United States v. Tuben

Filing

[10202645] Affirmed.Terminated on the merits after submissions without oral hearing. Written, signed, and published. Judges Hartz, Ebel(authoring judge), and Gorsuch. Mandate to issue. [13-4118]

Appellate Case: 13-4118

Document: 01019303096

Date Filed: 09/02/2014

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FILED
United States Court of Appeals
Tenth Circuit

PUBLISH

September 2, 2014

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 13-4118

PETER ANTONIO TUBENS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:11-CR-00579-TC-1)

Submitted on the briefs:
Robert M. Gamburg, Philadelphia, Pennsylvania, for Defendant-Appellant.
Jonathan Hornok, Law Student (Diana Hagen, Assistant United States Attorney, with him
on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before HARTZ, EBEL, and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

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After methamphetamine was recovered from his carry-on luggage aboard a
Greyhound bus, Defendant-Appellant Peter Tubens was charged with possession of
methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Tubens
pled not guilty and filed a motion to suppress the evidence against him, asserting that it
had been obtained in violation of the Fourth Amendment. Following an evidentiary
hearing and full briefing by both parties, the district court issued a written decision
denying the motion. Tubens proceeded to trial, where he was found guilty by a jury of
his peers, and subsequently sentenced to 240 months’ imprisonment to be followed by
sixty months’ supervised release. Tubens now appeals, reasserting his claim that the
evidence was obtained in violation of the Fourth Amendment. Exercising jurisdiction
under 28 U.S.C. § 1291, we now AFFIRM.1
I.

BACKGROUND
On the morning of June 7, 2011, Utah Highway Patrol Sergeant Steve Salas and

Emery County Sherriff Deputy Blake Gardner were conducting drug interdiction
activities along Interstate 70 in Green River, Utah. The officers were accompanied by
their Belgian Malinois, Duke and Niko, both of whom are state-certified narcotics dogs
trained to detect the odor of marijuana, cocaine, heroin, and methamphetamine. In line

1

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties= request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This case is therefore
ordered submitted without oral argument.

