 7 F.3d 944, 947 (10th Cir. 1993) (“[A]n

abandonment is not voluntary when it results from a Fourth Amendment

violation.”); United States v. King, 990 F.2d 1552, 1564 (10th Cir. 1993) (same).

      The district court relied exclusively on United States v. Hernandez, 7 F.3d

944 (10th Cir. 1993). That case, however, is clearly distinguishable. There, the

United States border patrol agents boarded a Greyhound bus at a permanent

border check point. While questioning the passengers regarding citizenship, one

of the agents noted a backpack in an overhead storage compartment with no one

sitting beneath it. The agents asked several of the passengers seated nearby if the


                                        - 13 -
backpack belonged to them. When they all replied that it did not, the agent asked

several times in a loud voice to everyone on the bus whether any of them owned

the backpack. During this questioning, he scanned the entire bus and made eye

contact with each passenger. Once again, he received no affirmative response.

Finally, the agent picked up the backpack, and holding it in the air once again

asked everyone on the bus if anyone owned it. Again, he received no response.

At that point, the agent removed the backpack from the bus, subjected it to a dog

sniff, and ultimately searched it. It was undisputed there that the defendant was

on the bus during these inquiries, and declined to claim the backpack. As the

defendant stepped down from the bus, he explicitly denied ownership of the

backpack. From these facts, the court there found abandonment.

      Each of the salient facts in Hernandez are missing here. In the first place,

Hernandez was explicitly asked if he owned the backpack and his silence

reasonably could be construed as a denial. Garzon was never so asked. Second,

Hernandez explicitly disclaimed ownership. Garzon did not. Third, Hernandez

had placed the backpack in a different part of the bus from where he was sitting,

which was some evidence in that uncrowded bus that he intended to disassociate

himself from the backpack. Here, at the time of the search, the officers had no

idea who owned the backpack, or whether it was physically close to the owner

during the bus ride. Finally, in Hernandez, the setting was an inspection area of a


                                       - 14 -
permanent border patrol check point, where additional latitude is allowed to the

government for purposes of controlling immigration and drug smuggling. In the

case of Garzon, the stop occurred neither near the border nor at an established

check point.

      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.

For example, in United States v. Austin, 66 F.3d 1115 (10th Cir. 1995), the

defendant entrusted his luggage to a total stranger at the airport. The stranger,

concerned that it might contain a bomb, turned it over to airport security. We

held that releasing luggage to a total stranger constitutes abandonment, at least

until such time as it is recovered. In United States v. Jones, 707 F.2d 1169 (10th

Cir. 1983), the defendant threw away a knapsack while being chased by the

police. We held that the physical act of discarding the knapsack on to public

property where it could be picked up by anyone constituted abandonment. By

contrast, Garzon never verbally disclaimed an interest in his backpacks; he never

discarded the backpacks on to public property; and he did not entrust the

backpacks to complete strangers. Rather, he left the backpacks where the bus

company told him he had a legal right to leave them during the layover in Denver.

But for the police officer’s unlawful order, the backpacks were exactly where they


                                        - 15 -
should have been -- in the secure safekeeping of the bus company, in the internal

cabin of the bus, while he was nearby in the station awaiting the continuation of

his trip. 3

        We conclude that the district court’s ruling that Garzon objectively

abandoned his backpacks when he refused peacefully to comply with an unlawful

order to remove them from the bus and to submit them to a dog sniff was in error.

Therefore, we REVERSE, and REMAND for further proceedings consistent with

this opinion.




