The United States appeals an order granting Terry Cofield's motion to suppress evidence in his criminal case for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). United States v. Cofield, 108 F. Supp. 2d 1374 (S.D. Fla. 2000). This case involves a warrantless search of Cofield's luggage at a train station. Whether or not that search violates the Fourth Amendment, and thus whether suppression is required, depends upon whether one believes the version of the events advanced by the government or by Cofield. The government contends that Cofield abandoned his luggage at the train station and thus the search of the luggage was constitutional, while Cofield asserts that the bags were taken from him and searched without his consent.

The district court referred Cofield's motion to suppress to a magistrate judge in order to hear testimony, make credibility determinations, and submit a report and recommendation. At this hearing, the government offered the testimony of two of the law enforcement officers who stopped Cofield at the train station, while Cofield and his girlfriend, who was also present at the train station, testified on Cofield's behalf. After hearing the testimony of all of the witnesses, the magistrate judge found the testimony of the government's witnesses to be "fully credible" based upon "each officer's demeanor and manner of testifying, as well as the consistency and logic of their rendition of the events." Conversely, the magistrate judge found Cofield's testimony to be "internally inconsistent and somewhat at odds with the testimony of [his girlfriend]." Accordingly, the magistrate judge recommended that the district court deny the motion to suppress.

The district court, however, expressly rejected the magistrate judge's credibility findings without convening a second evidentiary hearing and granted Cofield's motion finding (1) that Cofield's testimony was credible based upon Cofield's prior consistent statements, and (2) in the alternative, that even crediting the government's version of the facts as true, the government had failed to show as a matter of law that Cofield abandoned his luggage. This interlocutory appeal followed.

On appeal, the government argues that the district court committed reversible error by rejecting the magistrate judge's express credibility findings without first rehearing the disputed testimony, and that the testimony of the government witnesses, if credited as true, demonstrates that Cofield abandoned his luggage. We consider each argument in turn1.

1. Rejection of the magistrate judge's credibility findings

Whether the district court may wholly reject a magistrate judge's credibility findings without rehearing witness testimony is an issue of law which we review de novo. See, e.g., United States v. Register, 182 F.3d 820, 841 (11th Cir. 1999).

In United States v. Raddatz, 447 U.S. 667 (1980), the Supreme Court held that a district court is not required to rehear witness testimony when accepting a magistrate judge's credibility findings. See id. at 675-76, 100 S. Ct. 2406. The Court then stated, "we assume it is unlikely that a district court would reject a magistrate's proposed findings on credibility when those findings are dispositive and substitute the judge's own appraisal; to do so without seeing and hearing the witness or witnesses whose credibility is in question could well give rise to serious questions which we do not reach." Id. at 681 n.7, 100 S. Ct. 2406 (emphasis in original). Addressing this unreached question, this Court has held that generally a district court must rehear the disputed testimony before rejecting a magistrate judge's credibility determinations. Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980)2; see also Cullen v. United States, 194 F.3d 401, 406 (2d Cir. 1999); Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995). In United States v. Marshall, 609 F.2d 152 (5th Cir. 1980), we held that this general rule is subject to a small exception in the "rare case" where "there . . . [is] found in the transcript an articulable basis for rejecting the magistrate's original resolution of credibility and that basis . . . [is] articulated by the district judge." Id. at 155. This is not the "rare case" discussed in Marshall, as the transcript here provides no basis to reject the magistrate judge's credibility findings. Thus, the district court erred when it substituted its credibility determinations for those of the magistrate judge without first rehearing the disputed testimony.

Because a district court's finding regarding abandonment involves the resolution of factual disputes, we ordinarily review abandonment determinations for clear error. See United States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994). In this case, however, because the district court found that, even accepting the government's evidence as true, the government had not shown, as a matter of law, that Cofield abandoned his luggage, we review the district court's legal determination de novo. See Register, 182 F.3d at 841.

Generally, an individual enjoys a reasonable expectation of privacy in personal luggage. See United States v. McKennon, 814 F.2d 1539, 1544 (11th Cir. 1987) (citing United States v. Place, 462 U.S. 696, 707 (1983)). However, an individual who abandons or denies ownership of personal property may not contest the constitutionality of its subsequent acquisition by the police. See Ramos, 12 F.3d at 1023; United States v. Hawkins, 681 F.2d 1343, 1345 (11th Cir. 1982).

In determining whether there has been abandonment, the "'critical inquiry is whether the person prejudiced by the search . . . 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.'" Ramos, 12 F.3d at 1022 (quoting United States v. Winchester, 916 F.2d 601, 603 (11th Cir. 1990)). Whether abandonment has occurred is a question of intent that may be inferred from acts, words and "other objective facts." United States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir. 1982). While the individual whose property was searched bears the burden of proving a legitimate expectation of privacy in the items searched, the burden of proving abandonment is on the government. See Ramos, 12 F.3d at 1023.

According to the government's witnesses, Cofield was holding two bags at the time the officers initially asked if he would consent to a search. Cofield refused consent, stating that a narcotics-detecting dog had already "searched" his bags. The officers then explained the dog sniff procedure and again asked for permission to search his bags. At this point, Cofield removed the bags from his shoulders and put them on the ground, denied that the bags belonged to him, and attempted to walk away from the area. To confirm Cofield's denial of ownership, the officers asked Cofield if the bags belonged to him and Cofield responded, "No, those are not my bags." The officers then made a loud announcement asking whether the bags belonged to anyone. No one, including Cofield, claimed ownership of the bags. The officers then searched the bags and found 1,411 grams of cocaine base hidden inside one of the bags.

Contrary to the district court's conclusion, if these facts are taken as true, it is clear that Cofield abandoned the bags and the subsequent search was constitutional. Cofield was not in custody when he placed the bags on the ground, nor were there any other conditions that would have led Cofield to believe that he was not free to refuse consent.3 See, e.g., United States v. Smith, 201 F.3d 1317, 1321-22 (11th Cir. 2000). Moreover, if the government's version of the facts is believed, Cofield's decision to abandon the bags did not result from police misconduct. See Pirolli, 673 F.2d at 1204 (stating abandonment is involuntary when precipitated by police misconduct).

For the foregoing reasons, the district court's order granting Cofield's motion to suppress is vacated and remanded for further proceedings consistent herewith.4