The opinion of the court was delivered by: EDWARD R. KORMAN
On January 9, 1992, the defendant, Ruben Perea, pled guilty to one count of conspiracy to possess and distribute cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1). The plea was conditioned on the defendant's right to appeal the denial of his motion to suppress evidence found in a duffel bag that had been placed by his accomplice in the trunk of a livery cab in which the defendant was a passenger. The motion was denied on the ground that the defendant did not have an expectation of privacy in the trunk of the taxi because the taxi did not belong to him and because the trunk of the vehicle was simply a storage place for the duration of the taxi ride. The defendant also lacked standing to challenge the search of the duffel bag because he was concededly not the owner of the bag, and was, at most, its temporary custodian:
At best, the record suggests that Mr. Perea was simply hired to transport the bag from one location to another. Because he does not assert any facts remotely suggesting that he had any expectation of privacy in the contents of the bag, the search did not violate any expectation of privacy that the defendant had in the duffel bag or its contents.
Memorandum and Order dated June 24, 1991 at 3. Because of the conclusion that the defendant did not have a reasonable expectation of privacy in the contents of the duffel bag, it was unnecessary to address extensively the issue whether the defendant had abandoned the bag by denying ownership of it after being asked for his consent to its search. Nor was it necessary to reach the issue whether there was probable cause to search the bag.
On appeal, the Court of Appeals held, inter alia, that the defendant, as bailee of the duffel bag, had standing to challenge the admission of the physical evidence seized on February 1, 1991 because he had a subjective expectation of privacy in the duffel bag. See United States v. Perea, 986 F.2d 633, 639-42 (2d Cir. 1993). This subjective expectation of privacy was evidenced by the surveillance-conscious behavior exhibited by the defendant's accomplice, Hernan Ortiz, who took the duffel bag from a residence at 136-20 61st Road in Queens and loaded it into the trunk of the waiting livery cab, and by similar conduct by the defendant, Perea, when he left the residence at 61st Road and got into the passenger compartment of the cab. Specifically, the Court of Appeals relied on the testimony of the surveilling agents that, when Ortiz returned to the livery cab with a large duffel bag that appeared to be full and heavy, "he looked up and down the street, then signaled the cab driver to open the trunk." 986 F.2d at 636. After placing the bag in the trunk, Ortiz returned to the 61st Road residence. The defendant, Perea, then emerged from the residence and "appeared to check for surveillance, and then got into the cab." Id. According to the Court of Appeals:
Given their descriptions of Ortiz's and Perea's repeated glancing about for surveillance, there can be no doubt that Perea and Ortiz had exhibited subjective expectations of privacy and were attempting to preserve that privacy.
Moreover, relying on the right of a bailee "to exclude others from possession of the property entrusted to him," id. at 640, the Court of Appeals held that the subjective expectation of privacy manifested by Perea was reasonable. Accordingly, it remanded the case with instructions to resolve the ambiguity it perceived with respect to the issue whether the defendant abandoned the bag when he disclaimed ownership of it after being asked for his consent to its search:
If the court does not find that Perea abandoned the bag or consented to its search, it should conclude that he retained a protectable privacy interest in the bag. If he retained that privacy interest, the court should grant the motion to suppress the contents of the bag unless it concludes that the search was permissible by reason of an exception to the Fourth Amendment's warrant requirement.
United States v. Perea, 986 F.2d at 645.
I conclude that the defendant did not abandon the suitcase--a conclusion the Court of Appeals determined would not be erroneous on this record. Id. at 642. Perea's statement that the duffel bag did not belong to him was a truthful statement of fact that cannot alone provide a basis for inferring an intent on his part to abandon the bag. While he may have also intended to disassociate himself from the incriminating contents of the bag, Professor LaFave has cautioned that "a mere disclaimer of ownership in an effort to avoid making an incriminating statement in response to police questioning should not alone be deemed to constitute abandonment." See 4 Wayne R. LaFave, Search and Seizure, § 11.3(f), at 343 (1987).
Professor LaFave continues:
The question is whether the owner has 'voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.' Thus, if a person lawfully arrested disclaims any interest in the container and declines to take it with him, his readiness to depart the scene and leave an object such as a suitcase or briefcase in the control of no one may fairly be characterized as abandonment.
Id. at 344 (footnotes omitted) (quoting United States v. Colbert, 474 F.2d 174, ...