        The dissent postulates that there are two alternative explanations of
        3

Garzon’s leaving the bags on the bus, i.e., either he believed he had a right to do
so, or he decided to abandon the bags in the face of an order he believed was
lawful, but which in fact was not. The first explanation leads to a conclusion that
no abandonment occurred because, if Garzon correctly believed he had a right to
disregard the order, he never in fact relinquished his interest in the property.
       Likewise, the second explanation also leads to a conclusion that there was
no abandonment as a matter of law. Abandonment must be voluntary, and a
defendant’s response to an unlawful police order is not voluntary, regardless of
whether the defendant realizes that the order was unlawful. “‘Abandonment will
not be recognized when it is the result of prior illegal police conduct.’” United
States v. Ward, 961 F.2d 1526, 1535 (10th Cir. 1992) (quoting United States v.
Brady, 842 F.2d 1313, 1315 n. 7 (D.C. Cir. 1988)). If Garzon abandoned the
bags, he did so as a result of the officer’s illegal order, whether he knew the order
was illegal or not. The only fact the district court relied on in finding
abandonment was Garzon’s response to the unlawful police order. However, an
abandonment that results from unlawful police conduct is not cognizable as a
matter of law. United States v. Hernandez, 7 F.3d 944, 947 (10th Cir. 1993).
Thus, there was no abandonment here.
       We also note that the district court made a factual finding that Garzon did
not intend subjectively to abandon his property. That finding would seem to
preclude the second explanation postulated by the dissent.

                                        - 16 -
No. 96-1197, United States v. Garzon

Porfilio, J., dissenting:

      I must respectfully dissent. I think the court has announced a standard for

review of the issue of abandonment not previously adopted in this circuit.

Relying upon United States v. Austin, 66 F.3d 1115, 1118-19 (10th Cir. 1995),

the majority hypothesizes there is an objective component of abandonment that

we must review de novo. I do not find support for that bifurcation of the issue in

Austin.

      Indeed, in Austin, the court relied only upon the oft-reiterated principle

that abandonment is an issue of fact that is reviewed for clear error. Id. at 1117.

Moreover, the court’s analysis of the reasonability of the search in Austin

proceeded from that premise. As that analysis developed, the court viewed the

defendant’s privacy expectations which were necessary to support his Fourth

Amendment claim, and reminded such a claim cannot be asserted when abandoned

property is searched. From that point, the court reviewed the facts of the case and

determined though the defendant could assert a subjective belief that he had

retained his expectation of privacy, that belief was not objectively reasonable.

Yet, in no way did the court retreat from the premise that the district court’s

finding of abandonment is a question of fact reviewed for clear error. With all

due respect, I believe the majority takes the rationale of Austin a step beyond

which the case really goes, and I cannot join that effort.
      Moreover, because a district court’s finding of abandonment can only be

overturned for clear error, the very ambiguity of Mr. Garzon’s acts is the key to

resolution of the issue on appeal. Either Mr. Garzon chose to ignore Agent

Olachea’s directive to remove his baggage from the bus because he believed he

had a right to do so, or he abandoned it. Those are the only two choices faced by

the district court, and “[w]here there are two permissible views of the evidence,

the fact finder’s choice between them cannot be clearly erroneous.” Anderson v.

City of Bessemer City, 40 U.S. 564, 573-74 (1985). In this case, I believe the

district court correctly found Mr. Garzon manifested an objective intent to

abandon the two bags he left on the bus.

      Having heard Agent Olachea’s representation that passengers were going to

pass their hand luggage past a “narcotics detection dog,” Mr. Garzon took an

innocent backpack with him and left two drug filled packs behind. Although it is

true, as noted by the court, that Agent Olachea’s directive lacked validity, Mr.

Garzon obviously knew about the possibility of detection by the dog and left drug

filled luggage on the bus, taking with him only that which presented no threat to

his freedom. To me, this act begets only one inference: that he intended to

distance himself from the potentially incriminating backpacks in hopes their

contents would not be tied to him.




                                        -2-
      Although the agents could have made Mr. Garzon’s intent even more clear

by asking him about the ownership of the bags, I do not view their failure critical.

Given the state of the evidence, the district court had only two inferences to draw:

either Mr. Garzon left the bags in the bus because he thought he could do so, or

he abandoned them. The district court chose to draw the second inference, and

evidence supports the choice. We cannot eschew that result. I would affirm the

judgment.




                                        -3-
