                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                     PUBLISH
                                                                      September 2, 2014
                       UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

 v.                                                 No. 13-4118

 PETER ANTONIO TUBENS,

        Defendant-Appellant.




                     Appeal from the United States District Court
                               for the District of Utah
                          (D.C. No. 2:11-CR-00579-TC-1)


Submitted on the briefs:

Robert M. Gamburg, Philadelphia, Pennsylvania, for Defendant-Appellant.

Jonathan Hornok, Law Student (Diana Hagen, Assistant United States Attorney, with him
on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.


Before HARTZ, EBEL, and GORSUCH, Circuit Judges.


EBEL, Circuit Judge.
       After methamphetamine was recovered from his carry-on luggage aboard a

Greyhound bus, Defendant-Appellant Peter Tubens was charged with possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Tubens

pled not guilty and filed a motion to suppress the evidence against him, asserting that it

had been obtained in violation of the Fourth Amendment. Following an evidentiary

hearing and full briefing by both parties, the district court issued a written decision

denying the motion. Tubens proceeded to trial, where he was found guilty by a jury of

his peers, and subsequently sentenced to 240 months’ imprisonment to be followed by

sixty months’ supervised release. Tubens now appeals, reasserting his claim that the

evidence was obtained in violation of the Fourth Amendment. Exercising jurisdiction

under 28 U.S.C. § 1291, we now AFFIRM.1

I.     BACKGROUND

       On the morning of June 7, 2011, Utah Highway Patrol Sergeant Steve Salas and

Emery County Sherriff Deputy Blake Gardner were conducting drug interdiction

activities along Interstate 70 in Green River, Utah. The officers were accompanied by

their Belgian Malinois, Duke and Niko, both of whom are state-certified narcotics dogs

trained to detect the odor of marijuana, cocaine, heroin, and methamphetamine. In line


       1
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties= request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This case is therefore
ordered submitted without oral argument.



                                              2
with their usual interdiction routine, the officers followed a Greyhound bus into the West

Winds Truck Stop, where the bus was scheduled to stop for a twenty-minute passenger

break. While the officers were pulling into the truck stop, a second Greyhound bus also

arrived for its scheduled passenger break. After obtaining consent from the respective

bus drivers, Sergeant Salas deployed Duke into the luggage compartment of the first bus

while Deputy Gardner did the same with Niko in the second bus.

       When Duke did not alert to anything in the first bus, Sergeant Salas began to lead

Duke back to his patrol car. Deputy Gardner headed them off, however, and asked

Sergeant Salas to deploy Duke into the luggage compartment of the second bus, which

Niko had just finished searching. Deputy Gardner did not point Duke or Sergeant Salas

to any particular area of the second bus. Duke was deployed and almost immediately

alerted to a black canvas suitcase: although “he never gave a final response by

scratching,” “he wouldn’t leave the bag for four to five seconds, closed mouth, intense

sniffing,” Vol. 2 at 27. Sergeant Salas would later testify that it was a “strong alert,”

which was telling him that there was “narcotic odor . . . inside that bag.” Id. at 48. He

informed Deputy Gardner of Duke’s alert, and Deputy Gardner relayed that Niko had

alerted to the same suitcase. The officers removed the suitcase and, after locating its

Greyhound identification tag, determined that it belonged to Defendant Peter Tubens,

who had a final destination of Philadelphia.

       Once all of the passengers had reboarded the bus, Sergeant Salas, who was in

uniform, boarded the bus, stood by the driver’s seat, and said “in a sufficiently loud but

                                               3
non-threatening voice,” Vol. 1 at 57, “I’m looking for Mr. Tubens. Is there a Mr. Tubens

in the bus? I’m looking for Mr. Tubens. Any passenger with the name of Mr. Tubens,

please come forward.” Vol. 2 at 33. The passengers on the bus were “very quiet” when

Sergeant Salas spoke and, according to the district court, “anyone on the bus who did not

have a hearing disability would have heard Sergeant Salas’s request.” Vol. 1 at 57. Yet,

no one responded, so Sergeant Salas asked Deputy Gardener to board the bus to help him

locate Tubens. Once Deputy Gardner was onboard, Sergeant Salas asked the passengers

to get out their bus tickets, and he and Deputy Gardner proceeded to inspect tickets until

Sergeant Salas located Tubens, who had been on the bus the entire time. When Sergeant

Salas asked Tubens why he had not responded earlier, Tubens claimed that he had not

heard his name being called. Sergeant Salas asked Tubens to exit the bus with the

officers, and Tubens obliged.