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with their usual interdiction routine, the officers followed a Greyhound bus into the West
Winds Truck Stop, where the bus was scheduled to stop for a twenty-minute passenger
break. While the officers were pulling into the truck stop, a second Greyhound bus also
arrived for its scheduled passenger break. After obtaining consent from the respective
bus drivers, Sergeant Salas deployed Duke into the luggage compartment of the first bus
while Deputy Gardner did the same with Niko in the second bus.
When Duke did not alert to anything in the first bus, Sergeant Salas began to lead
Duke back to his patrol car. Deputy Gardner headed them off, however, and asked
Sergeant Salas to deploy Duke into the luggage compartment of the second bus, which
Niko had just finished searching. Deputy Gardner did not point Duke or Sergeant Salas
to any particular area of the second bus. Duke was deployed and almost immediately
alerted to a black canvas suitcase: although “he never gave a final response by
scratching,” “he wouldn’t leave the bag for four to five seconds, closed mouth, intense
sniffing,” Vol. 2 at 27. Sergeant Salas would later testify that it was a “strong alert,”
which was telling him that there was “narcotic odor . . . inside that bag.” Id. at 48. He
informed Deputy Gardner of Duke’s alert, and Deputy Gardner relayed that Niko had
alerted to the same suitcase. The officers removed the suitcase and, after locating its
Greyhound identification tag, determined that it belonged to Defendant Peter Tubens,
who had a final destination of Philadelphia.
Once all of the passengers had reboarded the bus, Sergeant Salas, who was in
uniform, boarded the bus, stood by the driver’s seat, and said “in a sufficiently loud but
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non-threatening voice,” Vol. 1 at 57, “I’m looking for Mr. Tubens. Is there a Mr. Tubens
in the bus? I’m looking for Mr. Tubens. Any passenger with the name of Mr. Tubens,
please come forward.” Vol. 2 at 33. The passengers on the bus were “very quiet” when
Sergeant Salas spoke and, according to the district court, “anyone on the bus who did not
have a hearing disability would have heard Sergeant Salas’s request.” Vol. 1 at 57. Yet,
no one responded, so Sergeant Salas asked Deputy Gardener to board the bus to help him
locate Tubens. Once Deputy Gardner was onboard, Sergeant Salas asked the passengers
to get out their bus tickets, and he and Deputy Gardner proceeded to inspect tickets until
Sergeant Salas located Tubens, who had been on the bus the entire time. When Sergeant
Salas asked Tubens why he had not responded earlier, Tubens claimed that he had not
heard his name being called. Sergeant Salas asked Tubens to exit the bus with the
officers, and Tubens obliged.
Once outside, Tubens consented to a search of the suspect suitcase, which he
confirmed belonged to him. While Deputy Gardner was searching the suitcase, Sergeant
Salas asked Tubens if he had any carry-on luggage, testifying later that his experience
had taught him that drug traffickers often attempt to avoid detection by moving their
stash between their checked and carry-on luggage. Tubens asserted that he did not have
any additional items, but with Tubens’ earlier evasiveness fresh in his mind, Sergeant
Salas refused to take Tubens’ word for it and boarded the bus for further investigation.
Returning to the area where he had found Tubens, Sergeant Salas discovered a square
case and a paper sack on the luggage rack directly above Tubens’ seat. As he went to
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remove the items, the passenger occupying the seat immediately in front of Tubens’ seat
informed Sergeant Salas that she had earlier witnessed Tubens attempting to push
something else down the luggage rack and out of his immediate proximity. Suspecting
that he had not yet located all of Tubens’ carry-on luggage, Sergeant Salas asked the
passengers remaining on the bus to place all of their belongings on their laps so he could
more easily identify who owned what. While the passengers were complying with that
request, Sergeant Salas exited the bus and asked Tubens if either the paper sack or the
canvas case belonged to him. Although Tubens had initially denied having any carry-on
luggage, he admitted that both items were indeed his and consented to their search.
Neither the paper sack nor the canvas case (which turned out to be a CD case) contained
any contraband. At that point, Deputy Gardner informed Sergeant Salas that his search of
Tubens’ checked-suitcase had proved similarly unfruitful.
Following up on his earlier request, Sergeant Salas then reboarded the bus to see if
any unclaimed items remained in the overhead luggage rack. Sure enough, upon
reboarding, he immediately noticed a black bag close to where Tubens had been sitting.
Sergeant Salas held up the bag so all of the passengers could see it and asked if it
belonged to anyone on the bus. When no one claimed it, Sergeant Salas took it off the
bus and asked Tubens if it belonged to him. Tubens asserted unequivocally that the bag
was not his. After explaining that the bag had been legally abandoned because no one
had claimed it, Sergeant Salas asked the bus driver for his consent to search the bag. The
bus driver replied that, as long as no one was claiming it, the officers were free to search
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it. A subsequent search of the bag yielded two cylinder-shaped packages containing
methamphetamine and two prescription pill bottles with Tubens’ name on them, and
Tubens was arrested. Although Tubens was arrested approximately one hour after the
bus made its scheduled stop, only twenty minutes or so passed between the time of
Tubens’ identification and his arrest.
II.

DISCUSSION
Finding that Tubens had “express[ly] and unequivocal[ly] disclaime[d]”

