CA8: Prior unlawful search of bag on bus was corrected by good faith actions of officer and exclusionary rule wouldn’t be applied

A Tornado bus was stopped in Arkansas, and the Arkansas State Trooper was looking for unmarked bags that could be considered abandoned because unmarked bags on Tornado buses were being used to ferry drugs. While searching the bag, the officer found a false bottom and then a name tag. He stopped the search and the drug dog was there. He put the bag back on the bus and had the dog sniff all the bags. The dog alerted on this bag. Stopping the search and putting the bag back on the bus for the sniff showed the officer’s good faith, and the exclusionary rule would not be applied. United States v. Tuton, 2018 U.S. App. LEXIS 17176 (8th Cir. June 25, 2018):

Second, although the government has not challenged the district court’s conclusion that Goodman’s initial search of the bag was unlawful, that issue requires clarification. We agree with the court that passenger Tuton had a protected privacy interest in properly tagged luggage stowed in the bus’s luggage compartment. But the court did not focus on the brief, isolated, and good faith nature of Goodman’s unlawful search. Goodman had received law enforcement communications reporting that drug traffickers were smuggling illegal drugs in unlabeled, apparently abandoned luggage so they could not be identified if the drugs were discovered. When he found an isolated bag matching that description in the luggage compartment of a bus that had aroused his suspicion of criminal activity, Goodman believed he could search the bag as abandoned property. It is “firmly established that a warrantless search of abandoned property is not unreasonable and does not violate the Constitution.” United States v. Sanders, 130 F.3d 1316, 1317 (8th Cir. 1997). Like other fact-intensive Fourth Amendment issues, “[w]hether the basis for such authority exists is the sort of recurring factual question to which law enforcement officials must be expected to apply their judgment; and all the Fourth Amendment requires is that they answer it reasonably.” Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990).

Of even greater significance, when Goodman found Tuton’s name tag and realized he had made a mistake of fact, he immediately ceased his search of the bag and called for a canine unit, concluding that having a drug dog sniff the reclosed bag was the “neutral” way to determine whether his suspicion that the false bottom contained drugs was correct. Even if this decision was based on his discovery of the false bottom in a bag he believed was abandoned property, the decisive question becomes whether the subsequently discovered cocaine must be suppressed because it was tainted by information acquired in this manner. The exclusionary rule’s “sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations.” Davis v. United States, 564 U.S. 229, 236-37, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011). “[W]hen the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful, or when their conduct involves only simple, ‘isolated’ negligence, the ‘deterrence rationale loses much of its force,’ and exclusion cannot ‘pay its way.'” Id. at 238 (citations and quotations omitted); see United States v. Davis, 760 F.3d 901, 904-05 (8th Cir. 2014) (exclusionary rule did not apply to warrantless dog sniff based on prior precedents cast in doubt by a recent decision), cert. denied, 135 S. Ct. 996, 190 L. Ed. 2d 872 (2015). We need not decide whether the initial search of the bag, in isolation, was objectively reasonable. Instead, we conclude that, as in Utah v. Strieff, 136 S. Ct. 2056, 2063, 195 L. Ed. 2d 400 (2016), even if Goodman acted unreasonably in opening what he believed to be abandoned property, his conduct after discovering the mistake was lawful, and “all the evidence suggests that the [mistake] was an isolated instance of negligence that occurred in connection with a bona fide investigation.” In these circumstances, the exclusionary rule does not apply to suppress evidence discovered in a subsequent search that was validated by Hemi’s [the dog] alert.