United States v. Otis Tugwell

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1011
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Otis Tugwell, *
*
Appellant. *
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Submitted: June 10, 1997
Filed: September 2, 1997
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Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
WOLLMAN, Circuit Judge.
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WOLLMAN, Circuit Judge.
Otis Tugwell appeals from the district court’s1 denial of his motion to suppress.
We affirm.
1
The Honorable George F. Gunn, Jr., United States District Judge for the Eastern
District of Missouri, adopting the report and recommendation of the Honorable David
D. Noce, United States Magistrate Judge for the Eastern District of Missouri.
I.
On May 4, 1996, Tugwell arrived in St. Louis, Missouri, from Los Angeles,
California, on a Greyhound bus. An interdiction team consisting of five St. Louis
police officers, one United States customs officer, and a drug-sniffing dog, met the bus
at the St. Louis station. Prior to the passengers’ departing the bus, the members of the
team informed the passengers of their identity and their purpose of preventing narcotics
from entering St. Louis. The team requested that the passengers submit to a sniff-
search of their luggage. None of the passengers objected.
Just prior to the search, a man departing the bus, later identified as Tugwell, told
officers that he urgently needed to use the restroom; he again expressed his need to use
the restroom when he handed his carry-on bag to the officers. When the drug dog
alerted to the bag, the officers requested and received permission to search it. No drugs
were found therein.
The officers then had the dog sniff-search the checked luggage. Detective Linda
Mopkins, one of the team members, saw Tugwell position himself against a nearby wall
to observe the dog’s search, despite his earlier statement that he needed to use the
restroom. As the dog alerted to a grey suitcase, Tugwell walked quickly into the bus
terminal without claiming any luggage. Mopkins went into the terminal in search of
Tugwell. When the two made eye contact Tugwell exited the terminal. Mopkins
followed him outside, but could not locate him.
Following the sniff-search of the checked luggage, which took only two or three
minutes, the passengers were advised they could collect their luggage. All luggage
except the grey suitcase was claimed. After approximately fifteen minutes, the
unclaimed suitcase was taken to the baggage claim area inside the bus terminal.
Greyhound personnel made two announcements to notify the owner to pick up the
suitcase. Still unclaimed, the suitcase was placed in a room with other luggage.
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Another sniff-search was conducted, and the dog again alerted to the presence of drugs.
A team member thereupon opened the suitcase and found several bags of cocaine.
Approximately two hours later, Tugwell returned to the bus station and
attempted to claim the suitcase “for a friend.” Unbeknownst to Tugwell, a Greyhound
supervisor notified St. Louis police. The supervisor then informed Tugwell that he
needed identification in order to obtain the suitcase. Tugwell left the terminal and
returned five minutes later with identification. When police arrived, Tugwell initially
identified himself as Paul Lewis, but later admitted he was Otis Tugwell, the owner of
the grey suitcase. Tugwell was arrested and indicted for possession with intent to
distribute cocaine.
The district court denied Tugwell’s motion to suppress the cocaine found in the
suitcase, concluding that Tugwell had abandoned any possessory interest in the suitcase
and therefore had no expectation of privacy. Tugwell waived his right to a jury trial,
was found guilty, and was sentenced to 312 months’ imprisonment.
II.
We review the district court’s determination of abandonment for clear error. See
United States v. Segars, 31 F.3d 655, 658 (8th Cir. 1994). Accordingly, “we must
affirm the district court’s abandonment finding unless its decision 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. Ruiz, 935 F.2d 982, 984 (8th Cir. 1991) (quoting United
States v. Meirovitz, 918 F.2d 1376, 1379 (8th Cir. 1990)) (other citations omitted).
A warrantless search of abandoned property does not implicate the Fourth
Amendment, for any expectation of privacy in the item searched is forfeited upon its
abandonment. See Segars, 31 F.3d at 658. The issue “is not abandonment in the strict
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property right sense, but rather, whether the defendant in leaving the property has
relinquished her reasonable expectation of privacy so that the search and seizure is
valid.” United States v. Hoey, 983 F.2d 890, 892-93 (8th Cir. 1993) (other citations
omitted). Whether 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. See United States v. Rem, 984 F.2d 806, 810 (7th Cir. 1993). “This
determination is to be made in light of the totality of the circumstances, and two
important factors are denial of ownership and physical relinquishment of the property.”
United States v. Nordling, 804 F.2d 1466, 1469 ( 9th Cir. 1986). We consider only the
information available to the officers at the time of the search. See Rem, 984 F.2d at
811 (“In order to determine whether a pre-search abandonment has occurred, the flow
of information considered stops at the moment the police officer opened the suitcase.”).
Based on the totality of the circumstances, we cannot say that the district court’s
finding of abandonment is clearly erroneous. Given Tugwell’s abrupt departure from
the station after witnessing the dog alert to the presence of drugs in the suitcase, it was
reasonable for the officers to assume that the grey suitcase belonged to him. Further,
it was a logical conclusion that after witnessing the dog’s alert Tugwell would not
return to the station and attempt to reclaim the suitcase.
Moreover, Tugwell’s own actions were inconsistent with a continued expectation
of privacy. Tugwell refused to claim the bag after three announcements, tantamount
to a denial of ownership, and he left the suitcase unguarded and unlocked in a public
place, both of which are important factors in finding abandonment. See Nordling, 804
F.2d at 1469. See also Ruiz, 935 F.2d at 984-85 (disclaiming ownership of luggage
was evidence of abandonment); United States v. Williams, 569 F.2d 823, 826 (5th Cir.
1978) (leaving a trailer unlocked and unguarded in a parking area was evidence of
abandonment).
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Tugwell’s later attempt to reclaim the suitcase does nothing to undermine this
conclusion, for his conduct in abruptly departing the station and then returning some
two hours later was “transparently an abandonment of the tight grip of ownership and
reliance solely on the feeble hope of re-acquisition.” Id. See also Nordling, 804 F.2d
at 1470 (rejecting defendant’s argument that his later admission of ownership
constituted a reassertion of interest in the property because he left the bag under
“circumstances in which it was virtually certain that the bag would be opened,
inspected and turned over to law enforcement authorities before he could possibly
attempt to re-exert physical control.”).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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