United States of America v. IBRAHIM HAMUD FULANI On Appeal from the United States District Court for the Middle…

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-3835
UNITED STATES OF AMERICA,
Appellant
v.
IBRAHIM HAMUD FULANI
On Appeal from the United States
District Court for the
Middle District of Pennsylvania
(D.C. Crim. No. 02-00049)
Honorable Thomas I. Vanaskie,
Chief Judge
Argued April 22, 2004
BEFORE: SCIRICA, Chief Judge, and
ROSENN and GREENBERG,
Circuit Judges
(Filed: May 20, 2004)
Thomas A. Marino
United States Attorney
George J. Rocktashel (argued)
Assistant United States Attorney
Herman T. Schneebeli Building
240 West Third Street, Suite 316
Williamsport, PA 17701-6465
Attorneys for Appellant
James V. Wade
Federal Public Defender
Daniel I. Siegel
Assistant Federal Public Defender
Patrick A. Casey (argued)
Assistant Federal Public Defender
Kane Professional Building, Suite 2C
116 North Washington Avenue
Scranton, PA 18503-1800
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this
court on an interlocutory appeal from an
order in the district court entered on
August 21, 2003, granting defendant
Ibrahim Hamud Fulani’s motion to
suppress physical evidence. The district
court had jurisdiction pursuant to 18
U.S.C. § 3231 and we have jurisdiction
pursuant to 18 U.S.C. § 3731. We
review the district court’s decision for
clear error as to underlying facts, but
exercise plenary review as to conclusions
of law. See United States v. Riddick,
156 F.3d 505, 509 (3d Cir. 1998). For
the reasons stated herein, we will reverse
the district court’s order.
I. BACKGROUND

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On February 21, 2002, at
approximately 3:15 p.m., Greyhound
Lines Bus No. 6466 en route from New
York to California made a scheduled stop
in Monroe County, Pennsylvania, at the
Delaware Water Gap. With the driver’s
permission, two agents from the
Pennsylvania State Attorney General’s
Bureau of Narcotics Investigation,
Ronald Paret and Jeffrey P. Aster,
boarded the bus. Both agents were
dressed in plain clothes but wore visible
badges. They carried concealed weapons
under their coats. Agent Paret made a
general announcement over the public
address system, identifying himself and
Agent Aster and stating that their
purpose was to investigate drug
trafficking. He advised the passengers
that their “cooperation was appreciated,
but not required.”
Next, Agent Paret 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 passengers, including
Fulani, cooperated with the agents’
requests. During the entire duration of
the agents’ investigation, the bus doors
remained open and the aisle remained
unobstructed. Thus, passengers were
free to go on and off the bus. Fulani at
no point during the investigation exited
the bus.
Fulani was able to communicate
with the agents in English even though
his native language is Yoruba.1 When
Agent Paret asked him to produce his bus
ticket, he produced a ticket that read
“Fulani, Ibrahim.” Agent Paret then
asked him if he had any luggage, and
Fulani pointed to a plastic shopping bag
at his feet. Next, Agent Paret asked him
if that was his only bag, and Fulani said
it was. Agent Paret then specifically
asked him if he had any luggage in the
overhead rack, and Fulani gave a
negative response.
After the agents finished
questioning all of the passengers, they
identified a suitcase that had been left
unclaimed. This bag was located almost
directly above Fulani’s seat. Agent Aster
retrieved it and held it over his head,
asking all the passengers if anyone
owned it. After 15 to 20 seconds elapsed
without a response, Agent Aster removed
the bag from the bus. He then noticed a
Greyhound tag twisted around the bag’s
handle. When he flipped the tag over, he
saw that the tag had a name on it. He
brought the bag back onto the bus and
again asked if anyone claimed it. Again,
no one claimed the bag.
Agent Aster then removed the
bag from the bus and, along with Agent
Paret, searched it. Inside the bag they
found five plastic bags suspected to
contain heroin, a Nigerian passport
1At Fulani’s suppression hearing, his
counsel stated that Fulani speaks English
and that he did not need an interpreter.

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bearing Fulani’s name and photograph,
and a receipt for an airline ticket bearing
Fulani’s name. Agent Paret placed the
bag in his car, and the agents reboarded
the bus to try to find its owner. First,
they spoke with two passengers seated
across the aisle from Fulani and
examined their bus tickets. Next, Agent
Paret requested to see Fulani’s bus ticket.
When Fulani produced his ticket, the
agents arrested him and removed him
from the bus.
Subsequently, a grand jury
indicted Fulani on a single charge of
distribution and possession with intent to
distribute in excess of 100 grams of
heroin, in violation of 21 U.S.C. §
841(a)(1). Fulani moved to suppress
physical evidence alleging that the search
of his bag violated the Fourth
Amendment. On June 20, 2003, the
district court conducted an evidentiary
hearing on the motion and on August 21,
2003, filed a memorandum and order
granting Fulani’s motion. The United
States timely filed a notice of appeal on
September 18, 2003.
II. DISCUSSION
A. The Fourth Amendment
The Fourth Amendment
guarantees “[t]he right of the people to
be secure in their persons, houses,
papers, and effects, against unreasonable
searches and seizures.” Police officers’
requests to search passengers on a bus do
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.”
Florida v. Bostick, 501 U.S. 429, 438,
111 S.Ct. 2382, 2388 (1991) (finding
error in Florida Supreme Court’s per se
ruling that every encounter on a bus in
which consent from passengers to search
their luggage is sought is a seizure).
Moreover, police officers conducting a
routine, suspicionless drug interdiction
need not inform bus passengers that they
have the right to refuse consent to
searches. See United States v. Drayton,
536 U.S. 194, 207, 122 S.Ct. 2105, 2114
(2002).
B. Abandonment
Although a person has a privacy
interest in the contents of his personal
luggage, see United States v. Place, 462
U.S. 696, 707, 103 S.Ct. 2637, 2644
(1983), he forfeits that interest when he
abandons his property. See Abel v.
United States, 362 U.S. 217, 241, 80
S.Ct. 683, 698 (1960) (an individual has
no reasonable expectation of privacy in
abandoned property). Abandonment for
purposes of the Fourth Amendment
differs from abandonment in property
law; here the analysis examines the
individual’s reasonable expectation of
privacy, not his property interest in the
item. See United States v. Lewis, 921
F.2d 1294, 1302 (D.C. Cir. 1990). A
court must determine from an objective
viewpoint whether property has been

