United States v. Eden ( 2006 )

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 06a0421n.06
Filed: June 22, 2006
Case No. 04-6329
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE UNITED
Plaintiff-Appellant, ) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
v. ) TENNESSEE, NASHVILLE DIVISION
)
TERRI LEIGH EDEN, )
)
Defendant-Appellee. )
BEFORE: RYAN and COLE, Circuit Judges; and SARGUS, District Judge.*
SARGUS, District Judge. In the early morning hours of June 13, 2004, the police in
Mineral County, Montana conducted a routine traffic stop of Defendant-Appellee, Terri Leigh Eden,
for a speeding violation. Upon noting Eden’s name did not appear on the rental car agreement that
she displayed, the police contacted the rental car agency and requested confirmation as to whether
Eden was an authorized driver. Thereafter, the police officer issued a traffic citation, and the
transaction for which Eden was pulled over was completed. The police then further detained Eden
until more information could be obtained regarding whether she was an authorized driver of the
rental vehicle. Learning that she was not, and receiving further instructions from the rental car
company that it wanted the car towed, the police told Eden to remove all of her belongings from the
rental vehicle and offered to transport her the next town, with the understanding that all items she
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.
intended to bring into the police car would be searched. The officer twice told Eden that she was
free to leave and twice told her to gather her belongings from the vehicle. Eden refused to consent
to a full search of the car. Ultimately, Eden collected a purse, mobile phone and rolling suitcase
from the passenger portion of the vehicle, declined to have the police transport her and began
walking down the highway. The police thereafter received consent from the rental car company to
conduct a search, opened the trunk and discovered a suitcase full of cocaine.
Eden filed a motion to suppress, arguing that the search was illegal. The government
countered that Eden had abandoned the suitcase and thus, the search was not subject to Fourth
Amendment scrutiny. The district court determined that Eden had not abandoned the suitcase and
therefore granted the motion to suppress. This appeal by the government followed.
For the reasons that follow, we conclude that Eden neither voluntarily abandoned nor
affirmatively disclaimed her legitimate privacy interest in the suitcase. Accordingly, the decision
of the district court is AFFIRMED.
I.
On June 13, 2004, at approximately 1:50 A.M., Officer John Polich with the Mineral County,
Montana Sheriff’s Department, stopped Defendant-Appellee, Terri Leigh Eden, after measuring the
speed of her car with radar at eighty-nine miles per hour in a seventy-five mile per hour zone. At
the request of Officer Polich, Eden produced her driver’s licence and a rental car agreement
executed between National Car Rental and Darrel Eden of Kirkland, Washington. Officer Polich
asked Eden for the identity of the male on the rental agreement, to which she responded that he was
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her husband.1 Upon further questioning by Officer Polich, Eden indicated that her husband had
rented the vehicle and that he was in Missoula, Montana visiting a relative. Eden said that she had
left Kirkland, Washington two nights earlier, stayed in Spokane, and was driving to Missoula that
night to meet her husband.
Officer Polich returned to his patrol car to request a license and registration check and a
criminal history report on Eden. Officer Polich also requested backup because he intended to ask
Eden for permission to search the vehicle. Officer Michael Johnson responded to the scene shortly
thereafter.
As he waited for more information from the dispatcher regarding the status of Eden’s driver’s
licence, Officer Polich returned to the vehicle and informed Eden that she would have to post a
$40.00 cash bond for the speeding violation. Eden responded that she would be able to post the
required bond. Officer Polich returned to his patrol car to complete the citation.
Officer Polich asked the dispatcher to call National Car Rental to determine whether Eden
was authorized to drive the vehicle. He had not yet received information regarding the status of
Eden’s driver’s license.
The dispatcher then reported to Officer Polich that Eden had been arrested for auto theft and
unauthorized use of a vehicle. A few minutes later, the dispatcher advised Officer Polich that the
rental car company had indicated that Eden was not an authorized driver of the vehicle. Officer
Polich then asked the dispatcher to contact National Car Rental again to determine how it wanted
to dispose of the vehicle.
1
The subsequent investigation revealed that Eden’s father was the male identified on the
rental agreement. At the time the car was rented, Eden accompanied her father to the rental car counter
and conferred with the rental staff. Although his credit card was used, Eden’s father sat on a bench while
his daughter completed the entire transaction and rented the vehicle.
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Officer Polich then asked Eden to exit the vehicle so that he could explain the speeding
violation and to bring with her the $40.00 roadside bond. He continued to ask Eden questions
regarding her address and telephone number as he waited for confirmation from the dispatcher.
