                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               AUG 27 1997
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                            No. 96-1247
 v.
                                                      (D.C. No. 95-CR-451-B)
                                                          (Dist. of Colo.)
 KEVIN ANTHONY JONES,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges.


      Defendant-Appellant Kevin Anthony Jones pled guilty to possession with

intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(iii) (1994 & Supp. 1997), but reserved the right to appeal the denial of

his suppression motion on the issue of whether the cocaine was discovered

pursuant to an illegal seizure. Jones was apprehended in a Denver bus terminal

after police found cocaine in a bag that he had left behind on a bus. Jones claims



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
he left the bag only after local police and DEA agents unlawfully seized the bus.

Reading all inferences in favor of the government, as we must on reviewing a

denial of a motion to suppress, United States v. Austin, 66 F.3d 1115, 1118 (10th

Cir. 1995), cert. denied, 116 S. Ct. 799 (1996), we find the bus was not

unlawfully seized. Thus we affirm.

Background

      On November 8, 1995, Jones was a passenger on a Greyhound bus traveling

from Los Angeles to Chicago, with a stopover in Denver. Jones was traveling

with another passenger, Michelle Fuston, and his final destination was Denver.

Shortly before the L.A./Chicago bus arrives in Denver, passengers are routinely

informed by the driver that all passengers, including those continuing on to

Chicago, must exit the bus in Denver. The bus is emptied so that it can be

serviced or replaced for the completion of the trip.

      When the bus arrived in Denver, it was met by three members of a drug

task force known as the “Transportation Unit”: Detective Donald Brannan of the

Denver Police; Agent Philip Hart of the DEA; and Detective David Kechter, a

canine handler with the Denver Police who had with him a narcotics detection

dog, Sintha.

      Agent Hart positioned himself outside of the bus, midway between the

driver and the back of the bus. Detective Kechter and Sintha also were positioned


                                         -2-
outside the bus, approximately six feet from the bus door. Detective Brannan

boarded the bus and made the following announcement over the public address

system:

             May I have your attention. I am Detective Brannan from the
      Denver police narcotics and the DEA. We are conducting a narcotics
      investigation. Outside the door you will see a plain clothes detective
      with a dog. It is a narcotics detection dog. It will not harm you. It's
      only trained in the detection of narcotics. Please do not attempt to
      pet the dog or push your carry-on luggage into the face of the dog.
      Just exit the bus in a normal fashion with your carry-on. Cargo
      which is contained in the lower portion of the bus may be claimed
      inside the terminal at the baggage counter. If you are going on to
      another location, your cargo will be automatically transferred by the
      Greyhound handlers. Are there any questions?

      Agent Hart's role in the operation was to observe passengers' reactions.

Before Detective Brannan began making his announcement, Hart saw a man, later

determined to be Jones, pull down a grey, carry-on bag from the overhead

compartment. During the announcement, Hart saw Jones try to push the bag back

into the compartment. Hart described Jones as "almost in a panic" while trying to

shove the bag back into the overhead. Unable to push the bag back into the

compartment, Jones placed it on a seat. He then disembarked from the bus,

carrying Fuston's travel bag, but leaving his own bag behind on the bus.

      Hart followed Jones and Fuston as they left the bus terminal and attempted

to hail a taxi. Before they could enter the cab, Hart approached them, identified

himself, and asked if he could speak with them. Both agreed.


                                        -3-
      While Hart was talking with Fuston and Jones, Detective Brannan searched

the empty bus. He found two bags: a garment bag and a grey, tweed, carry-on

bag. He removed the bags from the bus and gave them to Detective Jerry Snow

who had just arrived at the bus terminal. Brannan then joined Hart at the front of

the terminal. When he questioned Fuston about the grey bag, she identified it as

Jones' bag. Jones denied ownership of the bag. Upon searching the bag, the

officers discovered approximately one kilogram of cocaine.

      On appeal, Jones does not deny ownership of the bag, nor does he contest

the district court's finding that he abandoned the bag. However, he does contest

the lower court's finding that the abandonment was voluntary. According to

Jones, the abandonment was the result of an illegal seizure of the bus. Thus, it

was not voluntary, and any evidence obtained by searching the bag must be

suppressed.

Analysis

      In reviewing the denial of a motion to suppress, we review the evidence in

the light most favorable to the government. United States v. Austin, 66 F.3d

1115, 1118 (10th Cir. 1995), cert. denied, 116 S. Ct. 799 (1996). We accept the

district court’s factual findings unless they are clearly erroneous. Id. However,

we review de novo the ultimate determination of whether an unconstitutional

search or seizure has occurred. Id.