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abandoned. See United States v. Perkins,
871 F. Supp. 801, 803 (M.D. Pa. 1995),
aff’d, 91 F.3d 127 (3d Cir. 1996) (table);
see also United States v. Rem, 984 F.2d
806, 810 (7th Cir. 1993). Proof of intent
to abandon property must be established
by clear and unequivocal evidence. See
United States v. Moody, 485 F.2d 531,
534 (3d Cir. 1973).
C. Fulani Abandoned His Overhead Bag
Following the Supreme Court’s
rulings in Bostick and Drayton, police
officers may request to search bus
passengers, even without notifying them
of their right to refuse cooperation, so
long as a reasonable person would have
felt free to refuse cooperation. In
Fulani’s case, he was told that he had the
right to refuse cooperation, but he
nonetheless chose to cooperate. There is
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.
In choosing to cooperate with
Agent Paret’s questioning, Fulani told
him that he had one plastic bag by his
feet and no baggage in the overhead
rack. Fulani had other choices. 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.2 Second, Fulani
could have remained silent, and thus
have avoided giving the agents a basis to
search the bag. Instead, 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.
Fulani manifested his intent to
abandon his overhead bag in a clear and
unequivocal way. In addition to his
express statement to Agent Paret 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
Agent Aster’s questioning directed to the
entire bus. This silence was no mere
passive failure to claim ownership, as the
district court concluded in reliance on
Stanberry v. Maryland, 684 A.2d 823
(Md. 1996).
We are satisfied that viewing the
facts in their totality, Fulani’s explicit
denial of ownership of the bag (when he
spoke to Agent Paret), coupled with his
two implicit denials (when he remained
2Inasmuch as it does not appear that
the agents sought to search any other
bags we have no reason to believe that
they would have sought a consent to
search from Fulani if he originally had
identified the bag.

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silent in response to Agent Aster’s bus-
wide questioning), show Fulani’s clear
and unequivocal abandonment of his
privacy interest in the overhead bag.3
Thus, we hold that the district court erred
in suppressing the bag and its contents.
Accord United States v. Cofield, 272
F.3d 1303, 1307 (11th Cir. 2001)
(abandonment resulted where in response
to police officers’ requests for
permission to search two bags, defendant
“removed the bags from his shoulders
and put them on the ground, denied that
the bags belonged to him, and attempted
to walk away from the area”); United
States v. Springer, 946 F.2d 1012, 1017
(2d Cir. 1991) (abandonment occurred
where defendant stated that bag was not
his and then consistently disclaimed
ownership of it); Lewis, 921 F.2d at 1303
(abandonment occurred where defendant
denied ownership of luggage in overhead
rack).
Moreover, we disagree with the
district court’s ruling that once the agents
discovered Fulani’s nametag on the
unclaimed luggage, that they no longer
could infer that the luggage was
abandoned. 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 nametag on three
separate occasions after he cooperates at
least in part with the agents, as Fulani did
here, he no longer has a reasonable
expectation of privacy in his luggage.
We further reject Fulani’s argument that
he could not have abandoned his luggage
without physically removing himself
from it. The Fourth Amendment poses
no such requirement; it merely asks
whether the defendant has made a clear
and equivocal manifestation of his intent
to abandon his property.
Finally, there is no evidence of
any police misconduct in this case that
might render Fulani’s abandonment
involuntary. See Lewis, 921 F.2d at
1302-03 (abandonment may be
involuntary, and thus invalid, where it
results directly from police misconduct,
such as an illegal search or seizure,
3We reject the district court’s
suggestion that in order for Fulani’s
denial to have constituted an
abandonment, Fulani would have needed
to disclaim the bag expressly after the
agents discovered the nametag. We see
no reason to impose this requirement
where Fulani already had said that none
of the overhead bags belonged to him. In
fact, 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. Indeed, in
considering this case one might wonder
whether the agents would not have been
remiss had they not searched the bag
after no passenger would claim it.

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deceit, or, perhaps, a pattern of
harassment). In this case the agents
advised all the passengers, including
Fulani, of their right not to cooperate;
they left the bus doors open; and they left
the aisle unobstructed. Thus, there was
no evidence of a confining atmosphere
that might have rendered Fulani’s
abandonment involuntary. See, e.g.,
United States v. McDonald, 100 F.3d
1320, 1327-29 (7th Cir. 1997) (rejecting
argument that confining atmosphere on
bus due to the presence of three police
officers rendered abandonment invalid).
III. CONCLUSION
In sum, we hold that Fulani
abandoned his privacy interest in his
overhead bag, and accordingly the
agents’ search of that bag did not violate
his Fourth Amendment rights. Thus, we
will reverse the order of the district court
entered August 21, 2003, and will
remand the case to the district court for
further proceedings.

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