CA10: Defendant abandoned carry-on luggage by disclaiming ownership

In a case involving use of a drug dog on a Greyhound bus in Utah, a drug dog alerted on a bag in the luggage compartment. In the passenger compartment, the defendant disclaimed ownership of a bag in the overhead rack that another passenger said he pushed away. That was an abandonment. They didn’t first search the bag in the luggage compartment before they boarded the bus to talk to passengers, and that wasn’t constitutionally required. United States v. Tubens, 2014 U.S. App. LEXIS 16906 (10th Cir. September 2, 2014):

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.