ownership in the suspect carry-on bag, the district court denied Tubens’ motion to
suppress the evidence recovered therefrom on the ground that he had voluntarily
abandoned the bag during a lawful detention based on reasonable suspicion. Vol. 1 at
65. In so holding, the district court rejected Tubens’ assertion that the detention became
tainted after a search of his checked luggage revealed no contraband: according to the
court, “despite the fact that no drugs were found in [that] suitcase, other circumstances,”
including Tubens’ failure to identify himself and his inconsistent answers about his carryon luggage, “maintained, even heightened, Sergeant Salas’s reasonable suspicion.” Id. at
63.
Viewing the evidence in the light most favorable to the government and accepting
the district court’s findings of fact unless clearly erroneous, see United States v. Polly,
630 F.3d 991, 996 (10th Cir. 2011), our de novo review compels us to agree. For the
reasons developed below, therefore, we affirm the district court’s denial of Tubens’
motion to suppress.
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a. The suspect carry-on bag was discovered during a lawful investigation
Tubens contends his abandoning the carry-on was not voluntary, and thus that
suppression is required, because his disclaimer of ownership was precipitated by a
violation of his Fourth Amendment rights. Although he separately challenges as
unconstitutional most of the component parts of the officers’ investigation, the unifying
theme throughout his brief is that the officers lacked the legal justification necessary to
investigate as they did. We disagree: even assuming, as the district court did, that the
officers’ investigation of Tubens escalated from a consensual encounter, requiring no
justification, to an investigative detention, requiring reasonable suspicion of criminal
activity, see United States v. White, 584 F.3d 935, 945-46 (10th Cir. 2009), that standard
was more than satisfied under the circumstances of this case, where two drug dogs
independently alerted to Tubens’ checked suitcase, and he responded to the officers’
subsequent investigation in an evasive and inconsistent manner. Under the strictures of
Terry v. Ohio, 392 U.S. 1 (1968), in other words, no Fourth Amendment violation
precipitated Tubens’ abandonment of the suspect carry-on because the officers’
investigation was both “‘justified at its inception’” and “‘reasonably related in scope to
the circumstances which justified the interference in the first place.’” United States v.
Fonseca, 744 F.3d 674, 680 (10th Cir. 2014) (quoting Terry, 392 U.S. at 20).
Despite Tubens’ protestations to the contrary, there can be no question that his
detention was justified at its inception. No justification was needed to run the dogs
through the bus’s luggage compartment, see, e.g., United States v. Ludwig, 10 F.3d 1523,
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1527 (10th Cir. 1993) (“[S]uch random and suspicionless dog sniffs are not searches
subject to the Fourth Amendment.”), and the positive alerts from Niko and Duke more
than justified the officers in removing the suitcase, locating its owner, and detaining him
for further investigation. See United States v. Williams, 726 F.2d 661, 663 (10th Cir.
1984) (“[A] drug sniffing dog’s detection of contraband in luggage itself establish[es]
probable cause, enough for the arrest, more than enough for the stop.” (emphasis added,
internal quotation marks omitted)); accord United States v. Lopez, 518 F.3d 790, 799
(10th Cir. 2008) (“[T]he level of suspicion required for reasonable suspicion is
‘considerably less’ than proof by a preponderance of the evidence or that required for
probable cause.”). After all, “even 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.” Florida v.
Bostick, 501 U.S. 429, 434-35 (1991) (emphasis added). Tubens asserts otherwise,
making much of the fact that the dogs “alerted” but did not give a final “indication” to his
checked bag—though he himself interposes the two terms throughout his brief. See, e.g.,
Aplt. B. at 18. As this court recognized in United States v. Parada, however, although
there are indeed factual differences between the two signals, those differences are
irrelevant to the Fourth Amendment analysis, and a positive alert alone has long been
sufficient to imbue officers with the probable cause necessary to justify an immediate
search, or even an arrest. 577 F.3d 1275, 1282 (10th Cir. 2009). Armed with probable
cause that Tubens was transporting drugs, therefore, the officers in this case thus
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reasonably exercised the lesser-included powers of boarding the bus, forcing Tubens to
identify himself, and asking him to exit the bus for questioning.
Although Tubens attempts to use this heightened level of suspicion against the
officers, by asserting that they were required to search his bag before they boarded the
bus for further investigation—apparently on the implicit, and probably incorrect,
assumption that an unfruitful search at that point would have required the officers to
terminate the encounter—it is beyond dispute that the Fourth Amendment does not so
