Stanberry v. State

⁷²⁴ RAKER, Judge. We granted Petitioner’s request for a writ of certiorari to answer the following question: Did the lower court err in denying Petitioner’s motion to suppress the contents of his suitcase which was left on a Greyhound bus during a twenty-minute stop at the Maryland House and which was searched in Petitioner’s absence after police officers held it up and asked the passengers on the bus whether it belonged to them and received no response? I. On August 16, 1993, the Maryland State Police were monitoring Greyhound buses at the Maryland House rest stop on Interstate 1-95 as part of a routine drug interdiction investigation. At approximately 8:55 p.m., Petitioner’s bus arrived at the rest stop from Newark, New Jersey for a twenty-minute rest stop.

Two state troopers, who were in plain clothes and were not displaying weapons, contacted the bus driver and arranged to board the bus and conduct the interdiction procedure once all of the passengers reboarded. 1 At approximately 9:20 p.m., the bus driver counted the passengers and concluded, erroneously, that everyone had returned to the bus. Two of the troopers then boarded the bus, identified themselves, and informed the passengers that they were performing a “drug interdiction.” The troopers stated that the purpose of the interdiction was to prevent the flow of drugs into the State, and they requested the cooperation of the passengers. A third trooper remained outside the bus throughout the interdiction. The two troopers proceeded to opposite ends of the bus and began asking passengers to identify their baggage.

In the overhead rack, Trooper Burnette located a black suit bag that was not claimed by any of the passengers seated near it. He ⁷²⁵ continued questioning passengers, and after completing his section of the bus, Trooper Burnette returned to the black bag and again asked the nearby passengers if the bag belonged to any of them. No one claimed the bag. Finally, after all of the other baggage had been claimed, Trooper Burnette took the suit bag to the front of the bus, held the bag overhead, and asked all of the passengers if anyone owned the bag.

No one claimed the bag. The troopers removed the bag from the bus, opened it, and searched it. The contents included a white shopping bag which contained four smaller plastic bags. One of the smaller bags contained cocaine, and each of the other three bags contained approximately one hundred baggies of heroin.

The troopers closed the suit bag, left it beside the bus door, and proceeded to question some of the passengers. The third trooper remained outside the bus to watch the bag. Petitioner then returned to reboard the bus. The bus driver initially stopped Petitioner from reboarding, but then realized that he had miscounted the number of people on the bus before the interdiction began, and that Petitioner was a passenger.

Before Petitioner reboarded, the trooper stationed outside the bus asked him if the black suit bag belonged to him. Petitioner initially claimed ownership of the bag, but immediately contradicted himself and stated that it did not belong to him. Petitioner then told the trooper that he was transporting the drugs to Richmond, Virginia in return for $300. The troopers arrested Petitioner.

Petitioner was indicted by the Grand Jury for Harford County with one count of bringing a controlled dangerous substance into the State, one count of possession of a controlled dangerous substance with the intent to distribute, and one count of possession of a controlled dangerous substance in violation of Maryland Code (1957, 1996 Repl.Vol.) Article 27, §§ 286(a)(1), 286A, and 287(a). Petitioner moved to suppress both the drugs taken from his baggage and his statement to the police. He contended that the police search of his luggage violated his constitutional rights under the Fourth Amend ⁷²⁶ ment and that his subsequent statement to the police should be suppressed as “fruit of the poisonous tree” because it resulted from the unlawful search. At the evidentiary hearing on the motion to suppress, the State contended that the search of Petitioner’s bag was permissible because the troopers reasonably believed that the bag was abandoned.

The State also maintained that the search was reasonable under the totality of the circumstances. At the suppression hearing, Petitioner testified that he had not abandoned his bag. He maintained that he had merely left it on the bus for a few minutes while he used the facilities at the rest stop. He testified that he left his bag when he went into the Maryland House but that he did not intend to abandon the bag.

Petitioner stated that he intended to and did return to. the bus to continue his trip. Petitioner maintained that in order to determine whether property is abandoned for purposes of the Fourth Amendment, the court should consider the subjective intent of the property owner 2 and evaluate whether the owner relinquished any reasonable expectation of privacy in the property. Applying this standard, Petitioner claimed, the property was not abandoned. Petitioner also argued that the troopers’ belief that the bag was abandoned was not reasonable.

The circuit court denied the motion to suppress, concluding that although Petitioner did not in fact abandon his suit bag, the troopers reasonably believed that the bag was abandoned. Petitioner then proceeded to trial before the court with an agreed statement of facts in response to the charge of transporting a controlled dangerous substance into the state. 3 The court found Petitioner guilty and sentenced him to fifteen ⁷²⁷ years imprisonment with all but three years suspended followed by two years of supervised probation. Petitioner noted a timely appeal to the Court of Special Appeals, presenting the single issue that the trial court erred in denying his motion to suppress. The Court of Special Appeals concluded that the troopers’ belief that Petitioner’s bag was abandoned was reasonable, and thus the search was lawful.

