                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2004

USA v. Fulani
Precedential or Non-Precedential: Precedential

Docket No. 03-3835




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Recommended Citation
"USA v. Fulani" (2004). 2004 Decisions. Paper 655.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/655


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                    PRECEDENTIAL
                                           Attorneys for Appellant
   UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT           James V. Wade
                                        Federal Public Defender
                                        Daniel I. Siegel
              No. 03-3835               Assistant Federal Public Defender
                                        Patrick A. Casey (argued)
                                        Assistant Federal Public Defender
  UNITED STATES OF AMERICA,             Kane Professional Building, Suite 2C
                                        116 North Washington Avenue
                            Appellant   Scranton, PA 18503-1800

                   v.                      Attorneys for Appellee

     IBRAHIM HAMUD FULANI
                                              OPINION OF THE COURT

   On Appeal from the United States
        District Court for the
                                        GREENBERG, Circuit Judge.
    Middle District of Pennsylvania
      (D.C. Crim. No. 02-00049)                   This matter comes on before this
    Honorable Thomas I. Vanaskie,       court on an interlocutory appeal from an
             Chief Judge                order in the district court entered on
                                        August 21, 2003, granting defendant
                                        Ibrahim Hamud Fulani’s motion to
        Argued April 22, 2004           suppress physical evidence. The district
                                        court had jurisdiction pursuant to 18
 BEFORE: SCIRICA, Chief Judge, and      U.S.C. § 3231 and we have jurisdiction
    ROSENN and GREENBERG,               pursuant to 18 U.S.C. § 3731. We
          Circuit Judges                review the district court’s decision for
                                        clear error as to underlying facts, but
         (Filed: May 20, 2004)          exercise plenary review as to conclusions
                                        of law. See United States v. Riddick,
                                        156 F.3d 505, 509 (3d Cir. 1998). For
Thomas A. Marino                        the reasons stated herein, we will reverse
United States Attorney                  the district court’s order.
George J. Rocktashel (argued)
Assistant United States Attorney
Herman T. Schneebeli Building
240 West Third Street, Suite 316                  I. BACKGROUND
Williamsport, PA 17701-6465
          On February 21, 2002, at              his native language is Yoruba.1 When
approximately 3:15 p.m., Greyhound              Agent Paret asked him to produce his bus
Lines Bus No. 6466 en route from New            ticket, he produced a ticket that read
York to California made a scheduled stop        “Fulani, Ibrahim.” Agent Paret then
in Monroe County, Pennsylvania, at the          asked him if he had any luggage, and
Delaware Water Gap. With the driver’s           Fulani pointed to a plastic shopping bag
permission, two agents from the                 at his feet. Next, Agent Paret asked him
Pennsylvania State Attorney General’s           if that was his only bag, and Fulani said
Bureau of Narcotics Investigation,              it was. Agent Paret then specifically
Ronald Paret and Jeffrey P. Aster,              asked him if he had any luggage in the
boarded the bus. Both agents were               overhead rack, and Fulani gave a
dressed in plain clothes but wore visible       negative response.
badges. They carried concealed weapons
under their coats. Agent Paret made a                    After the agents finished
general announcement over the public            questioning all of the passengers, they
address system, identifying himself and         identified a suitcase that had been left
Agent Aster and stating that their              unclaimed. This bag was located almost
purpose was to investigate drug                 directly above Fulani’s seat. Agent Aster
trafficking. He advised the passengers          retrieved it and held it over his head,
that their “cooperation was appreciated,        asking all the passengers if anyone
but not required.”                              owned it. After 15 to 20 seconds elapsed
                                                without a response, Agent Aster removed
         Next, Agent Paret spoke                the bag from the bus. He then noticed a
individually to all 50 passengers on the        Greyhound tag twisted around the bag’s
bus, asking where they were headed,             handle. When he flipped the tag over, he
whether they had any luggage, and if            saw that the tag had a name on it. He
they would produce their bus tickets for        brought the bag back onto the bus and
inspection. All 50 passengers, including        again asked if anyone claimed it. Again,
Fulani, cooperated with the agents’             no one claimed the bag.
requests. During the entire duration of
the agents’ investigation, the bus doors                 Agent Aster then removed the
remained open and the aisle remained            bag from the bus and, along with Agent
unobstructed. Thus, passengers were             Paret, searched it. Inside the bag they
free to go on and off the bus. Fulani at        found five plastic bags suspected to
no point during the investigation exited        contain heroin, a Nigerian passport
the bus.

