United States v. Fulani ( 2004 )

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Precedential or Non-Precedential: Precedential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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"USA v. Fulani" (2004). 2004 Decisions. Paper 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
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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.
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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.
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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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