The court stated: In the instant case, the bus driver indicated to the officers that all the passengers had reboarded the bus. It was not until then that the officers began the interdiction process. Upon finding the bag and prior to opening it, the officers repeatedly inquired as to which of the passengers it might belong. These inquiries went unanswered.

In [the troopers’] objective opinion, because they believed all the passengers that might have claimed ownership of the bag were present on the bus, they believed the bag had been abandoned. The trial court did not clearly err in stating that, although actual abandonment had not occurred, the officers, based on their knowledge and experience, acted reasonably in presuming the bag had been abandoned, based generally and on their knowledge at the specific time of the search. Moreover, “[t]o suppress the evidence in the face of such subdued official conduct would render all such interdiction programs suspect____” U.S. v. Flowers, 912 F.2d 707 at 712 (4th Cir.1990). On the facts presented by this case, the officers’ reasonable and objective basis for concluding that the bag had been abandoned was “much more than a calculated guess and cannot be described as an effort to conduct a fishing expedition....

The extreme sanction of exclusion would be inappropriate.... ” U.S. v. Owens, 848 F.2d 462 at 466 (4th Cir.1988). That is not to say, however, that searches of this type will not be invalidated. While close scrutiny of interdiction claims of “reasonableness” is required by the Fourth Amendment to guard against contrived situations, our independent examination of the facts here present leads us to conclude, as did the trial court, that the officers acted ⁷²⁸ reasonably. There may be many interdiction situations in which the intrusion on Fourth Amendment protections will be unreasonable.

This, however, is not such a case. Stanberry v. State, 105 Md.App. 200, 214-15 , 659 A.2d 333, 340-41 (1995). We granted Petitioner’s request for a writ of certiorari.

II

In this case, we must consider the constitutionality of a search for narcotics conducted on a bus during a “drug interdiction.” This is a matter of first impression in Maryland. Drug interdictions have become a widely used tool in fighting the “war on drugs.” As the Supreme Court explained in Florida v. Bostick, 501 U.S. 429, 431 , 111 S.Ct. 2382, 2384 , 115 L.Ed.2d 389 (1991): Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. The police have developed varying methods of conducting drug interdictions.

S. Guerra, Domestic Drug Interdiction Operations: Finding the Balance, 82 J.Crim. L. 1109, 1127-28 (1992). 4 ⁷²⁹ Numerous courts have considered the constitutionality of searches and seizures conducted during drug interdiction investigations. See, e.g., Bostick, 501 U.S. 429 , 111 S.Ct. 2382 ; United States v. Flowers, 912 F.2d 707 (4th Cir.1990), cert. denied, 501 U.S. 1253 , 111 S.Ct. 2895 , 115 L.Ed.2d 1060 (1991); United States v. Garcia, 909 F.Supp. 334 , (D.Md.1995). The Supreme Court addressed the constitutionality of a drug interdiction in Florida v. Bostick, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 .

In Bostick , the Court considered whether a defendant questioned by police in the course of a drug interdiction on a bus had been illegally seized in violation of the Fourth Amendment. Id. Rejecting the Florida Supreme Court’s per se rule barring drug interdictions on buses, see Bostick v. Florida, 554 So.2d 1153 (Fla.1989), rev’d, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991), the United States Supreme Court reasoned that: [E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search his or her luggage — as long as the ⁷³⁰ police do not convey a message that compliance with their requests is required. Bostick, 501 U.S. at 434-35 , 111 S.Ct. at 2386 (citations omitted).

Although the Court remanded the case for a determination of whether, on the particular facts of the case, Bostick was seized, the Court rejected the view of the Florida Supreme Court that any drug interdiction conducted on a bus resulted in an unconstitutional seizure of the passengers. Id. at 437, 439-40 , 111 S.Ct. at 2387-88, 2389 . Although the Court concluded in Bostick that bus drug interdictions are not per se unconstitutional, the Court further explained that if the police indicate that compliance with their requests is required “by means of physical force or show of authority,” then the encounter may amount to an unlawful seizure of the person. Id. at 434, 111 S.Ct. at 2386 .

Thus, the applicability and extent of Fourth Amendment protections depend on the specific procedures used by the police. See, e.g., United States v. Fields, 909 F.2d 470 (11th Cir.1990); United States v. Tartaglia, 864 F.2d 837 (D.C.Cir.1989); United States v. Whitehead, 849 F.2d 849 (4th Cir.), cert. denied, 488 U.S. 983 , 109 S.Ct. 534 , 102 L.Ed.2d 566 (1988); State v. Henderson, 114 Idaho 293 , 756 P.2d 1057 (1988). In the instant case, the drug interdiction search led police to conclude that a piece of baggage was abandoned, resulting in a warrantless search of the bag containing narcotics. Petitioner acknowledges that abandoned property is not protected by the Fourth Amendment, but he maintains that the property at issue in this case, his black suit bag, was not abandoned.

