US v. Jose Duran Garcia - Appeal Affirmed

UNPUBLISHED UNITED STATES CO URT OF APPEALS FOR THE FOURTH C IRCUIT No. 23-4631 UNITED STATES OF AMERICA, Plaintiff - Appell ee, v. JOSE GABRIEL DUR AN GARCIA, Defendant – Appella nt. Appeal from the United States Dist rict Court for the District of South Carolina, at Spartanburg. Donald C. Coggins, Jr., District Judge. (7:21-cr-0 05 23 -DCC-1) Argued: December 10, 2025 Decided: March 5, 2026 Before DIAZ, Chief Ju dge, GREGORY, Circuit Judge, and Gina M. GROH, United States District Judge for the N orthern District of West Virginia, sitting by designation. Affi rmed by un publi shed opinion. Jud ge Gr egory w rote th e opi nion, i n which Chief Judge Diaz and Judge Groh joined. ARGUED: Howard Walto n Anderson, III, TR ULUCK THOMASON LLC, Greenville, So uth Carolina, for Appellant. Benjamin Neale Garn er, OFFICE OF THE UNITED STATES AT TORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: Adair F. Boroughs, United States Att orney, Leesa Washin gton, Assistant United States Attorney, OFFICE OF THE U NITED STATE S ATTORNEY, Co lumbia, South C arolina, for Appellee. Unpublished opinions are not binding prec edent in this circuit.

2 GREGORY, Circuit Ju dge: On an evening in No vember, two police officers stopped a bus f or traffic law violations, asked the b us driver for cons ent to search the bus’s luggage hold, and brou ght a drug-detection dog to sniff the open h old. After determining th at the dog alerted, one of the officers searched a suitcase and recov ered ten kilograms of cocai ne. The police later recovered another ten kilograms of cocaine fro m an identical suitcase. Jose Duran Garcia was ultimately connec ted to the suitcases a nd charged with cocaine possess ion, among other offenses. After t he district court denie d Duran’s motion to suppress the evi dence recovered from the search, Duran plead ed guilty to the offenses charged. He now app eals the district court’s deni al of his motion to sup press. For the reasons below, we affirm the distric t court’s judgment. I. A. Two police officers with the Duncan Police Department — Officers Wright and Bembenek— stopped a Wanda Coach bus traveling from Atlanta to New York for speeding and failure to maintain a single lane of traffic. During the stop, Officer Bembenek asked the bus driver whether t hey could open up and search the bus’s exte rior luggage hold. The bus driver consented. 1 Officer Wright then ha d a drug dog, Kaos, sniff the bus’s l uggage hold while Officer Wright wrote the bus driver a traffic ticket. Officer Wright testified that 1 On appeal, neither pa rty challeng es the district court’s factual finding that the bus driver consented to the officers’ sear ch of the bus luggag e hold.

3 law enforcement did not have any particular reason to “believe that t he bus was involved in illegal activities” bef ore Kaos’s sniff. J.A. 288. Kaos was trained to ale rt handlers to the presence of drugs by sitt ing down after he sniffed. Before Kaos began sniffing, Of ficer Wright had him sit down on the road behin d the bus. Officer Wright then brou ght Kaos to the luggag e hold, which was open an d contained a pile of approximately fifteen pieces of l uggage in a conf ined area. Ka os was taken past the lu ggage c ompartment twice, but he did not sit down. Even so, Officer Wright determined that Kaos h ad alerted him to the presence of drugs based on his assessment of Kaos’s “breathing,” “walking speed,” and the speed and “pattern” of Kaos’s tail. J.A. 253. After receiving Kaos’ s alert, the officers searched several bags in the luggage compartment until they uncovered ten bricks of cocaine in a black suit case. Officer Wright then asked the bus pass engers to exit the bus a nd claim their lugga ge. Officer Wright aske d Duran which bag was his as he exited the bus, but Duran responded that his onl y bag was inside the bus and he h ad no luggage store d in the compartment: Wright: Which bag is yours, sir? Defendant: Huh? Wright: Which bag is yours, sir? Defendant: I don’t hav e a bag. Wright: You don’t hav e any bag down so uth…? Defendant: No. J.A. 50 at 07:43 -08:06.