       Once outside, Tubens consented to a search of the suspect suitcase, which he

confirmed belonged to him. While Deputy Gardner was searching the suitcase, Sergeant

Salas asked Tubens if he had any carry-on luggage, testifying later that his experience

had taught him that drug traffickers often attempt to avoid detection by moving their

stash between their checked and carry-on luggage. Tubens asserted that he did not have

any additional items, but with Tubens’ earlier evasiveness fresh in his mind, Sergeant

Salas refused to take Tubens’ word for it and boarded the bus for further investigation.

Returning to the area where he had found Tubens, Sergeant Salas discovered a square

case and a paper sack on the luggage rack directly above Tubens’ seat. As he went to

                                             4
remove the items, the passenger occupying the seat immediately in front of Tubens’ seat

informed Sergeant Salas that she had earlier witnessed Tubens attempting to push

something else down the luggage rack and out of his immediate proximity. Suspecting

that he had not yet located all of Tubens’ carry-on luggage, Sergeant Salas asked the

passengers remaining on the bus to place all of their belongings on their laps so he could

more easily identify who owned what. While the passengers were complying with that

request, Sergeant Salas exited the bus and asked Tubens if either the paper sack or the

canvas case belonged to him. Although Tubens had initially denied having any carry-on

luggage, he admitted that both items were indeed his and consented to their search.

Neither the paper sack nor the canvas case (which turned out to be a CD case) contained

any contraband. At that point, Deputy Gardner informed Sergeant Salas that his search of

Tubens’ checked-suitcase had proved similarly unfruitful.

       Following up on his earlier request, Sergeant Salas then reboarded the bus to see if

any unclaimed items remained in the overhead luggage rack. Sure enough, upon

reboarding, he immediately noticed a black bag close to where Tubens had been sitting.

Sergeant Salas held up the bag so all of the passengers could see it and asked if it

belonged to anyone on the bus. When no one claimed it, Sergeant Salas took it off the

bus and asked Tubens if it belonged to him. Tubens asserted unequivocally that the bag

was not his. After explaining that the bag had been legally abandoned because no one

had claimed it, Sergeant Salas asked the bus driver for his consent to search the bag. The

bus driver replied that, as long as no one was claiming it, the officers were free to search

                                              5
it. A subsequent search of the bag yielded two cylinder-shaped packages containing

methamphetamine and two prescription pill bottles with Tubens’ name on them, and

Tubens was arrested. Although Tubens was arrested approximately one hour after the

bus made its scheduled stop, only twenty minutes or so passed between the time of

Tubens’ identification and his arrest.

II.    DISCUSSION

       Finding that Tubens had “express[ly] and unequivocal[ly] disclaime[d]”

ownership in the suspect carry-on bag, the district court denied Tubens’ motion to

suppress the evidence recovered therefrom on the ground that he had voluntarily

abandoned the bag during a lawful detention based on reasonable suspicion. Vol. 1 at

65. In so holding, the district court rejected Tubens’ assertion that the detention became

tainted after a search of his checked luggage revealed no contraband: according to the

court, “despite the fact that no drugs were found in [that] suitcase, other circumstances,”

including Tubens’ failure to identify himself and his inconsistent answers about his carry-

on luggage, “maintained, even heightened, Sergeant Salas’s reasonable suspicion.” Id. at

63.

       Viewing the evidence in the light most favorable to the government and accepting

the district court’s findings of fact unless clearly erroneous, see United States v. Polly,

630 F.3d 991, 996 (10th Cir. 2011), our de novo review compels us to agree. For the

reasons developed below, therefore, we affirm the district court’s denial of Tubens’

motion to suppress.

