                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2235
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal From the United States
                                        * District Court for the
      v.                                * District of Nebraska.
                                        *
Edward Deshawn Hawkins,                 *     [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 17, 2004
                                Filed: November 30, 2004
                                 ___________

Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.
                         ___________

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
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


      1
       The Honorable Thomas M. Shanahan, United States District Court for the
District of Nebraska.

                                         -2-
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.


      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.

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




      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.

                                        -4-