Officer Polich issued the citation and took the $40.00 bond. Although he did not articulate it to
Eden, at some point prior to issuing the citation, Officer Polich was satisfied that the car was not
stolen. Although the traffic-citation transaction was then complete, Officer Polich further detained
Eden explaining that there was a problem with the rental car.
The dispatcher contacted Officer Polich and advised him that the rental car company wanted
the vehicle towed. Officer Polich then advised Eden that the car would be towed, but informed her
that she was “free to leave.”2 Officer Polich then asked Eden for her consent to search the vehicle
for drugs or cash. Officer Polich informed Eden that, while it was her right to say no to the search,
the car would be towed in any event. Although Eden suggested that her husband would need to give
consent to the search of the vehicle, Officer Polich stated that she must provide the consent because
she was the one driving the car. Eden refused to consent.
Eden asked Officer Polich for a ride to the next town. Officer Polich agreed to provide her
with transportation, but said that he would have to search her and her bags for his safety. During
this exchange with Officer Polich, Eden asked if she could have access to her cellular telephone to
which Officer Polich responded: “You can get your phone. You can get whatever you need. But
like I said, before you come into my car I’m going to need to check your purse and everything.”
Eden walked back to the rental car accompanied by both police officers. She entered the car
2
The parties both agree that Officer Polich first indicated to Eden that she was free to
leave at 2:11 A.M., approximately 24 minutes after the initial stop.
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and closed the door while the officers waited outside. Officer Polich noticed several empty alcohol
bottles in plain view on the inside of the vehicle. He asked Eden to step out again, conducted an
abbreviated field sobriety test and determined that she was not impaired. Officer Polich then said
“[b]asically we’re just waiting for the tow, so why don’t you just go and just grab your stuff real
quick and we’ll get going.”
Eden removed her purse, cellular phone and a small rolling suitcase from the passenger
compartment of the vehicle. As she removed the rolling suitcase from the back seat, Officer Polich
again stated that he would need to search everything that she was removing from the vehicle if she
was to ride in the patrol car. Eden then stated that she did not want a ride. Officer Polich advised
Eden that the nearest town was seven miles away and that the closest taxi was forty-five minutes
away. Officer Polich again told Eden that she was “free to leave anytime” and that the decision to
ride with him was up to her. Eden then declined to ride in his patrol car, and began walking down
the highway. Officer Johnson had already taken the keys to the vehicle by this point.
Shortly thereafter, Officer Polich received consent to search the vehicle from the rental car
company. Officer Polich opened the trunk of the rental car and discovered a suitcase. Both officers
lifted the suitcase and noticed that it was heavy. Officer Polich opened the suitcase and found
twenty-three kilograms of cocaine. He then drove down the highway and arrested Eden, who was
still walking.3
3
As set forth by the district court, the following is a brief chronology of events:
• 1:47 A.M. - Polich stop Eden for speeding.
• 1:50 A.M. - Polich calls Eden’s driver’s licence into dispatch.
• 1:53 A.M. - Polich said Eden would be cited and needed to pay $40 cash bond.
• 1:57 A.M. - Polich asks the dispatcher to check authority of Eden to drive with rental company.
• 1:59 A.M.- Polich learns of some indication of a criminal history dealing with a stolen car.
• 2:04 A.M. - Polich asks the dispatcher to determine how the rental car company would like to
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Eden was indicted along with two other co-defendants for conspiracy to possess with the
intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846. Eden filed a
motion to suppress. Eden argued that the officer did not have a reasonable suspicion that she was
engaged in illegal activity to justify continued detention once the purpose of the traffic stop was
completed. Further, Eden maintained that the police did not have valid consent to search the trunk
of the vehicle and that by searching it without legal authority, Office Polich infringed on her
legitimate expectation of privacy in violation of her right to be free of unreasonable searches under
the Fourth Amendment of the United States Constitution. The United States opposed the motion,
arguing that the evidence of the cocaine in the trunk should not be suppressed because Eden
voluntarily abandoned the property when she left it in the vehicle after two statements by the police
that she could collect all of her belongings.
Following a hearing, the district court granted Eden’s motion. With respect to the issue of
whether Eden had abandoned the suitcase in the back of the rental vehicle, the district court found
that Eden had a privacy interest in both the car and the suitcase. The district court found that she
did not abandon the vehicle and concluded that it had been seized by the police.
