State v. Johnson , 1990 N.C. App. LEXIS 391 ( 1990 )

EAGLES, Judge.

Defendant asserts that the trial court erred in denying his motion to suppress. Defendant argues that the court erred in concluding there was no seizure of the bus, its occupants or defendant by the SBI officers when they boarded the bus with the driver’s permission. Defendant also argues that the evidence did not support the conclusion that the luggage was abandoned. Finally, defendant argues that once the luggage was in the custody of the law enforcement officers they needed a search warrant to have authority to search the luggage.

Our scope of review of an order denying a motion to suppress evidence is “whether the trial judge’s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). We conclude that the trial court’s findings of fact were amply supported by the evidence and that these findings of fact support the conclusion that the luggage was abandoned. Because the luggage was abandoned, defendant had no legitimate expectation of privacy in the luggage and the contraband found in it could properly be admitted into evidence.

Not every contact between a police officer and a citizen rises to the level of a “seizure” or is one which requires objective justification. Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 905 (1968). There is no seizure of a person until an officer demonstrably restricts that person’s liberty. Id. United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509-10, reh’g denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980) (citation omitted).

[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Defendant argues that the evidence shows that a reasonable person in his position would not feel free to leave. Defendant points to the testimony of various bus drivers. None of the drivers remembered this specific incident. Nevertheless they testified that normally an officer stood at the front of the bus, the bus doors were shut, and the departure of the bus was delayed by the officers. Defendant relies on United States v. Hammock, 860 F.2d 390 (11th Cir. 1988), to argue that the circumstances surrounding bus searches are confining and lead reasonable people to believe they are not free to leave. Defendant places particular reliance on the following passage from Hammock:

We recognize that actions by law enforcement officers that would not constitute an arrest in, for example, an airport environment, might constitute an arrest when used to interdict drug couriers traveling by bus because of the inherent limitations on a bus passenger’s freedom of movement.

Id. at 393 (citation omitted). However, on facts substantially similar to this case, the Hammock court held that defendant was not seized or arrested by officers. Therefore, the Hammock court held that the trial court did not err in denying defendant’s motion to suppress. Here, the trial court found that the officer who spoke with the passengers did not shout or talk in a loud manner, the officers were not acting in a hostile manner, at all times the bus door was open, and that the officers did not block passenger ingress and egress. Based on these facts the trial court concluded that neither the bus nor defendant were seized by the officers during the period of time they spoke to the passengers. The evidence of record supports these findings.

We note two recent decisions from this court where similar circumstances were not considered a seizure of the passengers or the bus. See State v. Christie, 96 N.C. App. 178, 385 S.E.2d 181 (1989) (defendant passenger on bus was not seized when officers boarded the bus and officers did not display weapons, did not use threatening language or a compelling tone of voice, and did not block or inhibit defendant in any way); State v. Turner, 94 N.C. App. 584, 380 S.E.2d 619, appeal dismissed and disc. rev. denied, 325 N.C. 549, 385 S.E.2d 508 (1989) (defendant, who officer asked to stand after person sitting near him on bus and who had departed from same city as defendant had been arrested for possession of narcotics, was free to leave until he was placed under arrest).

The trial court also found that defendant did not have a reasonable expectation of privacy in the bag and therefore concluded that defendant did not have standing to contest the search and seizure. This finding was the basis for the court’s conclusion that the bag was abandoned property. Defendant relies on State v. Cooke, 54 N.C. App. 33, 282 S.E.2d 800 (1981), aff'd, 306 N.C. 132, 291 S.E.2d 618 (1982), in which the court stated that a defendant’s “disclaimer of ownership does not necessarily constitute an abandonment signifying the relinquishment of his privacy interest in the contents of the suitcase.” Id. at 43, 282 S.E.2d at 807. Defendant argues that his denial of ownership was the result of unlawful police conduct and therefore not a voluntary relinquishment of an expectation of privacy. We disagree. The officer’s actions while asking the passengers questions were lawful. It was during this lawful police conduct that defendant and all other passengers denied ownership of the luggage. Nothing else appearing, abandonment of personal property in the face of lawful police inquiry does not render the abandonment involuntary. See State v. Cromartie, 55 N.C. App. 221, 284 S.E.2d 728 (1981). Here defendant lost any legitimate expectation of privacy he may have had in the luggage when he denied he owned or controlled the luggage.

Defendant’s final argument is that the search of the luggage, once the police had it in their exclusive control and possession, was unconstitutional because the officers did not have a warrant. Defendant relies on State v. Thomas, 81 N.C. App. 200, 343 S.E.2d 588, disc. rev. denied, 318 N.C. 287, 347 S.E.2d 469 (1986), in which the court stated that once officers had a suitcase in their exclusive control and no exigent circumstances existed the agents could not lawfully search the luggage without first obtaining a warrant. Defendant’s reliance is misplaced. In Thomas the suspect was asked questions by SBI officers while he waited for luggage at an airport baggage claim. After the suspect retrieved his luggage the officers requested that he accompany them to another room. While in the room the officers obtained information amounting to probable cause to arrest the suspect; after he was arrested they searched the luggage. The State attempted to argue that the search was a valid search incident to arrest. This court disagreed.

The facts here are neither similar nor analogous to those in Thomas. Here, no one on the bus claimed an interest in the luggage. It had been abandoned for purposes of fourth amendment inquiry.

[W]here one abandons property, he is said to bring his right of privacy therein to an end, and may not later complain about its subsequent seizure and use in evidence against him. In short, the theory of abandonment is that no issue of search is presented in such a situation, and the property so abandoned may be seized without probable cause.

Mascólo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buffalo L. Rev. 399, 400-401 (1970-1971). See, e.g., Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668, 687 (1960) (“There can be nothing unlawful in the Government’s appropriation of [] abandoned property.”). Defendant has no “standing” to assert a constitutional violation arising from the search of luggage that he had abandoned.

Finally, defendant argues that the North Carolina Constitution provides an independent basis for suppression of the evidence found in the luggage. On this record we are not persuaded. We conclude that the law and reasoning applicable to the fourth amendment in this case is also determinative of defendant’s rights under the North Carolina Constitution. See State v. Isleib, 319 N.C. 634, 356 S.E.2d 573 (1987).

Accordingly, we affirm the denial of defendant’s motion to suppress.

Affirmed.

Judges PARKER and ORR concur.