Remaining silent when police officers at a bus asked about who owned what bags does not constitute an abandonment

Remaining silent when police officers at a bus asked about who owned what bags does not constitute an abandonment. State v. McNeal, 2008 NMCA 4, 143 N.M. 239, 175 P.3d 333 (2007):

[*16] … Several courts have held that a refusal to comply with an officer’s direction to identify bags on a bus does not constitute abandonment of the bags. See Stanberry v. State, 343 Md. 720, 684 A.2d 823, 832-35 (Md. 1996) (holding that police officers’ belief that bag on a bus was abandoned based on silence in the face of their inquiries about its ownership was unreasonable where all passengers on the bus had a right to refuse to answer any questions about the bag); see also United States v. Garzon, 119 F.3d 1446, 1452-53 (10th Cir. 1997) (holding that a defendant did not abandon the bags he left on the bus when all bus passengers were asked to take their bags off the bus and defendant got off with one of his bags, but left two of his bags on the bus); United States v. Cuevas-Ceja, 58 F. Supp. 2d 1175, 1190 (D. Or. 1999) (holding that a defendant did not abandon her bag when she did not claim it when directed to do so by officers).

[*17] We are aware that some courts have indicated that refusing to claim a bag when directed to do so by law enforcement constitutes abandonment, see, e.g., United States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004) (stating that silence in the face of bus-wide questioning regarding ownership of a bag constitutes abandonment); Garzon, 119 F.3d at 1452 (noting in dictum that the failure to respond to a direct question from a police officer might be construed as a disclaimer of ownership). We believe that such a conclusion is in conflict not only with the Supreme Court’s statements regarding a person’s rights when interacting with a police officer who has no reason to believe that he has done anything illegal, but also with the general rule that abandonment for Fourth Amendment purposes must be shown by “clear, unequivocal and decisive evidence,” see State v. Celusniak, 2004 NMCA 70, P 26, 135 N.M. 728, 93 P.3d 10 (internal quotation marks and citation omitted).

[*18] Courts have found unequivocal evidence of abandonment when a person expressly states that he is not the owner of a bag. See, e.g., United States v. Ojeda-Ramos, 455 F.3d 1178, 1187 (10th Cir. 2006); see also State v. Villanueva, 110 N.M. 359, 365, 796 P.2d 252, 258 (Ct. App. 1990) (holding that a defendant had no reasonable expectation of privacy in a bag when he expressly denied having any luggage on the bus). We have no such evidence here. Although both Agent Flores and Agent Hyland testified that Agent Flores asked everyone on the bus about his or her luggage, neither agent testified as to Defendant’s response. Where the State presented no evidence that Defendant expressly disclaimed ownership of the duffel bag, and where Defendant had a constitutional right to refuse to respond at all, we find unreasonable the agents’ conclusion that the duffel bag was abandoned.