United States v. Liu Yiu-Pong

180 F.3d 957, 1999 U.S. App. LEXIS 11950, 1999 WL 404670
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 10, 1999
Docket98-4061
StatusPublished
Cited by34 cases

This text of 180 F.3d 957 (United States v. Liu Yiu-Pong) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Liu Yiu-Pong, 180 F.3d 957, 1999 U.S. App. LEXIS 11950, 1999 WL 404670 (8th Cir. 1999).

Opinions

BOWMAN, Chief Judge.

The United States appeals from the order of the District Court approving without further analysis the Report and Recommendation of the Magistrate Judge to whom pretrial motions had been referred, thereby sustaining Yiu-Pong Liu’s motion to suppress evidence and statements as illegally obtained. We reverse.

The facts of the case are essentially without dispute. On the morning of August 28, 1998, drug interdiction detectives Dan Wilson and George Barrios of the Kansas City, Missouri, Police Department boarded an Amtrak train en route from Los Angeles to Chicago at its regularly scheduled stop in Kansas City. As they made their way through the coach cars of the train, Barrios spotted a black suitcase in the overhead storage rack that ap[959]*959peared to be brand new, with a blank name tag and two luggage keys still attached to the handle of the bag. The suitcase fit the profile, Barrios believed, of a drug courier’s bag. Barrios lifted the suitcase and found it unusually heavy. Leaving the bag in the overhead rack, he felt the exterior and identified a solid object that he thought was a bundle of illegal drugs. Barrios moved the bag to the seat just behind the seat where Liu appeared to be sleeping and he began asking passengers if the bag belonged to any of them. When no one claimed the suitcase, Barrios moved it to the aisle and woke Liu to ask if the bag belonged to him. Liu, appearing nervous, grabbed the handle of the bag and said that it was his. Barrios identified himself as a police officer and asked Liu if he understood. Liu said that he did. Barrios then asked again if the suitcase in fact belonged to Liu, or if his suitcase might not be a similar-looking bag still in the rack directly over his seat. Liu partially unzipped the bag that Barrios had placed in the aisle and pulled out a piece of clothing, took a pair of sunglasses out of a side pocket, and confirmed that the bag was his.

At this point, Barrios asked Liu for permission to search the suitcase for narcotics, and he consented. As Barrios began to unzip the bag, Liu revoked his consent to search and zipped the bag back up. Barrios then asked Liu for his train ticket. At that, Liu walked past Barrios and off the train without responding to Barrios or attempting to take the bag with him. Barrios and Wilson permitted him to do so, but Barrios advised other members of the interdiction squad by radio, that a suspect who had refused a search of his luggage was leaving the train. Wilson followed Liu off the train, and heard him say he was looking for a woman. Liu began walking toward the terminal. His pace quickened and he largely ignored Wilson’s attempts to have a conversation. He then turned as if to return to the train. But as another detective approached, Liu turned back toward the terminal and started to run. Wilson seized him and handcuffed him.

In the meantime, Barrios took the bag to the common luggage area of the coach car and had a police dog sniff the suitcase for drugs. The dog alerted to the bag and Liu, already detained by Wilson, was arrested. In a conference room at the station, Liu consented to a search of his bag, which revealed a credit card embossing machine and magnetic decoding device (but no drugs). The detectives also found counterfeit credit cards that he had concealed in the waistband of his pants. He was charged in two counts with knowingly, and with intent to defraud, having control and custody of and possessing device-making equipment, in violation of 18 U.S.C. § 1029(a)(4), (c)(2). Liu filed a motion to suppress evidence and statements as illegally obtained.3 The motion was sustained in November 1998. The government appeals.

The Magistrate Judge recommended suppression of the evidence, concluding that Barrios had conducted an unconstitutional search of the bag by feeling it as he did without reasonable suspicion and that Liu was seized, when he “attempted to avoid” the detectives, without reasonable suspicion or probable cause, that is, illegally. Report and Recommendation at 11. The court also rejected the contention that Liu forfeited his right to challenge a search of his bag by abandoning it.

[960]*960We take up the abandonment issue first because our resolution of the question could make it unnecessary for us to decide the other issues on appeal. See United States v. Washington, 146 F.3d 536, 537 (8th Cir.1998). If Liu abandoned his bag, then the evidence obtained from the subsequent consensual search of the bag and the statements he made are not “fruit of the poisonous tree” but are admissible at trial. We review the District Court’s factual finding regarding abandonment for clear error. We will affirm the court’s decision that Liu did not abandon the suitcase unless the finding is “unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” United States v. Tugwell, 125 F.3d 600, 602 (8th Cir.1997) (citations to quoted cases omitted), cert. denied, — U.S. —, 118 S.Ct. 721, 139 L.Ed.2d 661 (1998).

When a person abandons his luggage, 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. See id. In determining whether property has been abandoned for Fourth Amendment purposes, the court must look to the totality of the circumstances, noting in particular two factors: whether the suspect denied ownership of the property and whether he physically relinquished the property. See United States v. Landry, 154 F.3d 897, 899 (8th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 836, 142 L.Ed.2d 692 (1999). Further, “[w]hether an abandonment has occurred is determined on the basis of the objective facts available to the investigating officers, not on the basis of the owner’s subjective intent.” Tugwell, 125 F.3d at 602.

It is without dispute that Liu never verbally denied ownership of his bag; indeed, he affirmed his ownership more than once. But he nevertheless may have abandoned the bag by physical relinquishment, even while claiming ownership, since a verbal disclaimer of ownership is not required for a finding of abandonment. See, e.g., California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (noting that drugs discarded by defendant while running from officer would be considered abandoned, if defendant at the time of abandonment was not seized within the meaning of the Fourth Amendment); Landry, 154 F.3d at 899 (holding that district court’s finding of abandonment was not clearly erroneous where defendant placed paper bag on the ground behind wheel of garbage dumpster and walked to pay phone fifty feet away). We conclude that the District Court clearly erred when it considered the facts relating to physical relinquishment and found that Liu did not abandon the bag.

The court noted three circumstances that it considered in reaching its decision.

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Bluebook (online)
180 F.3d 957, 1999 U.S. App. LEXIS 11950, 1999 WL 404670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-liu-yiu-pong-ca8-1999.