United States v. Fulani

• Court: Court of Appeals for the Third Circuit
• Decided: May 20, 2004
• Docket: 03-3835
• Status: Published

Opinion

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USA v. Fulani Precedential or Non-Precedential: Precedential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

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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.