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Reversing a lower court’s decision to suppress drug evidence seized in a bus search, the 3rd U.S. Circuit Court of Appeals has ruled that a piece of luggage may be deemed legally “abandoned” — even if it had a name tag attached — if no one on the bus spoke up to claim it. “While the presence of a nametag on one’s luggage may be an indicia of an expectation of privacy, the Fourth Amendment protects only a reasonable expectation of privacy, and after a passenger refuses to claim luggage with the name tag on three separate occasions after he cooperates at least in part with the agents … he no longer has a reasonable expectation of privacy in his luggage,” Senior 3rd Circuit Judge Morton I. Greenberg wrote in United States v. Fulani. Some of Greenberg’s remarks reflect a greater reluctance to expand individual rights in an age of terrorism. “We think it very unwise — and potentially catastrophic — to require that each bus passenger be polled as to whether he denies ownership of an unaccounted for bag. The implications of such a ruling in the event that such a bag contains a time-sensitive explosive device are hardly thinkable,” Greenberg wrote in an opinion joined by Chief Judge Anthony J. Scirica and Senior Judge Max Rosenn. The ruling reverses an August 2003 order by Chief U.S. District Judge Thomas I. Vanaskie of the Middle District of Pennsylvania who held that two agents had improperly concluded that Ibrahim Hamud Fulani was denying ownership of the bag — and thereby abandoning it — merely as a result of his silence. “To equate a passive failure to claim potentially incriminating evidence with an affirmative abandonment of property would be to twist both logic and experience in a most uncomfortable knot,” Vanaskie wrote. “This is especially true where the existence of an identification tag on the luggage and its placement on a luggage rack in close proximity to passengers indicate that a person is claiming an expectation of privacy in the contents of the bag.” But the appellate court focused on the fact that Fulani was not silent at first, and had claimed during his initial questioning that a plastic bag at his feet was the only bag he was carrying. As a result, the three-judge panel concluded that although Fulani was free to remain silent and had no duty to cooperate in the search of the bus, his actions amounted to an abandonment of his second piece of luggage, stowed in the overhead rack, and that the agents were therefore free to search it. According to court papers, a Greyhound bus en route from New York to California made a scheduled stop on Feb. 21, 2002, in Monroe County, Pa., at the Delaware Water Gap. With the driver’s permission, two agents from the Pennsylvania State Attorney General’s Bureau of Narcotics Investigation boarded the bus dressed in plain clothes but wearing visible badges. One agent made a general announcement in which he identified himself and his fellow agent, and stating that their purpose was to investigate drug trafficking. He advised the passengers that their “cooperation was appreciated, but not required.” The agents then spoke individually to all 50 passengers on the bus, asking where they were headed, whether they had any luggage and if they would produce their bus tickets for inspection. All 50, including Fulani, cooperated. According to court papers, Fulani was able to communicate with the agents in English even though his native language is Yoruba. When an agent asked if he had any luggage, Fulani pointed to a plastic shopping bag at his feet, and also said that it was his only bag. When specifically asked if he had any luggage in the overhead rack, Fulani said he did not. After the agents had finished questioning all of the passengers, they identified a single suitcase that had not been claimed — the bag directly above Fulani’s seat. One agent held the bag over his head, asking all the passengers if anyone owned it. After 15 to 20 seconds elapsed without a response, the agent removed the bag from the bus where they noticed a Greyhound tag twisted around the bag’s handle that bore a name the agents were at first unable to read, according to court papers. (It was later learned to be Fulani’s full name.) Once again, the 50 passengers on the bus were asked if anyone would claim the bag. None did. The agents then searched the bag and found five plastic bags containing heroin, an airline ticket and a Nigerian passport bearing Fulani’s name and photograph. Back on the bus, the agents arrested Fulani after he produced a bus ticket with his name on it. In a suppression hearing, Vanaskie concluded that the search of the bag had violated the Fourth Amendment because the name tag on the bag clearly showed that Fulani never chose to abandon it. “Fulani was not required to respond to any of the agents’ questions. Thus, silence cannot support an inference that ownership was being disclaimed,” Vanaskie wrote. “Stated otherwise, silence is equally consistent with a legitimate refusal to cooperate. Moreover, the fact that Fulani had affirmatively claimed ownership of one bag and stated that he did not have any other bags cannot support a reasonable inference of abandonment in this case because he had placed his name tag on the luggage,” Vanaskie wrote. Once the agents saw the name tag, Vanaskie said, “they could not infer that the luggage was abandoned. Some one had asserted a claim to it, and the agents had the ability to attempt to confirm ownership by, for example, asking whether there was a person named Fulani on the bus or asking to examine bus tickets, as they had earlier done.” If Fulani refused to produce his ticket or acknowledge his identity, Vanaskie said, the agents “would not have been able to infer abandonment because he was not obligated to cooperate.” Since Fulani had previously shown the agents a ticket that bore his name, Vanaskie found that the agents “could have linked the bag to Fulani and requested his consent to a search.” If Fulani had then denied permission, Vanaskie said, “absent a reasonable justification, the search of the bag could not have occurred.” But the 3rd Circuit found that Vanaskie’s decision conflicted with recent decisions from the U.S. Supreme Court and with the law of abandonment of property in the context of the Fourth Amendment. Greenberg noted that in its 1991 decision in Florida v. Bostick, the Supreme Court held that a police officer’s requests to search passengers on a bus does not violate the Fourth Amendment so long as “a reasonable person would have felt free to decline the officers’ requests or otherwise terminate the encounter.” And in its 2002 decision in United States v. Drayton, the justices went further, Greenberg found, holding that police officers conducting a routine, suspicionless drug interdiction need not inform bus passengers that they have the right to refuse consent to searches. In Fulani’s case, Greenberg found that “he was told that he had the right to refuse cooperation, but he nonetheless chose to cooperate.” Greenberg said there was “no evidence that a reasonable person in his position would not have felt free to refuse cooperation; in fact, the bus doors remained open and the aisle remained unobstructed during the entire investigation.” Fulani chose to answer questions, Greenberg noted, and claimed that he had one plastic bag by his feet and no baggage in the overhead rack. “Fulani had other choices,” Greenberg wrote. “First, he could have said that he owned the overhead bag, thereby requiring the agents to obtain his consent to search it if they desired to do so. Second, Fulani could have remained silent, and thus have avoided giving the agents a basis to search the bag.” Instead, Greenberg said, “what Fulani did was disclaim ownership of every bag located in the overhead rack, including the one that bore his name on it. In so doing, Fulani abandoned ownership in his bag, effectively waiving his right to bar its search.” As a result, Greenberg concluded that Vanaskie erred in holding that Fulani’s passive silence was improperly read by the agents as abandonment. “Fulani manifested his intent to abandon his overhead bag in a clear and unequivocal way,” Greenberg wrote. “In addition to his express statement … that none of the baggage in the overhead rack belonged to him, after voluntarily cooperating Fulani implicitly denied ownership of the bag on two occasions when he remained silent in the face of … questioning directed to the entire bus. This silence was no mere passive failure to claim ownership, as the district court concluded,” Greenberg wrote.

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