Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 94 CR 43 Sarah Evans Barker, Chief Judge.
Before CUMMINGS, COFFEY, and RIPPLE, Circuit Judges.
DECIDED NOVEMBER 21, 1996
In March 1994, Lashawn McDonald was indicted for possession with the intent to distribute approximately eleven kilograms of cocaine in violation of 21 U.S.C. sec. 841(a)(1). The defendant McDonald filed a motion to suppress; after a hearing, the district court found that the evidence seized was not in violation of McDonald's Fourth Amendment rights. Thereafter, the defendant pled guilty to the crime charged pursuant to a plea agreement in which she reserved the right to appeal the district court's denial of her suppression motion, but waiving the right to appeal her conviction and/or sentence. See Fed. R. Crim. Pro. 11(a)(2). The court sentenced McDonald to 120 months' imprisonment to be followed by five years of supervised release and also imposed a special assessment fee of $50. The defendant appeals the trial court's denial of the motion to suppress. We affirm.
On February 15, 1994, Detective Janet Cotton, Sergeant Jerry Ross and Detective Roy Potter of the Indianapolis Police Department were on a drug interdiction assignment at the Indianapolis bus depot. *fn1 On that date, Greyhound Bus No. 1999 from St. Louis, Missouri arrived at the depot at 2:45 in the afternoon; on board was the defendant McDonald. The passengers of No. 1999 temporarily disembarked during a short layover. Although the police officers did not have a search warrant they obtained permission from the bus driver to board and inspect the vehicle.
On board, the passengers' carry-on luggage was stored in overhead racks, above the seat rows. The officers proceeded to walk down the aisle, pushing and feeling the exterior of the bags in the overhead racks and sniffing the air surrounding the bags. Detective Cotton testified at the suppression hearing that she inspected two medium-sized soft-sided bags and felt objects in each and that she suspected that each contained a packed "brick" of a controlled substance. *fn2 After this observation she asked Sergeant Ross to inspect the bags. Sergeant Ross pushed and felt the exterior of the bags and agreed with Detective Cotton's conclusion and also suspected that both pieces of luggage in all probability contained narcotics. Neither Cotton nor Ross removed the luggage from the rack nor opened it, while Detective Cotton also observed that neither bag bore any identification. Shortly thereafter the officers departed the bus, leaving the bags in the overhead rack.
Outside the bus, Detective Cotton waited while the nine reboarding passengers got on the bus. On board, three female passengers sat in the front of the bus, while the other six passengers took seats at the rear. The three officers boarded the vehicle. None of the officers were in police uniform nor did any of them have a visible weapon; each was dressed in blue jeans. Potter and Ross proceeded to the rear while Detective Cotton positioned herself beside the three passengers at the front. After identifying herself as a police officer, Officer Cotton spoke with two female passengers sitting in close proximity to the suspect luggage and asked if either of them owned the identified bags on the overhead rack. Each of them individually denied ownership of the luggage. Detective Cotton next approached McDonald, who was sitting in front of the two female passengers with whom she had just spoken, again identified herself as a police officer, pointed to the two suspect luggage bags, and asked her if either of the two bags belonged to her. McDonald responded that they did not. Cotton then addressed all nine passengers on the bus collectively and asked if any of them claimed ownership of the bags. No passenger claimed ownership. Cotton then removed the bags from the luggage rack, *fn3 held them above her head, and again asked: "Do these bags belong to anyone on the bus?" Once more, there was no response. She repeated this inquiry two more times, each time receiving no response.
Cotton then moved the bags to the front steps of the bus. She told the driver they appeared to be abandoned. With the driver's permission, she opened the bags and inspected their contents; she found eleven kilogram bricks of cocaine (six in the black bag and five in the floral bag), women's clothing, and toiletries.
While Detective Cotton was opening the suspect bags, a passenger at the rear of the bus advised Detective Potter that he had observed McDonald carry the two suspect items of luggage on board the bus. Potter relayed this information to Cotton who observed that McDonald was the only female passenger on the bus who had the physical stature to be capable of wearing the clothes found within the bags. Detective Cotton approached the defendant McDonald, identified herself as a law enforcement officer and asked the defendant if she would mind stepping out of the bus to answer a few questions; McDonald agreed. Outside the vehicle, Cotton again asked the defendant McDonald if the luggage belonged to her. The defendant-appellant McDonald once again denied a connection with the bags. Officer Cotton then suggested the defendant accompany her to the police office located in the bus terminal, and McDonald agreed. Shortly thereafter, Cotton read McDonald her Miranda warnings and informed her that she wished to perform a pat-down search of her person for safety reasons. Thereafter, McDonald was placed under arrest.
A grand jury indicted McDonald for one count of knowingly possessing with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. sec. 841(a)(1). McDonald filed a motion to suppress, asserting that the evidence of cocaine found in her luggage must be suppressed because the officers' examination of the bags' exterior (and subsequent removal and opening of the luggage) constituted an unlawful search in violation of the Fourth Amendment. *fn4
After a hearing, the district court denied the defendant's motion, finding that the officers' touching and feeling of the exterior of the luggage did not constitute an unreasonable search and that McDonald had voluntarily abandoned the bags by repeatedly denying ownership of them. See United States v. McDonald, 855 F. Supp. 267, 269 (S.D. Ind. 1994). After the court denied the defendant's motion to suppress, the defendant agreed to enter a plea agreement to the crime charged, reserving the right to appeal the district court's ruling on the motion to suppress.
After hearing the defendant's testimony admitting the elements of the offense, the district court accepted McDonald's plea and found her guilty of the crime charged. The court sentenced the defendant to 120 months' imprisonment, to be followed by five years of supervised release, and imposed a special assessment fee of $50.
The defendant filed a timely notice of appeal, challenging the district court's denial of her motion to suppress.
McDonald argues that the police officers' contact with the exterior of her luggage while it was on the overhead rack constituted a search within the meaning of the Fourth Amendment and that the search was invalid because it was conducted without a warrant, valid consent, or probable cause. The government maintains that the officers' mere touching and feeling of the outside of McDonald's luggage did not constitute a search for Fourth Amendment purposes. Second, McDonald argues that the officers violated her Fourth Amendment rights by opening her bags at the front of the bus even though she had repeatedly denied owning them. She contends that her abandonment of the bags was caused by the prior illegal search (i.e., the feeling of her luggage) and by the confining atmosphere aboard the bus at the time the officers inquired of her concerning the ownership of the bags. The government argues that McDonald abandoned her bags when she disclaimed ownership of them after being asked, individually ...