4 Shortly after that exchange, Officer Wright asked Duran whether he “checked any bags with [the bus com pany],” to which D uran replied, “no.” J.A. 51 at 02:07-02:30. After all the passengers claimed their luggage, only two black suitcases — one that the officers had alread y searched, and an identical unopened suitcase —were unclaimed. At that point, Officer Wright stat ed that he had r easonable suspicion to believe the suit cases were Duran ’s. Officer Wright searched Dura n ’s pocket s. The officers then searched the second suitcase and discovered an a dditional ten bricks of cocaine. Surveillance video from the bus ter minal eventually revealed th at Duran had placed those bl ack suitcases in the luggage hold. Duran was indicted on three counts: conspira cy with intent to distribute cocaine, interstate travel and tra nsportation in aid of drug trafficking, and possession with inten t to distribute cocaine. B. After the suppre ssion hearing, the district court determin ed that because Duran had no property or possess ory interest in the commercial bus, h e could not challenge the bus driver’s consent to search the luggage hold. T he court then held that Duran lacked standing to challenge the search of both suitcases because he had denied ow nership of the luggage on the scene. The dist rict court ignored the timing of Duran’s disavowal of ownersh ip, instead stating that the officers were not required to determine owne rship of the luggage before the ir search. J. A. 624. The cou rt likewise no ted that Dura n had never claimed ownership of the su itcases. Finally, the court determined that, eve n if Duran had standin g to bring a Fourth Amendment challenge, sup pression would still be inappropriate because

5 Kaos reliably alerted Officer Wright to the presence of drugs in the luggage hold and therefore created probable cause to search the luggage. Duran ultimately pleaded guilty to conspir acy with intent to distribut e cocaine and possession with inte nt to distribute c ocaine. T he district court ac cepted his cond itional plea, which permitted him to appeal the denial of his motion to suppre ss. The district court ultimately imposed a sentence of 10 8 months plus a term of sup ervised release and a mandatory special asse ssment of $200. II. We review legal concl usions in a motio n to suppress de novo. United States v. Castellanos, 716 F.3d 828, 832 (4th Cir. 2013). We review a d istrict court’s factual findings— including it s determination that property was aban doned — for clear error. United States v. Ferebee, 957 F.3d 406, 41 6 (4th Cir. 202 0). When a motion to sup press “has been denied, we review the evide nce in the light most favorable to the government.” United States v. Rush, 808 F.3d 1007, 1 010 (4th Cir. 2015). III. On appeal, Duran challenges the district court’s determi nation that he lacked standing to challenge the officers’ sear ch of t he first suitcase, which was searched bef ore any disclaimer by Du ran, and the sec ond suitcase, which w as searched after Duran’ s disclaimer. Because D uran had not aban don ed the first suitca se prior to the officers’ search, the district c ourt’s determination that Duran lacke d standing to challenge the search of that suitcase was cle arly erroneous.

6 A. The Fourth Amendmen t guarantees “[t]he right of the p eople to be s ecure in the ir persons, houses, papers, and effects, against un reasonable searches and seizures.” Whren v. United States, 517 U.S. 806, 809 (1996). Fourth Amendment rights ar e “personal” and “ must be invoked by an ind ividual.” Minnesota v. Carter, 525 U.S. 83, 88 (1998). To challenge the legality of a search, an individual must prove he has a “legitimate expectation of privacy” in the item or area searc hed. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). It is t he defendant’s burden to e stablish standing by a preponderance of the evidence. United States v. Daniels, 41 F.4 th 412, 415 (4th Cir. 2022). But the government bears th e burden of demonstrating tha t a warrantless seizure was r easonable. United States v. Watson, 703 F.3d 684, 689 (4th Cir. 201 3); see Unite d States v. D enny, 441 F.3d 1220, 1226 (10th Cir. 2006). To determine whether a defendant has a reasonable expectation of privacy in property, we ask “whe ther that person claim s an ownership or pos sessory interest in the property, and whether he has e stablished a right or taken precautions to exclude others f rom the property.” Castell anos, 716 F.3d at 833–34 (citing United States v. Rushe r, 966 F.2d 868, 875 (4th Cir. 1992)). An individual who abandons pr operty relinquishes their privacy interest in the pr operty and lacks standing to challenge a search. Ferebee, 957 F.3d at 413. We assess an individua l’s standing to cha llenge a search at the time of the search. United States v. Smith, 21 F.4t h 122, 132–33 (4th Cir. 2021). B. First, we agree with the district c ourt that Duran abandoned the second suitcase when he twice disa vowed ownership of the suitcases before the officers searched it. S ee