                                              6
          a. The suspect carry-on bag was discovered during a lawful investigation

       Tubens contends his abandoning the carry-on was not voluntary, and thus that

suppression is required, because his disclaimer of ownership was precipitated by a

violation of his Fourth Amendment rights. Although he separately challenges as

unconstitutional most of the component parts of the officers’ investigation, the unifying

theme throughout his brief is that the officers lacked the legal justification necessary to

investigate as they did. We disagree: even assuming, as the district court did, that the

officers’ investigation of Tubens escalated from a consensual encounter, requiring no

justification, to an investigative detention, requiring reasonable suspicion of criminal

activity, see United States v. White, 584 F.3d 935, 945-46 (10th Cir. 2009), that standard

was more than satisfied under the circumstances of this case, where two drug dogs

independently alerted to Tubens’ checked suitcase, and he responded to the officers’

subsequent investigation in an evasive and inconsistent manner. Under the strictures of

Terry v. Ohio, 392 U.S. 1 (1968), in other words, no Fourth Amendment violation

precipitated Tubens’ abandonment of the suspect carry-on because the officers’

investigation was both “‘justified at its inception’” and “‘reasonably related in scope to

the circumstances which justified the interference in the first place.’” United States v.

Fonseca, 744 F.3d 674, 680 (10th Cir. 2014) (quoting Terry, 392 U.S. at 20).

       Despite Tubens’ protestations to the contrary, there can be no question that his

detention was justified at its inception. No justification was needed to run the dogs

through the bus’s luggage compartment, see, e.g., United States v. Ludwig, 10 F.3d 1523,

                                              7
1527 (10th Cir. 1993) (“[S]uch random and suspicionless dog sniffs are not searches

subject to the Fourth Amendment.”), and the positive alerts from Niko and Duke more

than justified the officers in removing the suitcase, locating its owner, and detaining him

for further investigation. See United States v. Williams, 726 F.2d 661, 663 (10th Cir.

1984) (“[A] drug sniffing dog’s detection of contraband in luggage itself establish[es]

probable cause, enough for the arrest, more than enough for the stop.” (emphasis added,

internal quotation marks omitted)); accord United States v. Lopez, 518 F.3d 790, 799

(10th Cir. 2008) (“[T]he level of suspicion required for reasonable suspicion is

‘considerably less’ than proof by a preponderance of the evidence or that required for

probable cause.”). After all, “even when officers have no basis for suspecting a particular

individual, they may generally ask questions of that individual, ask to examine the

individual's identification, and request consent to search his or her luggage.” Florida v.

Bostick, 501 U.S. 429, 434-35 (1991) (emphasis added). Tubens asserts otherwise,

making much of the fact that the dogs “alerted” but did not give a final “indication” to his

checked bag—though he himself interposes the two terms throughout his brief. See, e.g.,

Aplt. B. at 18. As this court recognized in United States v. Parada, however, although

there are indeed factual differences between the two signals, those differences are

irrelevant to the Fourth Amendment analysis, and a positive alert alone has long been

sufficient to imbue officers with the probable cause necessary to justify an immediate

search, or even an arrest. 577 F.3d 1275, 1282 (10th Cir. 2009). Armed with probable

cause that Tubens was transporting drugs, therefore, the officers in this case thus

                                             8
reasonably exercised the lesser-included powers of boarding the bus, forcing Tubens to

identify himself, and asking him to exit the bus for questioning.

       Although Tubens attempts to use this heightened level of suspicion against the

officers, by asserting that they were required to search his bag before they boarded the

bus for further investigation—apparently on the implicit, and probably incorrect,

assumption that an unfruitful search at that point would have required the officers to

terminate the encounter—it is beyond dispute that the Fourth Amendment does not so

micromanage the on-the-spot decisions of experienced law enforcement officers. The

Supreme Court made as much explicit twenty-five years ago in United States v. Sokolow

when it held that “[t]he reasonableness of the officer’s decision to stop a suspect does not

turn on the availability of less intrusive investigatory techniques.” 490 U.S. 1, 11 (1989).

Needless to say, an officer likewise does not act unreasonably when he foregoes more

intrusive, albeit justified, actions and chooses instead to proceed more cautiously.