Specifically, with respect to Eden’s interest in the rental car, the district court found that (1)
Eden was a licensed driver; (2) Eden was able to present the rental agreement and possessed
sufficient information about the vehicle; (3) Eden’s father, who was the authorized driver in the
rental agreement, gave Eden the car with his permission to drive it; and (5) Eden had a business
relationship with the rental company. See United States v. Smith, 263 F.3d 571, 588 (6th Cir.
dispose of the car.
• 2:05 A.M. - Eden instructed to get out of the car and police ask if she can post the $40 bond.
• 2:10 A.M. - Speeding-citation transaction complete; Eden told the car would be towed.
• 2:11 A.M. - Eden told she is free to leave for the first time.
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2001)(analyzing privacy interests in rental vehicles for purposes of Fourth Amendment standing,
and directing courts to consider such factors as whether the driver is licensed, has knowledge of the
rental agreement and whether the defendant-driver is operating the vehicle with the permission of
the authorized driver on the agreement). As such, the district court found that Eden had a legitimate
expectation of privacy in the rental vehicle and that the police had seized it. The United States does
not challenge these findings or the district court’s application of Smith. It raises the single issue of
whether Eden abandoned the suitcase located in the trunk.
As to the suitcase, the district court concluded that the record did not reflect that Eden
verbally disavowed her ownership of the suitcase. The court ultimately found that Eden’s conduct
did not rise to the level of demonstrating a knowing, intelligent waiver of all ownership or her
privacy interest in the suitcase simply because the car was being towed. The United States appealed
the decision of the district court to suppress the evidence exclusively on this issue of abandonment.
The government does not challenge any other conclusions reached by the district court.
II.
This Court is vested with jurisdiction pursuant to 18 U.S.C. § 3731 which provides that the
courts of appeals have jurisdiction over appeals from “a decision or order of a district court
suppressing or excluding evidence.” The question whether property has been abandoned is a mixed
question of law and fact. The district court’s factual findings are examined for clear error, while the
legal determination of abandonment is reviewed de novo. United States v. Oswald, 783 F.2d 663,
665-66 (6th Cir. 1986). In reviewing the factual findings, the Court considers the evidence “in the
light most likely to support the district court’s decision.” United States v. Guimond, 116 F.3d 166,
169 (6th Cir. 1997) (internal quotations omitted); see also Smith, 263 F.3d at 581 (articulating
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standard of review for district court decisions to suppress evidence).
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III.
The Fourth Amendment to the United States Constitution provides that “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .” U.S.
Const. amend. IV. The Fourth Amendment protects both the interest in retaining possession of
property and the interest in maintaining personal privacy. United States v. Sanders, 719 F.2d 882,
886 (6th Cir. 1983)(citing United States v. Place, 462 U.S. 696, 716 (1983)(Brennan, J., concurring)).
In this case, the defendant’s interest in retaining possession of personal property is implicated by
the seizure of the suitcase in the trunk of the rental car.
The Supreme Court has “affirmed that a person possesses a privacy interest in the contents
of personal luggage that is protected by the Fourth Amendment.” Place, 462 U.S. at 707. “[A]
suitcase or briefcase is property of a kind in which the owner . . . normally has a strong expectation
of privacy . . . .” Oswald, 783 F.2d at 666. This expectation, however, may be surrendered. Id.
“‘[O]ne who disclaims any interest in luggage thereby disclaims any concern about whether or not
the contents of the luggage remain private.’” United States v. Tolbert, 692 F.2d 1041, 1045 (6th Cir.
1982)(quoting United States v. Miller, 589 F.2d 1117, 1131 (1st Cir. 1978)).
Generally, neither a warrant nor probable cause is required to seize and search property that
has been abandoned. Abel v. United States, 362 U.S. 217, 241 (1960); Oswald, 783 F.2d at 666.
This exception to the warrant requirement exists because the protections of the Fourth Amendment
extend only to places and items for which a person has a reasonable expectation of privacy; no
person can have a reasonable expectation of privacy in an item that she has abandoned. Hester v.
United States, 265 U.S. 57, 58 (1924). The term abandonment, as employed in this context, does
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not refer to traditional notions of property law:
The concept of abandonment . . . is a Fourth Amendment issue and the “capacity to
claim the protection of the Fourth Amendment depends not upon a property right in
the invaded place but upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded place.”
Tolbert, 692 F.2d at 1044 (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)).