7 J.A. 267; J.A. 624. Therefore, he lack s standing to challenge the search of the second suitcase. 2 But we hold that the dis trict court clearly err ed in deter mining that Dur an abandoned the first suitcase. A gain, a defendant’s standing is assessed at the time of the officer’s search. Smith, 21 F.4th at 132–33. Because the search of the first suitcase occurred before Duran’s disavowal, J. A. 50–51, the officers had no indication that anyone disclaimed the suitcases prior to their initial search. What’ s more, it was the gov ernment’s burden to establish that the officers’ warr antless search of the first s uitcase was per missible. So though a district court’s determination tha t a defendant “abandoned his privacy interest” i n certain property is “a finding of fact,” Ferebee, 957 F.3d at 4 16, that determination was “against the clear weight of the evidence” here. United States v. Mayberry, 125 F.4th 132, 145 (4th Cir. 2025), ce rt. denied, 145 S. Ct. 2 722 (2025) (interna l citations omitted). Additionally, Duran m aintains standing to challenge th e search of the first suitcase. In his post - suppression hearing memorandum, Duran pointe d to the government’s ev idence connecting Duran to the suitcases: the surveill ance video footage of Duran loadin g the two suitcases into the bus’s luggage comp artment at the Atlanta bus term inal. See J.A. 196, 301– 02. Indeed, the government pointed to th at footage to establish Duran’s “possession ” of or “control” over th e suitcases. United States v. Rose, 3 F.4th 72 2, 727 (2021). This 2 W e reject Duran ’s argument that his state ment disavowing own ership of the suitcases should ha ve been su ppressed. Dur an did not need to be Mirandize d before he was questioned beca use the circumstances of the officers’ questioning did not constitute custodial interrogation. See United States v. Leggette, 57 F.4th 406, 410 (4th Cir. 2023) (“[S]o long as a defendant is not ‘in custody,’ then statements ma de during an interrogation remain admissible, eve n if the defendant w ere not given Mirand a warnings.”).

8 surveillance footage suf fices to establish that Duran maintained an ownership o r possessory interest in the suitcases and accordingly mai ntained a reasonable expectation of privacy in the suitcases. 3 S ee Bon d v. United States, 529 U.S. 334, 336 (2000) (recognizing that an individual possesses a privacy interest in a bag they carry onto a bus). Duran therefore has sta nding to challenge the search of the first suitcase. IV. We now turn to the merits of Duran’s Fourth Amendment claim. Neither party disputes on appeal th at the officers stopped the bus pursuant t o a lawful traffic stop, received consent from the bus driver to search th e bus’s luggage hold, and pe rmissibly deploy ed Kaos to sniff the hold. See United States v. Branch, 537 F.3d 328, 3 36 – 37 (4th Cir. 2008) (noting that because a dog sniff is not a search, its use need not be justified du ring a lawful traffic stop). Instead, Duran asks us to consid er whether Kaos’s a lert created probable ca use to search his suit case. We hold that the dist rict court’s det ermination tha t Kaos alerted was not clearly erroneous, so it provided probable ca use to conduct the wa rrantless search. A. A warrant less search or seizure is presumpt ively un reasonable un der the Fourth Amendment, subject only to certain “spe cifically established and well -delin eated 3 For the fir st time on appeal, Dura n argues that he has a common - law property interest in the lugg age as a ba ilee. We need not address t his argument, both because the record establishes that Duran maintained a legitimate expectation of privacy i n the suit cases prior to his di savowal of owners hip and because the argu ment is forfeited. See Richardson v. Clarke, 52 F.4th 614, 625 (4th Cir. 2022) (“Generally, parties may not raise new arguments on a ppeal that were not first presented to the distric t court below, absen t exceptional circumstances.”).