       Nor is there any doubt that the officers’ subsequent actions were “‘reasonably

related in scope to the circumstances which justified the interference in the first place.’”

Fonseca, 744 F.3d at 680 (quoting Terry, 392 U.S. at 20). Although Tubens was initially

detained on suspicions that he was trafficking drugs in his checked baggage, “common

sense and ordinary human experience,” id. (internal quotation marks omitted), strongly

suggested that he was probably carrying additional luggage or personal items with him on

the bus as well—he was, after all, on a cross-country bus trip to Philadelphia. While

Tubens maintained that he was traveling without any carry-on luggage, Sergeant Salas

                                              9
acted reasonably in boarding the bus and seeing for himself: not only had Tubens just

exhibited his propensity to be less than completely forthcoming, but Sergeant Salas’

training and experience also instructed that drug traffickers often move their stash

between their checked and carry-on bags in an effort to avoid detection. See, e.g., United

States v. Arvizu, 534 U.S. 266, 273 (2002) (“[O]fficers [must be allowed] to draw on

their own experience and specialized training to make inferences from and deductions

about the cumulative information available to them that ‘might elude an untrained

person.’”). And once Sergeant Salas discovered the paper sack and CD case above

Tubens’ seat, and was further informed that Tubens had been seen pushing something

else down the luggage rack, it was eminently reasonable for Sergeant Salas to ask the

passengers remaining on the bus to place of all of their personal belongings on their laps

so he could identify who owned what.

       Finally, even though Sergeant Salas subsequently exited the bus and learned that

no contraband was contained in Tubens’ paper sack, CD case, or checked bag, he acted

reasonably in reboarding the bus one last time to ensure that all of Tubens’ personal

belonging had been recovered. In asserting that the negative searches should have

dispelled the officers’ suspicions of drug trafficking, Tubens completely ignores the

intervening events just documented. By the time the searches had proved unfruitful, for

example, Tubens had failed to come forward when requested, had lied about having

personal items on the bus, and had been accused by another passenger of attempting to

conceal his carry-on luggage. See United States v. Wood, 106 F.3d 942, 947 (10th Cir.

                                            10
1997) (“[I]nconsistencies in information provided to the officer during the traffic stop

may give rise to reasonable suspicion of criminal activity”). Inferring from the totality of

the circumstances that Tubens likely had another bag on the bus, Sergeant Salas was thus

justified in reboarding the bus and continuing his investigation. Not only was it a logical

follow-up on the request that he had just made to the other passengers, but it also did not

significantly extend the duration of the detention. Indeed, there was nothing

unreasonable about the duration of Tubens’ detention more generally: although Tubens

contends it lasted almost an hour, the district court found that only twenty minutes or so

passed from when Tubens was located to when he was arrested. See United States v.

Sharpe, 470 U.S. 675, 688 (1985) (“We reject the contention that a 20-minute stop is

unreasonable when the police have acted diligently and a suspect’s actions contribute to

the added delay about which he complains.”).

          b. Tubens voluntarily abandoned the suspect carry-on bag and thus lacks
             standing to challenge its search

       In light of the fact that Tubens expressly stated that the suspect carry-on bag was

not his, the district court did not clearly err in finding that Tubens had voluntarily

abandoned the bag. See United States v. Denny, 441 F.3d 1220, 1228 (10th Cir. 2006).

Although Tubens was under investigation when he disclaimed his ownership interest in

the bag, the foregoing analysis makes clear that no Fourth Amendment violation

precipitated that abandonment, and it is well-settled that “police pursuit or investigation

at the time of abandonment of property, without more, does not of itself render

abandonment involuntary.” United States v. Hernandez, 7 F.3d 944, 947 (10th Cir.
                                              11
1993). Having voluntarily abandoned the bag in which the methamphetamine was found,

therefore, Tubens lacks standing to challenge its subsequent search, and we thus affirm

the district court’s denial of his motion to suppress. See id. (“A warrantless search and

seizure of abandoned property is not unreasonable under the Fourth Amendment.”).

       AFFIRMED.




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