In determining whether property has been abandoned, the Court analyzes whether the
individual challenging the seizure retained a legitimate expectation of privacy in the property at the
time it was seized. Rakas, 439 U.S. at 143. In this case, then, in order to determine whether the
police violated Eden’s legitimate expectation of privacy by searching the suitcase located in the
trunk of the rental vehicle, the Court must assess whether she exhibited a legitimate expectation of
privacy. The inquiry into whether Eden harbored a legitimate expectation of privacy requires an
analysis of two elements:
The first is whether the individual, by his conduct, has “exhibited an actual
(subjective) expectation of privacy,” . . . [that is,] whether . . . the individual has
shown that “he seeks to preserve [something] as private.” . . . . The second question
is whether the individual’s subjective expectation of privacy is “one that society is
prepared to recognize as ‘reasonable,’” . . . [that is,] . . . whether . . . the individual’s
expectation, viewed objectively, is “justifiable” under the circumstances.
Tolbert, 442 U.S. at 1044 (quoting Katz v. United States, 289 U.S. 347, 351-61 (1967)). More
concisely, we must examine first whether Eden exhibited a subjective expectation of privacy and,
second, whether her subjective expectation was justifiable.
The case of United States v. Tolbert is particularly instructive. Government agents
approached Tolbert as she was entering a taxicab after deplaning an aircraft, apparently intent on
departing the airport without her luggage. This Court emphasized that “[t]his fact alone would not
support a finding that she maintained no subjective belief that her bag was secure from government
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intrusion. An individual may depart from an airport without claiming her luggage for a variety of
reasons, with full and legitimate intent to return and claim the baggage.” 692 F.2d at 1044. The
Court found dispositive, however, the fact that Tolbert “insisted that she was traveling without
luggage and specifically disclaimed ownership of the bag in issue.” Id. at 1044-45. The Court
concluded that the defendant could hardly assert a subjective expectation of privacy in luggage that
she specifically disclaimed ownership thereof. The Court found that Tolbert affirmatively indicated
that she had no interest in the secrecy of the contents of the suitcase by her actions and vigorous oral
disclaimers. Id. at 1045.
Similarly, in United States v. Sanders, 719 F.2d 882, 883 (6th Cir. 1983), this Court found
a police search of luggage that the officers suspected belonged to the defendant was unconstitutional.
Sanders, unlike Tolbert, never affirmatively disclaimed the suitcase, although she neither confirmed
nor denied that the luggage was hers. Sanders consistently refused to consent to a search of the
suitcase and explained to the agents she had not claimed the it at the airport because she was not
going straight home. This Court found that Sanders’ words and actions supported an inference that
she continued to have an interest in keeping the contents private. Because Sanders continued to have
a legitimate expectation of privacy in the suitcase, the Court concluded that she at no time
abandoned her luggage. 719 F.2d at 883.
In United States v. Frazier, 936 F.2d 262, 264-65 (6th Cir. 1991), this Court addressed
whether a defendant had abandoned an unchecked bag at an airport when his companion left it on
the floor while speaking to law enforcement agents. When the detective asked the defendant about
the duffle bag, he denied that it was his. The Court found that the defendant’s disclaimer constituted
abandonment. Id. at 625.
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In United States v. Oswald, the defendant left a briefcase in the trunk of a burning vehicle
on the side of the interstate. 783 F.2d at 664. The defendant did not call the fire department or
remain near the car to claim it when police arrived at the scene. He immediately left with a
passerby, leaving the keys in the ignition and his briefcase in the trunk. Later that night,
unbeknownst to the police, the defendant returned for reconnaissance of the vehicle at a fenced lot
after it had been towed. The defendant left town the next day. Id. at 664-65. This Court held that
the defendant abandoned the vehicle:
When one leaves a suitcase in an airport baggage claim area, he leaves it in a place
where there is normally some measure of security. It is reasonable to expect that
checked luggage will be locked up, if not claimed within a reasonable time, and will
be kept safe until the person holding the claim check comes to retrieve it. One who
choses [sic] to leave luggage in an unlocked burned-out automobile at the side of a
highway in the country can fairly be thought to have a much lower expectation of
privacy--and Oswald's expectation, as we know, was very low indeed. . . .
From the vantage point of [the officer], the indicia of abandonment seem reasonably
strong. The fact that the driver of the Florida car had departed the scene very quickly
would not of itself indicate abandonment if he had left to call the fire department, but
[the police] knew that no such call was made. [The officer] knew that the Florida
driver had not left his name with any of the motorists who had seen him go off with
[a passerby]. [The officer] knew that the Florida driver had not left any message at
either of the nearest exists on the interstate highway. And [the officer] knew that the
Florida driver had not returned to the scene of the fire within the span of time in
which a person having a legitimate expectation of privacy in the car’s contents could
reasonably have been expected to show up.