9 exceptions.” Arizona v. Gant, 556 U. S. 332, 338 (2009) (citi ng Katz v. United States, 38 9 U.S. 347, 357 (1967)). One such excepti on involves sear ches of automobiles: “[i ]f a car is readily mobile and probable ca use exists to believe it contains co ntraband,” the Fo urth Amendment permits a warrantless search. Pennsylvania v. L abron, 518 U.S. 93 8, 940 (1996) (per curiam). O nce police have probable cause to conduct a search, they may search “every part of the vehicle and its contents t hat may conceal the object of the search.” United States v. Ke lly, 592 F.3d 58 6, 590 (4th Cir. 2010) (citing United States v. Ross, 456 U.S. 798, 825 (1982)). This in cludes contai ners in vehicle s. California v. Aceve do, 5 00 U.S. 565, 570 (1991). We have not explicitly determined that the automobile excep tion applies to buses. But the justifications for the automobile exc eption — the movabilit y and lesser privacy expectation s inherent in vehicles —ap ply wit h equal, if not greater, force to buses. See Kelly, 592 F.3d at 590 (recognizing that this “ lesser expectation of privacy” is because cars are “movable public objects” subject to “ ‘ pervasive sc hemes of regulation ’ ”) (citing California v. Carney, 471 U.S. 386, 3 92 (1985)). We see no reason to depart from our sister circuits on this p oint. See United State s v. Tuton, 893 F.3d 5 62, 571 (8th Ci r. 2018) (affirming denial of a motion to suppre ss evidence seized from l uggage during a traffi c stop of a bus); Un ited States v. Pina, 648 F. App ’ x 899, 901 (11th Cir. 2016) (search of commercial bus and pa ssengers’ luggage was lawful under the aut omobile exception). Of course, warrantless searches must still be support ed by probable cause. A reliable dog alert can create that probable cause. See United States v. Green, 740 F.3d 275, 282 (4th Cir. 2014). Pr obable cause to conduct a search based on a do g’s alert exists when

10 the totality of the circumstances, “viewed through the lens of commo n sense, would ma ke a reasonably prudent p erson think that a searc h would reveal c ontraband or evidence o f a crime.” Florida v. Harris, 568 U.S. 237, 248 (2013). Whether a drug detection do g has reliably alerted is a que stion of fact. See United States v. Curry, 47 8 F. App’x 42, 43 –44 (4th Cir. 2012) (citi ng United States v. Ma son, 628 F.3d 123, 130 (4th Cir. 2010)). The scope of a warrantless search may onl y be as broad as a magistrate, i n accordance with the warrant p articularity re quirement, could autho rize. United States v. Ross, 456 U. S. 798, 800 (1982). In Florida v. Ha rris, the Supreme Court specified that “ev idence of a dog’s satisfactory performan ce in a certification or t raining program can itself provide su fficient reason to trust his alert. ” 568 U.S. at 24 6. T he Court emphasized t hat a dog’s reliability should be measured based on performance “ in c ontrolled testing enviro nments,” rather than its field performance. Id. The refore, the Court counseled that, to challen ge a dog’s reliability, a defendant may “contest the adequacy of a certificati on or training program.” Id. at 247. Evid ence of the dog or ha ndler’s history in the field may also at times be relevant. Id. And even a gen erally reliable dog’s alert may undermine proba ble cause if the handler cued the do g or “the team work ed under unfamiliar co nditions.” Id. In any case, the Court was clear: “[i ]f the State has produced proof from controlle d settings that a dog performs reliably in detectin g drugs, and the defendant has not contested that showing, then the court should find proba ble cause.” Id. at 248. See Green, 740 F.3d at 283 (a pplying Har ris framew ork to hold that dog’s 43% accuracy in the field, in conjunction with dog’ s training and certific ation record, suffic ed to establish dog ’s

