April 21, 2019

Tenth Circuit: No Fourth Amendment Violation in Search of Abandoned Bag

The Tenth Circuit Court of Appeals issued its opinion in United States v. Tubens on Tuesday, September 2, 2014.

Peter Tubens was on a Greyhound bus in Utah en route to Philadelphia when Utah Highway Patrol officers and their drug-sniffing dogs stopped the bus during a routine drug interdiction activity. Both dogs alerted to one bag in the luggage compartment marked as Tubens’. One officer entered the bus and asked for Mr. Tubens in a loud, clear voice, but Tubens did not respond. After checking all the passengers’ tickets, the police located Tubens and questioned him. Because of his suspicious behavior and knowledge that drug traffickers tend to move drugs between their checked bags and carry-ons, the officers asked to search Tubens’ carry-ons. Tubens said he did not have any, but another passenger said Tubens had been putting a bag in the carry-on area. Officers found a paper bag and CD case on Tubens’ seat, neither of which contained drugs. The officers, by this time quite suspicious of Tubens, asked everyone on the bus to claim their carry-ons, after which there was one bag remaining. The officer asked in a loud, clear voice if the bag belonged to anyone, but no one claimed it. They asked Tubens if the bag was his and he denied ownership. They proceeded to search the bag and found two cylinders containing meth as well as two prescriptions belonging to Tubens. He was charged with possession of methamphetamine with intent to distribute and sentenced to 240 months’ imprisonment. Tubens appealed, arguing that the evidence obtained by searching the bag should be suppressed because it was obtained in violation of the Fourth Amendment.

The Tenth Circuit disagreed. The officers’ initial stop and dog sniff was a lawful investigation, and no justification was needed. Even assuming the officers’ search required reasonable suspicion, they had ample reason to be suspicious of Tubens, given the dogs’ positive reactions to the bag and Tubens’ evasive behavior. No Fourth Amendment violation precipitated Tubens’ abandonment of his bag. And, because Tubens unequivocally proclaimed the abandoned bag was not his, he lacked standing to challenge its search. The district court’s judgment was affirmed.

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