Id. at 667. The result in Oswald turned not on the fact that the defendant left the vehicle on the side
of the road but on the fact that he did not take any steps within a reasonable amount of time to make
his claim to the vehicle and its contents.
Ultimately, the government has the burden of establishing by a preponderance of the
evidence that a “defendant’s voluntary words or conduct would lead a reasonable person in the
searching officer’s position to believe that the defendant relinquished [her] interests in the item
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searched or seized.” United States v. Basinski, 226 F.3d 829, 836-37 (7th Cir. 2000).4
In Basinski, the Court of Appeals for the Seventh Circuit explained that “[t]here are three
general types of abandonment cases”:
The first type is characterized by the presence of a fleeing defendant who
relinquishes an object to make his flight easier or because discarding the item might
make it easier for him to later claim that he never possessed it. . . . Because he has
disposed of the property in a location that affords easy access to the public, a
reasonable person would believe that the defendant’s possessory interest in the
property is so eroded that anyone has a right to retrieve it. The second type of case
is closely related to the first, for in so-called "garbage cases" the defendant places
material in or near a refuse receptacle that is readily accessible to the public, and in
which he usually places other discarded materials. . . . By this conduct and the
location of the receptacle, the defendant leads reasonable people to believe that he
no longer cares what becomes of his trash, or articles mistaken for trash. In the third
type of case, the defendant is usually caught red-handed with or near a container of
contraband, whereupon he denies that the container or its contents are his. . . . Taken
at face value, this denial makes it reasonable to conclude that the defendant claims
no possessory interest in the items.
The fact that this present case does not fit into any of these three categories
strongly suggests that no abandonment occurred. The present case stands in stark
4
Eden argues that the warrantless search of the rental vehicle was conducted without
probable cause and thus violated the Fourth Amendment. Although she maintains that she never
abandoned the property, she argues, even if she had, the abandonment occurred as the result of this
unconstitutional seizure and thus was not valid. On this issue, the United States agrees that Eden enjoyed
an initial expectation of privacy at the outset of the transaction, but that when the police officer seized the
vehicle at the request of the rental car company, any expectation of privacy that the defendant had in the
vehicle was extinguished. The government relies on United States v. Allen, 106 F.3d 695 (6th Cir. 1997)
to support its position. See Allen, 106 F.3d at 699 (holding that motel manager’s act of locking
defendant-patron out of hotel room divested him of his status as an occupant and concomitantly
terminated his privacy interest its contents such that the manger’s consent to the officer’s search of the
room was all that was required to avoid constitutional infirmity).
The district court, however, did not make an express finding that the police acted improperly in
seizing the rental vehicle. Thus, we decline to address the issue.
The Court notes, however, that even if the vehicle was properly seized at the request of the rental
car agency, and the rental car agency gave the police consent to conduct a search, the district court found
that the rental car company could not waive Eden’s Fourth Amendment right or provide the requisite
consent to search Eden’s personal bag. Again, the United States has not challenged this decision by the
district court.
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contrast to the three scenarios because Basinski never explicitly disclaimed a privacy
interest in the briefcase and never placed the briefcase in an area readily accessible
to the public, such as an area usually reserved for abandoned items like trash.
Basinski, 226 F.3d at 837. The court concluded that the government did not establish that the
defendant’s voluntary words or conduct would lead a reasonable person in the searching officer’s
position to believe that the defendant relinquished his property interests in the item searched or
seized. Id. at 838-39.
Here, the United States argues that the district court erred in finding that Eden did not
abandon the suitcase. The government relies heavily on the fact that Officer Polich gave Eden two
opportunities to retrieve her personal belongings from the rental car after she had been informed that
the vehicle would be towed. The United States contends that she walked away from the vehicle and
left the suitcase inside the trunk, knowing that the car would be towed. The government therefore
maintains that a reasonable person in the police officer’s position would have believed that Eden
abandoned any expectation of privacy in the suitcase because she did not collect the luggage with
her other personal belongings and she had no assurance that she would have access to the rental car
in the future. The United States speculates that, when Eden walked away leaving the suitcase in the
car, Officer Polich could be left with only one of two conclusions: (1) Eden intentionally left the
suitcase behind knowing she would not have access again; or (2) she was unaware that the suitcase
was in the trunk. Eden counters that she could have just as easily forgotten about the suitcase, or
alternatively believed she could return to the rental company and claim personal items left in the
vehicle.