         Fulani was able to communicate           1
                                                   At Fulani’s suppression hearing, his
with the agents in English even though
                                                counsel stated that Fulani speaks English
                                                and that he did not need an interpreter.

                                            2
bearing Fulani’s name and photograph,             requests to search passengers on a bus do
and a receipt for an airline ticket bearing       not violate the Fourth Amendment so
Fulani’s name. Agent Paret placed the             long as “a reasonable person would have
bag in his car, and the agents reboarded          felt free to decline the officers’ requests
the bus to try to find its owner. First,          or otherwise terminate the encounter.”
they spoke with two passengers seated             Florida v. Bostick, 501 U.S. 429, 438,
across the aisle from Fulani and                  111 S.Ct. 2382, 2388 (1991) (finding
examined their bus tickets. Next, Agent           error in Florida Supreme Court’s per se
Paret requested to see Fulani’s bus ticket.       ruling that every encounter on a bus in
When Fulani produced his ticket, the              which consent from passengers to search
agents arrested him and removed him               their luggage is sought is a seizure).
from the bus.                                     Moreover, police officers conducting a
                                                  routine, suspicionless drug interdiction
          Subsequently, a grand jury              need not inform bus passengers that they
indicted Fulani on a single charge of             have the right to refuse consent to
distribution and possession with intent to        searches. See United States v. Drayton,
distribute in excess of 100 grams of              536 U.S. 194, 207, 122 S.Ct. 2105, 2114
heroin, in violation of 21 U.S.C. §               (2002).
841(a)(1). Fulani moved to suppress
physical evidence alleging that the search        B. Abandonment
of his bag violated the Fourth
Amendment. On June 20, 2003, the                            Although a person has a privacy
district court conducted an evidentiary           interest in the contents of his personal
hearing on the motion and on August 21,           luggage, see United States v. Place, 462
2003, filed a memorandum and order                U.S. 696, 707, 103 S.Ct. 2637, 2644
granting Fulani’s motion. The United              (1983), he forfeits that interest when he
States timely filed a notice of appeal on         abandons his property. See Abel v.
September 18, 2003.                               United States, 362 U.S. 217, 241, 80
                                                  S.Ct. 683, 698 (1960) (an individual has
                                                  no reasonable expectation of privacy in
                                                  abandoned property). Abandonment for
            II. DISCUSSION                        purposes of the Fourth Amendment
                                                  differs from abandonment in property
A. The Fourth Amendment                           law; here the analysis examines the
                                                  individual’s reasonable expectation of
         The Fourth Amendment                     privacy, not his property interest in the
guarantees “[t]he right of the people to          item. See United States v. Lewis, 921
be secure in their persons, houses,               F.2d 1294, 1302 (D.C. Cir. 1990). A
papers, and effects, against unreasonable         court must determine from an objective
searches and seizures.” Police officers’          viewpoint whether property has been

                                              3
abandoned. See United States v. Perkins,           they desired to do so.2 Second, Fulani
871 F. Supp. 801, 803 (M.D. Pa. 1995),             could have remained silent, and thus
aff’d, 91 F.3d 127 (3d Cir. 1996) (table);         have avoided giving the agents a basis to
see also United States v. Rem, 984 F.2d            search the bag. Instead, what Fulani did
806, 810 (7th Cir. 1993). Proof of intent          was disclaim ownership of every bag
to abandon property must be established            located in the overhead rack, including
by clear and unequivocal evidence. See             the one that bore his name on it. In so
United States v. Moody, 485 F.2d 531,              doing, Fulani abandoned ownership in
534 (3d Cir. 1973).                                his bag, effectively waiving his right to
                                                   bar its search.
C. Fulani Abandoned His Overhead Bag
                                                             Fulani manifested his intent to
          Following the Supreme Court’s            abandon his overhead bag in a clear and
rulings in Bostick and Drayton, police             unequivocal way. In addition to his
officers may request to search bus                 express statement to Agent Paret that
passengers, even without notifying them            none of the baggage in the overhead rack
of their right to refuse cooperation, so           belonged to him, after voluntarily
long as a reasonable person would have             cooperating Fulani implicitly denied
felt free to refuse cooperation. In                ownership of the bag on two occasions
Fulani’s case, he was told that he had the         when he remained silent in the face of
right to refuse cooperation, but he                Agent Aster’s questioning directed to the
nonetheless chose to cooperate. There is           entire bus. This silence was no mere
no evidence that a reasonable person in            passive failure to claim ownership, as the
his position would not have felt free to           district court concluded in reliance on
refuse cooperation; in fact, the bus doors         Stanberry v. Maryland, 684 A.2d 823
remained open and the aisle remained               (Md. 1996).
unobstructed during the entire
investigation.                                               We are satisfied that viewing the
                                                   facts in their totality, Fulani’s explicit
         In choosing to cooperate with             denial of ownership of the bag (when he
Agent Paret’s questioning, Fulani told             spoke to Agent Paret), coupled with his
him that he had one plastic bag by his             two implicit denials (when he remained
feet and no baggage in the overhead
rack. Fulani had other choices. First, he
could have said that he owned the                    2
                                                      Inasmuch as it does not appear that
overhead bag, thereby requiring the
                                                   the agents sought to search any other
agents to obtain his consent to search it if
                                                   bags we have no reason to believe that
                                                   they would have sought a consent to
                                                   search from Fulani if he originally had
                                                   identified the bag.