                                        -4-
                   [A] warrantless search and seizure of abandoned
             property is not unreasonable under the Fourth
             Amendment. It is not unreasonable because [w]hen
             individuals voluntarily abandon property, they forfeit
             any expectation of privacy in it that they might have
             had.
                   [However, a]n abandonment must be voluntary,
             and an abandonment that results from a Fourth
             Amendment violation cannot be voluntary.

Id. (internal citations omitted).

      The only issue in this case is whether the police activity on the bus, before

Jones abandoned his bag, constituted an unlawful seizure, such that his

abandonment of his bag was involuntary. Not all encounters between police

officers and citizens constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434

(1991). "Only when the officer, by means of physical force or show of authority,

has in some way restrained the liberty of a citizen may we conclude that a

'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

      The district court found that "the tenor and tone of Detective Brannan's

announcement was informative rather than confrontational and coercive." United

States v. Jones, 914 F. Supp. 421, 425 (D. Colo. 1996). The court also found that

Greyhound, rather than the officers, required passengers to leave the bus in

Denver. Id. at 422, 425. These findings are not clearly erroneous. Thus, it was

Greyhound, and not the officers, that "restrained the liberty" of Jones and his

fellow passengers.


                                         -5-
      In INS v. Delgado, 466 U.S. 210 (1984), the Supreme Court held that the

Fourth Amendment was not violated when agents questioned factory workers

concerning their citizenship status. Although the employees may not have felt

"free to leave" the factory, their movements were restrained by their employer

rather than by officers. Id. at 218. Thus, the Court concluded that the encounter

was not an unlawful seizure. Id. at 221. Similarly in Florida v. Bostick, 501 U.S.

429 (1991), the Court held that although passengers may not have felt "free to

leave" a bus that was about to depart, police did not necessarily seize the

passengers by questioning them because the passengers would not have felt "free

to leave" even in the absence of the officers. If the police activity itself was not

coercive the encounter would not constitute an unlawful seizure. 501 U.S. at 437.

In the case at bar, the travelers were required to leave the bus for reasons

independent of the agents' conduct, which was found by the district court not to

be coercive.

      Jones argues that the district court's finding that "all passengers are

required to deboard in Denver with their carry-on luggage," 914 F. Supp. at 422,

was clearly erroneous. He argues that this led to the court's erroneous conclusion

that "Detective Brannan did not control the manner in which the passengers left

the bus." Id. at 425. The testimony of the officers at the suppression hearing

supports the conclusion that passengers were told that if Denver was their final


                                          -6-
destination, as was the case with Jones, they must depart and take all of their

belongings with them. The only passengers allowed by the bus company to leave

their personal belongings inside the passenger compartment during the layover

were those who were continuing past Denver on the same bus. Even then,

passengers were told it was inadvisable to leave their belongings on the bus

during the layover because the safety of the belongings could not be assured.

Thus, the district court's finding of fact, insofar as it applied to Jones, was

supported by the record.

      In any event, the district court also concluded that the officers' conduct was

not coercive. 914 F. Supp. at 425 ("Detective Brannan's presence was not

threatening and his conduct did not convey a message that compliance was

required. The encounter remained consensual. . . .") Brannan's announcement:

"Please do not attempt to pet the dog or push your carry on luggage into the face

of the dog. Just exit the bus in a normal fashion with your carry-on," is

susceptible of the meaning Jones would like to attribute to it--that the officers

required passengers to take their luggage off the bus. However, it is equally

susceptible of another meaning--that the officers informed passengers who

intended to carry their luggage off that they could carry their luggage in a normal

fashion.




                                          -7-
      That a second passenger left luggage on the bus further supports the district

court's findings that passengers were not ordered to remove their luggage, as does

officer Brannan's testimony that he did not so order passengers. Jones himself

did not take his bag. While he argues that Brannan's order frightened him into

leaving his bag because he feared the narcotics would be detected, it is well-

established that the whether an individual would feel free to disregard a police

order is measured by the reaction of a reasonable innocent person to the officer's

conduct. See Bostick, 501 U.S. at 437-38. Thus any coercion that Jones

experienced as a result of his knowledge that he was transporting drugs is not a

factor in our Fourth Amendment analysis.

      We hold that the officers' conduct on the bus did not constitute an unlawful

seizure. We therefore AFFIRM the district court's denial of the motion to

suppress.



                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




                                        -8-
96-1247, United States v. Jones

LUCERO, Circuit Judge, dissenting

      I dissent.