Applying the legal principles of abandonment to the facts of this case, the Court concludes
that Eden retained a reasonable expectation of privacy in the suitcase at the time of the search and
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did not abandon her luggage. The Court does not determine that a defendant must verbally or
expressly disclaim her personal property in order to support a finding of abandonment. Instead, in
this case, the Court finds that the government has not demonstrated that Eden exhibited a sufficient
subjective intent, through her voluntary words, conduct or otherwise, to relinquish her interest in the
suitcase.
Tolbert, Sanders and Oswald make clear that a defendant must do more than merely walk
away from something as private as a suitcase to support a finding of abandonment. Here, the record
contains nothing in the form of oral disclaimers or voluntary, unambiguous conduct that could
support a finding that Eden intended to distance herself from her privacy interest in the suitcase.
Walking away alone does not provide a conclusive indication of her intent or furnish the requisite
support for a determination that she maintained no subjective belief that the luggage was secure from
police intrusion. The fact that Eden did not take advantage of Officer Polich’s offer to collect the
suitcase with all of her other belongings, without more, is not sufficient to established that she
voluntarily relinquished her right to privacy in the luggage remaining in the car. In fact, Eden
exhibited a subjective expectation of privacy when she refused to consent to the search of the vehicle
and chose to walk away rather than submit to a search of her person and bags. Looking solely to
the external manifestations of her intent as judged by a reasonable person possessing the same
knowledge available to Officer Polich, the government has not establish that Eden abandoned the
suitcase.
Our dissenting colleague contends that the abandonment analysis must focus upon what a
reasonable police officer would have concluded from Eden’s conduct. As the foregoing analysis
explains, whether abandonment has occurred is determined by the acts or omission of the property
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owner, as observed by a law enforcement officer. The crux of the inquiry must be upon the conduct
of the property owner so as to ascertain whether she exhibited a continued expectation of privacy.
The officer’s observations, and not his conduct, are significant in this regard, particularly because
probable cause is not required to seize property that has been abandoned. Abel, 322 U.S. at 241;
Oswald, 783 F.2d at 666. Thus, we must focus on whether Eden’s outward manifestations
demonstrated that she sought to preserve the suitcase as private, through the prism of a reasonable
officer.
The dissent also compares the facts of this case to, in which a defendant left a suitcase in an
airport, and Sanders, in which a defendant left a suitcase in a burning car. This Court found no
abandonment in Oswald, but did find that Sanders had abandoned the suitcase. In our view, Sanders
voluntarily relinquished possession of a suitcase. In this case, Eden did not voluntarily relinquish
her property in the trunk of the vehicle. Instead, she was told that she could not take any items with
her into the police car, unless she first consented to a search. Otherwise, her only choice was to
leave the car and begin walking seven miles to the nearest town at 2:30 A.M. In our view, the fact
that she left a large, heavy suitcase in the trunk of the car in these circumstances does not constitute
abandonment.
It is important to note the narrow scope of our holding in this case given the procedural
posture in which it arises. The government has failed to challenge the district court’s ruling that the
rental car company could not provide the requisite consent to search the suitcase, even if the
company did provide consent to search the vehicle. The district court found that the rental car
company could not waive Eden’s Fourth Amendment rights and could not give consent to search
the suitcase. Because the government has not sought review of this decision, this Court is without
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jurisdiction to question it.
Nor has the government appealed the district court’s determinations with respect to
inevitable discovery. The record contains some indication that the government characterized the
search of the car as an inventory search and argued that the police would have inevitably discovered
the drugs as they conducted the inventory. An inventory search is a well-defined exception to the
warrant requirement, but is valid only if the search is administered in good faith, according to
reasonable, standardized criteria. Colorado v. Bertine, 479 U.S. 367, 374 (1987). The district court
found that the government had not proved that it would have inevitably discovered the drugs because
the search was not an inventory search and was not conducted pursuant to standardized-police
policy. Indeed, the car was not being impounded but instead was being towed to the rental car
agency. The record does not contain any evidence from which this Court could conclude that the
rental car agency would have searched the car, opened the suitcase and found the drugs, as opposed
to returning the luggage to the driver.
Thus, the single issue for our review relates to whether Eden abandoned the suitcase in the
trunk of the rental car. On this subject, we find that the government has not established that Eden’s
voluntary words or conduct, or any other manifestations of her intent, would lead a reasonable
person in Officer Polich’s position to believe that she relinquished her property interest in the
suitcase. Accordingly, the district court’s decision to suppress the evidence is AFFIRMED.