                                               4
silent in response to Agent Aster’s bus-          where defendant stated that bag was not
wide questioning), show Fulani’s clear            his and then consistently disclaimed
and unequivocal abandonment of his                ownership of it); Lewis, 921 F.2d at 1303
privacy interest in the overhead bag.3            (abandonment occurred where defendant
Thus, we hold that the district court erred       denied ownership of luggage in overhead
in suppressing the bag and its contents.          rack).
Accord United States v. Cofield, 272
F.3d 1303, 1307 (11th Cir. 2001)                            Moreover, we disagree with the
(abandonment resulted where in response           district court’s ruling that once the agents
to police officers’ requests for                  discovered Fulani’s nametag on the
permission to search two bags, defendant          unclaimed luggage, that they no longer
“removed the bags from his shoulders              could infer that the luggage was
and put them on the ground, denied that           abandoned. While the presence of a
the bags belonged to him, and attempted           nametag on one’s luggage may be an
to walk away from the area”); United              indicia of an expectation of privacy, the
States v. Springer, 946 F.2d 1012, 1017           Fourth Amendment protects only a
(2d Cir. 1991) (abandonment occurred              reasonable expectation of privacy, and
                                                  after a passenger refuses to claim
                                                  luggage with the nametag on three
  3                                               separate occasions after he cooperates at
    We reject the district court’s
                                                  least in part with the agents, as Fulani did
suggestion that in order for Fulani’s
                                                  here, he no longer has a reasonable
denial to have constituted an
                                                  expectation of privacy in his luggage.
abandonment, Fulani would have needed
                                                  We further reject Fulani’s argument that
to disclaim the bag expressly after the
                                                  he could not have abandoned his luggage
agents discovered the nametag. We see
                                                  without physically removing himself
no reason to impose this requirement
                                                  from it. The Fourth Amendment poses
where Fulani already had said that none
                                                  no such requirement; it merely asks
of the overhead bags belonged to him. In
                                                  whether the defendant has made a clear
fact, we think it very unwise -- and
                                                  and equivocal manifestation of his intent
potentially catastrophic -- to require that
                                                  to abandon his property.
each bus passenger be polled as to
whether he denies ownership of an
                                                           Finally, there is no evidence of
unaccounted for bag. The implications
                                                  any police misconduct in this case that
of such a ruling in the event that such a
                                                  might render Fulani’s abandonment
bag contains a time-sensitive explosive
                                                  involuntary. See Lewis, 921 F.2d at
device are hardly thinkable. Indeed, in
                                                  1302-03 (abandonment may be
considering this case one might wonder
                                                  involuntary, and thus invalid, where it
whether the agents would not have been
                                                  results directly from police misconduct,
remiss had they not searched the bag
                                                  such as an illegal search or seizure,
after no passenger would claim it.

                                              5
deceit, or, perhaps, a pattern of
harassment). In this case the agents
advised all the passengers, including
Fulani, of their right not to cooperate;
they left the bus doors open; and they left
the aisle unobstructed. Thus, there was
no evidence of a confining atmosphere
that might have rendered Fulani’s
abandonment involuntary. See, e.g.,
United States v. McDonald, 100 F.3d
1320, 1327-29 (7th Cir. 1997) (rejecting
argument that confining atmosphere on
bus due to the presence of three police
officers rendered abandonment invalid).




           III. CONCLUSION

         In sum, we hold that Fulani
abandoned his privacy interest in his
overhead bag, and accordingly the
agents’ search of that bag did not violate
his Fourth Amendment rights. Thus, we
will reverse the order of the district court
entered August 21, 2003, and will
remand the case to the district court for
further proceedings.




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