United States v. Carl Eugene Stephens, Opinion ( 2000 )

Opinion by Judge PREGERSON; Dissent by Judge SNEED.

PREGERSON, Circuit Judge:

Carl Eugene Stephens appeals his conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Stephens contends that the cocaine was discovered as a result of police conduct in violation of the Fourth Amendment. The district court admitted evidence of cocaine found in Stephens’s bag over Stephens’s motion to suppress. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we reverse.

I

On September 19, 1997, defendant Carl Eugene Stephens was traveling by Greyhound bus from Los Angeles to Seattle. The bus stopped for servicing at the Greyhound station in Sacramento where the passengers were required to disembark. The stop lasted roughly one hour.

The Sacramento Transportation Interdiction Narcotic Group (“STING”) routinely inspects busses at the Greyhound station for drugs and weapons. Two STING officers, Officer John Risley (“Risley”) and Officer Luci Villones (“Villones”), observed Stephens while he was waiting in line to reboard the bus. They noticed that he carried a gym bag which appeared heavy and bulging. When Risley pointed Stephens out to his supervisor, the supervisor stated that he had noticed Stephens in the terminal. The STING officers did not approach Stephens at that time. The officers continued to observe Stephens as he boarded the bus and placed his bag in the overhead compartment above his seat.

At the time the bus was scheduled to depart, Villones, Risley, and a third officer boarded the bus. The officers were not wearing uniforms or displaying their badges. They carried concealed weapons. They positioned themselves at the back, middle, and front of the bus. The aisle of the bus was very narrow, and the district court found that it would have been very difficult, although not impossible, for a person to exit.

The officer at the front of the bus used the Greyhound company’s public address system to speak to the passengers. He announced:

Good morning, ladies and gentlemen. We’re police officers from various agencies. We’re conducting a routine narcotics and weapons investigation on this bus. No one is under arrest, and you are free to leave. However, we would like to talk to you. Thank you.

The other two officers began questioning the passengers immediately. The first passenger that Officer Risley approached was Stephens. He asked Stephens whether he had any carry-on baggage. Stephens said that he did not. Risley repeated the question, this time pointing to the overhead compartment. Stephens again replied that he did not. After the officers interviewed other passengers, Ris-ley took the bag he had observed Stephens carrying, went to the front of the bus, and asked if anyone claimed the bag. None of the passengers claimed the bag. Risley took the bag off the bus where additional officers and a narcotics detection dog were waiting. The dog alerted to the bag. The officers opened the bag and discovered substances, later proven to be cocaine. The officers then arrested Stephens. The entire bus search lasted approximately ten to fifteen minutes.

Stephens was charged with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). He moved to suppress evidence seized from the bag. The district court denied the motion because it found that Stephens voluntarily abandoned the bag containing cocaine, and therefore lacked standing to challenge the search of the bag. Stephens was tried before a jury, found guilty, and sentenced to 240 months incarceration. He now appeals the district court’s denial of his motion to suppress evidence.

II

The first issue is whether Stephens abandoned his bag. “Whether property has been abandoned within the meaning of the Fourth Amendment is an issue of fact reviewed for clear error. United States v. Gonzales, 979 F.2d 711 (9th Cir.1992). The district court found that Stephens denied ownership of the bag three times. The district court concluded that these repeated denials objectively demonstrated an intent to abandon the property. This factual finding is not clearly erroneous.

Ill

The next question is whether Stephens abandoned the bag as a result of an unlawful seizure. Whether an encounter between an individual and officers constitutes a seizure in violation of the Fourth Amendment is a mixed question of law and fact that we review de novo. See United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997); United States v. Johnson, 903 F.2d 1219, 1221 (9th Cir.1990).

A defendant who voluntarily abandons property has no standing to contest its search and seizure. United States v. Garcia, 909 F.2d 389, 391 (9th Cir.1990). But “abandonment is a question of intent.” United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir.1986). “An' abandonment must be voluntary, and an abandonment that results from Fourth Amendment violation cannot be voluntary.” United States v. Austin, 66 F.3d 1115, 1118 (10th Cir.1995); see also United States v. Garzon, 119 F.3d 1446, 1451 (10th Cir.1997) (“Abandonment will not be recognized when it is the result of prior illegal police conduct.”). Stephens argues that he involuntarily abandoned the bag as a result of an unlawful seizure. We agree.

Police officers may not approach passengers on a bus, and request their consent to be questioned and searched if the officers “convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The test for whether a bus search is constitutional is not whether a reasonable person would feel “free to leave.” Id. at 436, 111 S.Ct. 2382. The test is whether, considering all of the circumstances, “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. This is because “when a person is seated on a bus and has no desire to leave, the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.” Id.

Here, the STING officers advised passengers that they were “free to leave” the bus. They did not tell passengers that they were free to remain on the bus and terminate the encounter by declining to answer their questions. The instructions given over the Greyhound public address system conveyed to passengers that they had two choices: stay on the bus and consent to the search, or get off the bus. This was a Hobson’s choice because by getting off the bus, a passenger ran the risk of giving the STING officers reasonable suspicion to stop him. See Illinois v. Wardlow, — U.S. —, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (holding that flight from police officers in an area known for drug activity is enough to create reasonable suspicion).²

Other factors also weigh in favor of finding that the encounter was a seizure. The encounter took place in “the cramped confines of a bus.” Bostick, 501 U.S. at 434, 111 S.Ct. 2382. Three officers boarded the bus, while others waited outside. Two officers questioned the passengers, while a third guarded the door. The officers used the bus company’s public address system, thus conveying their authority to the passengers. Officer Risley singled Stephens out by positioning himself next to Stephens’s seat and questioning him first. In light of all the circumstances, we find that Stephens was seized.³ In reaching this decision, we join the Eleventh Circuit which has found an unconstitutional seizure occurred under very similar facts. See United States v. Washington, 151 F.3d 1354 (11th Cir.1998) (holding that a bus sweep was a seizure where two plain clothed officers with concealed weapons boarded bus as it was about to depart and used the public address system to tell passengers that they were conducting a routine bus search, but did not tell passengers that they could refuse to answer questions). The fact that the STING officers could have made the encounter even more coercive by displaying their guns and badges, wearing uniforms, or threatening the passengers does not alter our conclusion.

IV

The judgment of the district court is REVERSED.

2 . The dissent asserts that "the coercive effect of the words spoken by the officers should be measured by their effect on an ‘innocent’ person. The. majority analysis measures their effect on the ‘guilty’ person.” See supra at 919. The dissent misreads our opinion. What we conclude is that no passenger, innocent or guilty, would have felt free to refuse to answer the officers’ questions while remaining on the bus. Obviously, an innocent passenger may desire to preserve her privacy and to refuse to consent to a police search, just as a guilty passenger might.

3 . We make two additional observations. First, additional officers and a narcotics detection dog were waiting outside the bus. It is not clear from the record whether the additional officers and the dog were visible to Stephens from his seat on the bus. If they were visible to Stephens, their presence would have increased the coerciveness of the encounter even further. Second, although courts are not empowered to forbid law enforcement practices because they find them “distasteful,” Bostick, 501 U.S. at 439, 111 S.Ct. 2382, we note that the supervisor had noticed Stephens in the terminal where the STING officers could have approached Stephens in a less confined, and therefore less coercive, environment.