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RYAN, Circuit Judge, dissenting. While I agree that we should decide this appeal
by reaching the abandonment issue, I respectfully disagree with my colleagues’ conclusion that the
defendant, Terri Leigh Eden, did not abandon the suitcase in the trunk of her car when she walked
away from the scene of the traffic stop. In my judgment, the government established by a
preponderance of the evidence that Eden’s statements and her behavior during the traffic stop would
lead a reasonable person in Officer Polich’s circumstance to believe that Eden was relinquishing her
privacy interest in the suitcase in the car’s trunk in an attempt to distance herself from its illegal
contents. See United States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000).
I would reverse the district court’s order granting Eden’s motion to suppress and remand
with instructions to the district court to consider whether the search and seizure of Eden’s rental car
violated her rights guaranteed by the Fourth Amendment.
I.
The facts of this interesting and unusual case are adequately detailed in the majority opinion.
What they mean in terms of the so-called abandonment exception to the Fourth Amendment
prohibition against the warrantless search of the contents of a suitcase found in the trunk of an
automobile that we presume for now, was lawfully seized, is what divides my colleagues and me.
We are significantly benefitted by having viewed a videotape (with partial audio) of the entire
episode of Eden’s encounter with Officer Polich, from the time he stopped her car for a speeding
violation at about 1:50 a.m. on the dark, rural highway in Mineral County, Montana, until, almost
40 minutes later, with the officer’s permission, she walked away from the scene above, along the
shoulder of the highway into the night. Officer Polich knew, but Eden did not, that there was a
camera mounted on the police car and a microphone on Polich’s person, recording the whole
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episode.
Our duty, as I have said, is to determine as best we can, not whether we think Eden walked
away from the car and the suitcase in its trunk, with an intention permanently to relinquish her
privacy interest in the suitcase and its contents, but whether a reasonable police officer, in Officer
Polich’s circumstance, given his professional experience and his extensive interrogation of Eden at
the side of the highway, would reasonably think so.
As always, when state of mind is to be deduced from a body of circumstantial evidence, we
look to the circumstances as a whole; we do not assess separately, the individual increments of
conversation and behavior that comprise the whole, counting up the number of increments that point
in one direction and the number that point in another, and award the prize to the side having the most
“points.”
It is important to recognize that, strictly speaking, it is not Eden’s state of mind we are to
determine; that is, whether she intended to abandon the suitcase. It is the state of mind of the
fictional “reasonable police officer” in Officer Polich’s circumstance, that we seek to discern. The
question is whether he or she would reasonably have concluded that Eden intended to give up her
privacy rights in the suitcase and its contents.
Officer Polich testified that Eden seemed nervous when he approached her after stopping her
car for speeding. He said she hesitated before answering his basic questions about the origin and
destination of her travel. He said he suspected illegal activity, and called for back-up assistance.
After advising Eden at length about her alleged speeding, and the requirements of Montana
law for posting bond, Officer Polich handed Eden the speeding ticket, and Eden handed him the
bond money. That business done, Officer Polich made repeated, courteous attempts to obtain Eden’s
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consent to search the car and her personal belongings. Eden repeatedly refused to permit the officer
to search the car, which ensured that Eden’s belongings anywhere in the vehicle remained private.
Officer Polich then asked his dispatcher to advise the car rental company that an “unauthorized”
person, Eden, was driving the rental car and inquire whether the rental company wished him to
confiscate the vehicle. Advised by his dispatcher that the rental company did ask that he confiscate
the car, Officer Polich told Eden he was going to have her car “towed.” Eden inquired about getting
a ride to the next town, which Polich told her was about seven miles away. Polich told her he would
drive her to the next town, but that for his own safety, he would have to search her and any
belongings she brought into the car with her. Eden then asked for permission to retrieve her cellular
phone from inside the car, and Officer Polich responded: “You can get your phone. You can get
whatever you need. But like I said, before you come into my car I’m going to need to check your
purse and everything.”