micromanage the on-the-spot decisions of experienced law enforcement officers. The
Supreme Court made as much explicit twenty-five years ago in United States v. Sokolow
when it held that “[t]he reasonableness of the officer’s decision to stop a suspect does not
turn on the availability of less intrusive investigatory techniques.” 490 U.S. 1, 11 (1989).
Needless to say, an officer likewise does not act unreasonably when he foregoes more
intrusive, albeit justified, actions and chooses instead to proceed more cautiously.
Nor is there any doubt that the officers’ subsequent actions were “‘reasonably
related in scope to the circumstances which justified the interference in the first place.’”
Fonseca, 744 F.3d at 680 (quoting Terry, 392 U.S. at 20). Although Tubens was initially
detained on suspicions that he was trafficking drugs in his checked baggage, “common
sense and ordinary human experience,” id. (internal quotation marks omitted), strongly
suggested that he was probably carrying additional luggage or personal items with him on
the bus as well—he was, after all, on a cross-country bus trip to Philadelphia. While
Tubens maintained that he was traveling without any carry-on luggage, Sergeant Salas
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acted reasonably in boarding the bus and seeing for himself: not only had Tubens just
exhibited his propensity to be less than completely forthcoming, but Sergeant Salas’
training and experience also instructed that drug traffickers often move their stash
between their checked and carry-on bags in an effort to avoid detection. See, e.g., United
States v. Arvizu, 534 U.S. 266, 273 (2002) (“[O]fficers [must be allowed] to draw on
their own experience and specialized training to make inferences from and deductions
about the cumulative information available to them that ‘might elude an untrained
person.’”). And once Sergeant Salas discovered the paper sack and CD case above
Tubens’ seat, and was further informed that Tubens had been seen pushing something
else down the luggage rack, it was eminently reasonable for Sergeant Salas to ask the
passengers remaining on the bus to place of all of their personal belongings on their laps
so he could identify who owned what.
Finally, even though Sergeant Salas subsequently exited the bus and learned that
no contraband was contained in Tubens’ paper sack, CD case, or checked bag, he acted
reasonably in reboarding the bus one last time to ensure that all of Tubens’ personal
belonging had been recovered. In asserting that the negative searches should have
dispelled the officers’ suspicions of drug trafficking, Tubens completely ignores the
intervening events just documented. By the time the searches had proved unfruitful, for
example, Tubens had failed to come forward when requested, had lied about having
personal items on the bus, and had been accused by another passenger of attempting to
conceal his carry-on luggage. See United States v. Wood, 106 F.3d 942, 947 (10th Cir.
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1997) (“[I]nconsistencies in information provided to the officer during the traffic stop
may give rise to reasonable suspicion of criminal activity”). Inferring from the totality of
the circumstances that Tubens likely had another bag on the bus, Sergeant Salas was thus
justified in reboarding the bus and continuing his investigation. Not only was it a logical
follow-up on the request that he had just made to the other passengers, but it also did not
significantly extend the duration of the detention. Indeed, there was nothing
unreasonable about the duration of Tubens’ detention more generally: although Tubens
contends it lasted almost an hour, the district court found that only twenty minutes or so
passed from when Tubens was located to when he was arrested. See United States v.
Sharpe, 470 U.S. 675, 688 (1985) (“We reject the contention that a 20-minute stop is
unreasonable when the police have acted diligently and a suspect’s actions contribute to
the added delay about which he complains.”).
b. Tubens voluntarily abandoned the suspect carry-on bag and thus lacks
standing to challenge its search
In light of the fact that Tubens expressly stated that the suspect carry-on bag was
not his, the district court did not clearly err in finding that Tubens had voluntarily
abandoned the bag. See United States v. Denny, 441 F.3d 1220, 1228 (10th Cir. 2006).
Although Tubens was under investigation when he disclaimed his ownership interest in
the bag, the foregoing analysis makes clear that no Fourth Amendment violation
precipitated that abandonment, and it is well-settled that “police pursuit or investigation
at the time of abandonment of property, without more, does not of itself render
abandonment involuntary.” United States v. Hernandez, 7 F.3d 944, 947 (10th Cir.
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1993). Having voluntarily abandoned the bag in which the methamphetamine was found,
therefore, Tubens lacks standing to challenge its subsequent search, and we thus affirm
the district court’s denial of his motion to suppress. See id. (“A warrantless search and
seizure of abandoned property is not unreasonable under the Fourth Amendment.”).
AFFIRMED.

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