11 reliability). When a dog has been certified and other wise proven g enerally r eliable, “the only question is whethe r the police manufactur ed [the dog’s alert].” Varner v. Roane, 98 1 F.3d 288, 294 (4th Cir. 2020). B. At the suppression he aring, the district co urt had the opportuni ty to consider testimony from Offic er Wright and Duran ’s expert witness, An dre Falco Jimenez, regarding Kaos’s non-final alert. Based on his experience handling Kaos, Offi cer Wright testified that Kaos had alerted but had not sit down because he “won’t sit in the mud.” J.A. 257. Mr. Jimenez, offe red as an expert in dog training, handling, and identification of aler ts for narcotics, provid ed his opinio n that Kaos did not aler t to the pre sence of narcotics at all. J.A. 345. The distr ict co urt also considered Kaos’s trai ning and certification records. Kaos was certified as a drug detection dog in 2020 and had been rec ertified every year sinc e by the National Narcotic Detector Dog As sociation. His training recor ds demonstrat ed that he had achieved 100% accuracy during his training in a contr olled environment. Moreover, he had positively alerte d to the presence of narcotics fourteen o ut of the nineteen times he was deployed in the field. Based on this recor d, the district court fou nd Kaos “sufficiently reliable and that his positive alert for the p resence of the odor of narcotics provided probable cause for the search of the luggage contained in the com partment.” J.A. 626. This district court’s factual determi nation was not clearly err oneous. The district court was within its right to credit Officer Wright’ s testimony ov er Mr. Jimenez. See United States v. Patiutk a, 804 F.3d 684, 689 (4th Cir. 2015) (“We owe particular deference

12 to a district court ’ s cr edibility determination s, for it is the role of the district c ourt to observe witnesses and weigh their credibilit y during a pre - trial motion to sup press. ”) (cleaned up). I n conjunction with the eviden ce of Kaos’s train ing record and con tinued certification, the district court justif iably con cluded that Kaos alerted in this case. The record provides no r easonable basis for us to revisit t he district court’s factu al determination on appeal, particularly he re, where there was a robus t record establishing Kaos’s reliability. Kaos’s alert a lso sufficed to create probable ca use. The video eviden ce reflects that Kaos alerted to the limited area of the luggage hold where the suitca ses were located. See Kelly, 592 F.3d at 592 (“Probable cause is sim ply not so exacting a standard that it requires a dog to be able to pinpoint the location of drugs within a foot or two.”). The limite d geographic scope of Kaos’s alert, alongsid e the record evidence of Kaos’s reliability, justifies affirmance of the district c ourt’s prob able cause determinatio n. While we recognize that the district co urt’s factual finding was not clearly erroneo us, the district court could have properly found Kaos’s alert to be unreliable. Mr. Jim e nez testified that Kaos did not alert to the presen ce of narcotics and that Officer Wright cued Kaos. He also question ed the reliability of Kao s’s training record. Th e district court cou ld have justly found that s uch testimony undermi ned the credibility of K aos’s alert. And we agree with our sister circuit that reliance on such a n alert does not provi de law enforcement with unbounded authori ty to search for contraba nd. See Tuton, 893 F.3d at 571 (“This conclusi on obviously doe s not mean that hundred s of bags in the lugg age compartment of anothe r bus could be searched without consen t or a warrant based on a

13 drug dog’s general ale rt.”). As always, we look to the to tality of the circumstances t o determine whether pro bable cause exists i n a specific case. Harri s, 568 U.S. at 244. * * * The district court did not clearly err in finding that Kao s alerted to t he presence of narcotics. On this record, we see no rea son to overturn the district co urt’s decision finding probable cause. For the foregoing re asons, we affirm the ju dgment of the district court. AFFIRMED