When Eden reentered the car to retrieve her phone, Officer Polich noticed several empty
whisky bottles in plain view inside the vehicle. He directed Eden to step out of the car again, and
submit to a “field sobriety test.” After concluding that Eden was not intoxicated, Officer Polich
made it clear that he had taken possession of her car at the behest of the rental company, but that she
was “free to go.” He stated: “Basically we’re just waiting for the tow, so why don’t you just go and
grab your stuff real quick and we’ll get going.” Eden retrieved her purse, her cell phone, and a small
rolling suitcase from the passenger compartment of the car, but nothing from the trunk. Officer
Polich explained to Eden, once again, that she was free to walk up the shoulder of the highway,
alone, in the middle of the night, but if she wished to accept his invitation to drive her to the next
town, he would have to search her belongings. While Eden was thinking about Officer Polich’s
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conditional invitation and before she answered, he emphasized that the nearest taxi was 45 minutes
away, and the nearest town was seven miles away. The videotape captures Eden silently pondering
the situation. After reflecting on the matter, and, despite her initial inquiry about a ride, Eden
declined Officer Polich’s request to search her belongings and began to walk up the highway, alone,
at approximately 2:30 a.m., and disappeared into the darkness, making very clear that she intended
to keep the contents of her purse and the small rolling suitcase private.
Eden spent approximately 40 minutes, at the side of the road, with Officer Polich. Despite
her careful deliberation before refusing Officer Polich’s requests to search her car and her personal
belongings—cell phone, small rolling suitcase, and purse—Eden did not mention the suitcase in the
trunk of the car or make any attempt to retrieve it. Given Eden’s firm and repeated refusal to
consent to Polich’s several requests to search her purse and small suitcase, and given further her
decision to begin walking up the highway alone in the middle of the night, a reasonable person in
Officer Polich’s circumstance would have concluded that Eden meant to maintain her privacy in her
purse and rolling suitcase, and to distance herself from the car and anything in it, including the
suitcase full of cocaine in the trunk.
II.
In United States v. Sanders, 719 F.2d 882 (6th Cir. 1983), we held that the defendant did not
abandon her suitcase when she left an airport without retrieving the suitcase from the baggage claim
area. We explained that Sanders never affirmatively disclaimed the suitcase, and, “[m]ore
important, she consistently refused to consent to a search of the suitcase.” Id. at 886. We also noted
that Sanders explained to the agents that she had not claimed the suitcase because she was not going
straight home. Id. Based on those facts, we concluded that one could properly infer from Sanders’s
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words and actions that she continued to indicate that she had a privacy interest in the suitcase, and
therefore, she did not abandon it. Id.
But, in United States v. Oswald, 783 F.2d 663 (6th Cir. 1986), we held that the defendant
abandoned a suitcase when he left it inside an unlocked, burning car on the side of an interstate
highway. Id. at 663. Oswald left the scene with a passerby, did not report the fire, and did not
return to the scene within a reasonable time to retrieve the car or its contents. Id. at 664, 666.
Distinguishing Sanders, we explained that a person who leaves a suitcase in a baggage claim area
in an airport has a reasonable expectation that the suitcase will be locked up and kept safe until he
returns with the claim check, but that Oswald had no such reasonable expectation of privacy when
he left his suitcase in a burning car on the side of the highway. Id. at 667. We also explained that
Oswald could have retained his privacy interest in the suitcase by remaining on the scene, or
returning to the scene within a reasonable time to tell the officers to leave the suitcase alone. Id. at
668.
Of course, this case is neither Sanders, nor Oswald; it presents its own unique set of facts.
But, to the extent that it matters, I think our facts are more analogous to those in Oswald than those
in Sanders.
Unlike the defendant in Sanders, Eden did not leave the cocaine-laden suitcase in a known,
secure location such as a baggage claim area. When she left the car and began walking up the
highway, she had no idea where the car would be taken or by whom. She knew only that the car
would be towed and eventually returned to the rental car company. She did not know whether the
car would first be towed to a police impound lot or some other place, and she had no idea where the
rental car company would direct it ultimately be taken.
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In my judgment, what occurred during and following Eden’s confrontation with Officer
Polich provides more than sufficient basis for this court to conclude that a reasonable police officer
in Officer Polich’s circumstance, evaluating the totality of what occurred, would conclude that Eden
was abandoning whatever legitimate expectation of privacy she might have had in the suitcase in
the car’s trunk, when she took some of her personal belongings and walked away from the scene of
the traffic stop into the darkness of the night. See United States v. Tolbert, 692 F.2d 1041, 1044-45
(6th Cir. 1982).
III.
I think these facts establish by a preponderance of the evidence that Eden relinquished her
privacy interest in the suitcase in an attempt to distance herself from the 23 kilograms of cocaine
inside it, but what’s far more important, I think a reasonable person in Officer Polich’s shoes would
think so, too.
Therefore, I would reverse the district court’s order granting Eden’s motion to suppress and
remand with instructions to the district court to consider whether the search and seizure of the car
violated Eden’s Fourth Amendment rights.
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