Petitioner contends that he did not intend to abandon his property, and furthermore, that he did nothing to manifest any intent to abandon his bag. Thus, he asserts that the warrantless search of his bag was impermissible. The State responds that even if the police mistakenly believe that property is abandoned, their search of the property does not violate the Fourth Amendment provided they reasonably believe the property is abandoned. In this case, the State maintains that Petitioner’s bag appeared to be abandoned, and therefore the search did not violate the Fourth Amendment. ⁷³¹ Finally, the State advocates extending the “good faith” doctrine of United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), to this warrantless search.

III

The Fourth Amendment provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., amend.

IV

The scope of the protection afforded by the Fourth Amendment is defined in terms of the individual’s “legitimate expectation of privacy.” Smith v. Maryland, 442 U.S. 735, 740 , 99 S.Ct. 2577, 2580 , 61 L.Ed.2d 220 (1979); Katz v. United States, 389 U.S. 347, 351 , 88 S.Ct. 507, 511 , 19 L.Ed.2d 576 (1967); Owens v. State, 322 Md. 616, 625 , 589 A.2d 59, 63 , cert. denied, 502 U.S. 973 , 112 S.Ct. 452 , 116 L.Ed.2d 470 (1991). Fourth Amendment protection, however, does not extend to property that is abandoned. Abel v. United States, 362 U.S. 217, 241 , 80 S.Ct. 683, 698 , 4 L.Ed.2d 668 (1960); Morton v. State, 284 Md. 526, 531 , 397 A.2d 1385, 1388 (1979); Everhart v. State, 274 Md. 459, 483 , 337 A.2d 100, 114 (1975). By abandoning property, the owner relinquishes the legitimate expectation of privacy that triggers Fourth Amendment protection.

Venner v. State, 279 Md. 47, 59 , 367 A.2d 949, 956 , cert. denied, 431 U.S. 932 , 97 S.Ct. 2638 , 53 L.Ed.2d 248 (1977). We have previously articulated a two-part test to determine when Fourth Amendment protection applies: [F]irst ... a person [must] have exhibited an actual (subjective) expectation of privacy and, second, that ... expectation [must] be one that society is prepared to recognize as ‘reasonable.’ Venner, 279 Md. at 52 , 367 A.2d at 952 (quoting Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507, 516 , 19 L.Ed.2d ⁷³² 576 (1967) (Harlan, J., concurring)); see also California v. Greenwood, 486 U.S. 35, 39 , 108 S.Ct. 1625, 1628 , 100 L.Ed.2d 30 (1988). We have also noted, in accord with a number of other courts and commentators, that the test for whether property is abandoned for purposes of the Fourth Amendment differs from the property law concept of abandonment. 5 Owens, 322 Md. at 625 , 589 A.2d at 63 ; Venner, 279 Md. at 53 , 367 A.2d at 952 . Although the Fourth Amendment abandonment inquiry focuses on the property owner’s actual expectation of privacy, a subjective question, courts must frequently rely on objective indications of the owner’s intent.

As Chief Judge Murphy wrote for this Court in Morton v. State, 284 Md. at 531 , 397 A.2d at 1388 -89: Whether property has been “abandoned is generally a question of fact based upon evidence of a combination of act and intent.” Intention is a prime factor in considering whether there has been an abandonment; it is to be ascertained from what the actor said and did since intent, al ⁷³³ though subjective, is determined from objective facts at hand. (citations omitted). See also Duncan and Smith v. State, 281 Md. 247, 262 , 378 A.2d 1108, 1118 (1977); Everhart v. State, 274 Md. 459, 483 , 337 A.2d 100, 114 (1975); United States v. Rem, 984 F.2d 806 , 810 & n. 2 (7th Cir.), cert. denied, 510 U.S. 913 , 114 S.Ct. 300 , 126 L.Ed.2d 248 (1993). We have analyzed a variety of objective factors to determine whether property is abandoned.

Among other considerations, we have evaluated the location of the property and assessed whether the area is secured. Owens, 322 Md. at 630-31 , 589 A.2d at 66 ; see also United States v. Most, 876 F.2d 191, 196-97 (D.C.Cir.1989); United States v. Oswald, 783 F.2d 663, 666-67 (6th Cir.1986). We have also assessed how long the property remained in the location prior to the search and the condition of the property at the time of the search. Morton, 284 Md. at 534 , 397 A.2d at 1390 ; Duncan and Smith, 281 Md. at 263-64 , 378 A.2d at 1118-19 .

