United States v. Tubens
2014 U.S. App. LEXIS 16906
| 10th Cir. | 2014Background
- On June 7, 2011, Utah officers conducting interstate drug interdiction ran certified narcotics dogs through the luggage compartments of two Greyhound buses; two dogs independently alerted to a black checked suitcase on the second bus.
- Officers removed the alerted suitcase, identified its Greyhound tag, and located its owner, Peter Tubens, who initially failed to respond when the officer called for him and later denied having carry-on luggage.
- Tubens exited the bus; he consented to a search of the checked suitcase (which yielded no contraband). Officers then found a paper sack and CD case above Tubens’ seat; Tubens admitted those were his and consented to their search (no contraband).
- A passenger reported seeing Tubens push something further down the overhead rack. Sergeant Salas asked remaining passengers to place belongings on their laps, reboarded, found an unclaimed black bag near Tubens’ seat, and asked if it belonged to anyone.
- Tubens denied ownership of that black bag; after the bus driver consented to a search of unclaimed luggage, officers opened it and found methamphetamine and pill bottles with Tubens’ name; Tubens was arrested.
- District court denied Tubens’ motion to suppress; on appeal the Tenth Circuit affirmed, holding the stop and continued investigation were supported by reasonable suspicion/probable cause and Tubens voluntarily abandoned the bag so he lacked standing to challenge its search.
Issues
| Issue | Tubens’ Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether officers’ actions (post-dog alerts) escalated to an unconstitutional detention | Officers lacked justification for further investigation; dog alerts were not sufficient | Two independent dog alerts gave probable cause/at least reasonable suspicion to detain and investigate | Dog alerts + Tubens’ evasive conduct justified detention and further inquiry |
| Whether officers exceeded Terry limits when they reboarded and inspected carry-on items | Reboarding and inspecting passengers’ carry-ons after negative searches was unreasonable and tainted abandonment | Reboarding was reasonably related in scope given travel context, evasive answers, and passenger report | Reboarding and limited additional questioning/search were reasonable under Terry |
| Whether negative searches of checked bag and carry-ons required termination of the encounter | Negative searches dispelled suspicion, so further intrusion was unconstitutional | Tubens’ prior evasiveness and passenger tip sustained reasonable suspicion despite negative searches | Negative searches did not eliminate reasonable suspicion; continued investigation was lawful |
| Whether Tubens voluntarily abandoned the unclaimed black bag, giving up standing to challenge its search | Abandonment was coerced/precipitated by unconstitutional detention | Tubens expressly disclaimed ownership during a lawful detention; abandonment was voluntary | Tubens voluntarily abandoned the bag and lacks standing to challenge its search |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (Terry stop and scope framework)
- Florida v. Bostick, 501 U.S. 429 (officers may ask questions and request consent on buses)
- United States v. Sokolow, 490 U.S. 1 (reasonableness does not turn on availability of less intrusive techniques)
- Arizona v. Arvizu, 534 U.S. 266 (officers may rely on training and experience to draw inferences)
- United States v. Sharpe, 470 U.S. 675 (brief investigatory stops reasonable when police diligent)
- United States v. Polly, 630 F.3d 991 (appellate standard: accept district court factual findings unless clearly erroneous)
- United States v. Parada, 577 F.3d 1275 (dog alerts suffice for probable cause analysis)
- United States v. Fonseca, 744 F.3d 674 (Tenth Circuit on Terry reasonableness and scope)
- United States v. Williams, 726 F.2d 661 (dog detection establishes probable cause for luggage)
- United States v. Lopez, 518 F.3d 790 (reasonable suspicion lower than probable cause)
- United States v. Wood, 106 F.3d 942 (inconsistencies during a stop can create reasonable suspicion)
- United States v. Denny, 441 F.3d 1220 (abandonment finding reviewed for clear error)
- United States v. Hernandez, 7 F.3d 944 (investigation at time of abandonment does not alone render abandonment involuntary)
- United States v. Ludwig, 10 F.3d 1523 (random dog sniffs of luggage are not Fourth Amendment searches)