United States v. Garcia ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4125
FERNANDO GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-95-126-L)
Argued: October 30, 1996
Decided: December 9, 1996
Before RUSSELL and WIDENER, Circuit Judges, and BULLOCK,
Chief United States District Judge for the Middle District of
North Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Susan Marie Bauer, Assistant Federal Public Defender,
Greenbelt, Maryland, for Appellant. Andrea L. Smith, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: James K. Bredar, Federal Public Defender, Greenbelt, Mary-
land, for Appellant. Lynne A. Battaglia, United States Attorney, Balti-
more, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Following the district court's denial of his motion to suppress,
Defendant Fernando Garcia entered a conditional plea of guilty to a
one-count indictment charging him with possession with intent to dis-
tribute heroin. He appeals the denial of his motion to suppress, con-
tending that the random boarding of a bus by law enforcement
officers who directed passengers to identify their luggage was an
unreasonable seizure in violation of the Fourth Amendment. We
affirm.
I.
On February 9, 1995, agents of the Drug Enforcement Administra-
tion and Maryland State Police were stationed at the Maryland House
rest area located on I-95 in Harford County, Maryland. At approxi-
mately 5:20 p.m. they approached a Greyhound bus driver whose bus
had stopped at the rest area and asked if they could enter the bus.
Upon obtaining permission from the driver, three officers boarded the
bus. The officers were dressed in plain clothes with their weapons
concealed.
Upon boarding the bus, the officers identified themselves, said that
they were part of a drug interdiction team, and asked the passengers
for their cooperation in identifying their luggage. One of the officers
started in the back of the bus and moved forward, and another officer
started in the front and moved toward the rear, asking each passenger
to identify his or her luggage. The entire process took about five min-
utes. The agents talked to the passengers in a normal conversational
tone of voice and spent only enough time with each passenger to
determine which bags were owned by them. Defendant Garcia was
sitting in the front right seat. When asked whether he had any bags
on the bus Garcia gave a negative response.
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After the process had been completed, a red-and-black duffle bag,
near the front of the bus, had not been identified. One of the officers
removed the bag from the overhead rack and used the bus intercom
to ask whether the bag belonged to anyone. No one claimed the bag
and it was removed from the bus. Outside the bus, a trained narcotics
dog reacted positively to the bag after sniffing it. The officers then
opened the bag and found heroin. The contents of the bag led the offi-
cers to believe that it belonged to Garcia, and they arrested him.
At the suppression hearing, the district court heard testimony from
two of the officers, the bus driver, and a passenger, Jean Schwartz.
Defendant presented Schwartz's testimony to support his argument
that a "reasonable person" would have felt unable to decline the
request of the officers and thus a "seizure" had occurred. However,
the trial court discounted much of Schwartz's testimony, finding that
it was based on a faulty recollection of events and that she was con-
fused. The court also found the two officers who testified concerning
the interdiction process to be credible.
Finding the encounter to be similar to those approved by this court
in United States v. Flowers, 912 F.2d 707 (4th Cir. 1990), cert.
denied, 501 U.S. 1253 (1991), and by the Supreme Court in Florida
v. Bostick, 501 U.S. 429 (1991), the district court denied Defendant's
suppression motion, finding that no unlawful seizure had occurred
and that the duffle bag had been abandoned.
II.
We review legal conclusions de novo, and factual findings for clear
error. United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert. denied,
116 S. Ct. 1890 (1996). The evidence before the trial court clearly
supported its findings and conclusion. Police may seek the voluntary
cooperation of citizens without violating the Fourth Amendment.
Flowers, 912 F.2d at 709. It is undisputed that the officers talked in
a professional tone, without raising their voices, and at no point did
they touch any of the passengers. They were not threatening in their
appearance and demeanor nor were any weapons displayed. Garcia,
who was sitting in the front of the bus, had easy access to the door.
The entire encounter took approximately five minutes and did not sig-
nificantly delay the bus schedule. Officers are permitted to seize and
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search abandoned property, and when a person denies ownership of
a bag that is subsequently searched he cannot later argue that his
Fourth Amendment rights have been violated. United States v. Clark,
891 F.2d 501, 506 (4th Cir. 1989). Because this case is factually
indistinguishable from Flowers, the decision of the district court in
denying Defendant's motion to suppress is
AFFIRMED.
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