In addition, we have considered whether the owner requested a third party to watch or protect the property. Owens, 322 Md. at 630 , 589 A.2d at 65-66 . Finally, we have considered whether the owner disclaimed or failed to claim the property when questioned by police. Faulkner v. State, 317 Md. 441, 451 , 564 A.2d 785, 789-90 (1989); Morton, 284 Md. at 534 , 397 A.2d at 1390 . 6 ⁷³⁴ Applying these general principles of Fourth Amendment jurisprudence to cases involving luggage, we note first that the Supreme Court has recognized that an individual possesses a legitimate expectation of privacy in the contents of his or her luggage.

United States v. Place, 462 U.S. 696, 707 , 103 S.Ct. 2637, 2644 , 77 L.Ed.2d 110 (1983); Arkansas v. Sanders, 442 U.S. 753, 762 , 99 S.Ct. 2586, 2592 , 61 L.Ed.2d 235 (1979) (“[L]uggage is a common repository for one’s personal effects, and therefore is inevitably associated with the expectation of privacy.”). In addition, because the operative issue, for Fourth Amendment purposes, is whether the property owner relinquished any reasonable expectation of privacy in the property, briefly relinquishing control of the property, e.g., by checking baggage, does not always amount to abandonment. 7 See Morton, 284 Md. at 533 , 397 A.2d at 1389-90 ; cf. Venner, 279 Md. at 51 , 367 A.2d at 952 . Moreover, courts have found that temporarily leaving luggage in a secured area does not indicate abandonment. United States v. Lee, 916 F.2d 814, 818 (2d Cir.1990); see also Most, 876 F.2d at 198-99 (leaving shopping bag with store clerk, as required by store policy, does not constitute abandonment).

For example, the United States Court of Appeals for the Second Circuit stated that: When checked luggage is left for a short period in the custody of an airline, it is presumed that the luggage is stored in a secure area and is safeguarded against intrusion. Thus, the luggage owner’s expectation of privacy remains undiminished, even though he fails to promptly retrieve his bag. However, this presumption can certainly be overcome ⁷³⁵ when other objective facts demonstrate the owner’s intention to abandon his property. Lee, 916 F.2d at 818 (citations omitted).

Thus, “[f]ailure to retrieve a checked suitcase from a baggage claims area does not automatically constitute abandonment.” United States v. Rem, 984 F.2d 806, 811 (7th Cir.1993); see also United States v. Tolbert, 692 F.2d 1041 (6th Cir.1982), cert. denied, 464 U.S. 933 , M104 S.Ct. 337, 78 L.Ed.2d 306 (1983). As Chief Judge Wald observed, writing for the United States Court of Appeals for the District of Columbia Circuit: [A]n individual need not shut himself off from the world in order to retain his fourth amendment rights. * * * * * * When an individual, by abandoning his property, leaves it within the reach of the public generally, there would be little point in requiring that the police alone be excluded. Such a rule would impede effective law enforcement while adding little to the individual’s interest in privacy. It is quite another matter, however, to suggest that an individual forfeits his expectation of privacy simply by entrusting his possessions to one other person....

In a variety of circumstances, we are all forced to surrender our possessions temporarily to the custody of others. We leave our bags with clerks at stores, museums, and restaurants; we check our luggage when we travel by train or by air; we park our cars at commercial garages. The suggestion that police in these situations may conduct warrantless searches of our belongings finds no support in precedent or in logic. Most, 876 F.2d at 198 (footnotes omitted) (citations omitted).

Although courts should generally consider all relevant facts in assessing whether property was abandoned, we believe that the Supreme Court’s decision in Florida v. Bostick, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991), as discussed above, precludes the courts, or the police, from inferring abandonment from the owner’s failure to assert ownership of luggage in response to police questioning during a drug interdiction. An affirmative disclaimer of ownership is markedly ⁷³⁶ different from passive failure to claim one’s property. United States v. Rush, 890 F.2d 45, 48 (7th Cir.1989); United States v. Hawkins, 681 F.2d 1343, 1346-47 (11th Cir.1982); United States v. Sanders, 719 F.2d 882, 885-86 (6th Cir.1983); State v. Joyner, 66 Haw. 543 , 669 P.2d 152, 153 (1983); State v. May, 608 A.2d 772, 776 (Me.1992) (“Although a number of courts have held that abandonment may arise out of an express disclaimer of ownership ..., abandonment cannot be similarly inferred from mere silence in response to police questioning.”); cf. United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir.1992) (in assessing whether third party validly consented to search defendant’s property, “[c]ourts consider ... whether the consenter explicitly disclaimed ownership or whether the defendant was present but did not claim ownership”). Bostick requires that “a reasonable person would feel free to decline the