Fifth Circuit: Placing Jacket Within Fenced-In Area of Home in Presence of Police Evidences Clear Intent Not to Abandon It, Warrantless Search Violates Fourth Amendment Rights
by Richard Resch
The U.S. Court of Appeals for the Fifth Circuit held that police violated a defendant’s Fourth Amendment rights by conducting a warrantless search of his jacket that he tossed over the fence at his mother’s home as police were initiating contact because he did not “abandon” his jacket under either Katz’s expectation of privacy test or Jones’ trespassory test.
San Antonio Police Department Officer Christopher Copeland was on the lookout for a truck registered to the mother of Albert Ramos Ramirez, Jr. He observed Ramirez driving the truck, rolling through a stop sign and pulling into his mother’s driveway. Copeland attempted to initiate a traffic stop, but Ramirez had already exited the truck and tossed his jacket over the fence around his mother’s home, landing on top of a closed trash bin.
Copeland pat-frisked him, placed him in handcuffs, and detained him in the backseat of his patrol vehicle. While patting him down, Copeland asked if he had any weapons. Ramirez stated that he did not and gave his consent to search the truck. No contraband was found in it.
Without asking for consent to enter the property or search the jacket, Officer Craig Pair retrieved Ramirez’s jacket by reaching over the fence and searched it, finding a gun in one of the pockets.
Ramirez was charged with being a felon in possession of a firearm. He filed a motion to suppress the gun, arguing that he did not abandon his jacket by tossing it over the fence and that the warrantless search violated his Fourth Amendment rights. During the suppression hearing, evidence showed that Ramirez lived at his mother’s house for most of his life, he visited daily to prepare meals for her, and he received mail there.
The U.S. District Court for the Western District of Texas denied the motion, ruling that Ramirez abandoned the jacket. He pleaded guilty and was sentenced to 46 months’ imprisonment. He timely appealed.
The Court began its analysis by noting that until quite recently, Fourth Amendment analysis focused exclusively on the “reasonable expectation of privacy” framework from Justice Harlan’s concurrence in the landmark case of Katz v. United States, 389 U.S. 347 (1967). In fact, this was the approach used by the District Court, according to the Court.
A criminal suspect can forfeit his reasonable expectation of privacy – and by extension, Fourth Amendment protections – through abandonment. See United States v. Colbert, 474 F.2d 174 (5th Cir. 1973). The Court stated that the textbook example of abandonment is when a fleeing suspect tosses contraband to the ground as he runs from the police. By tossing the property, the fleeing suspect signals to the world that it does not belong to him, the Court explained. In determining whether abandonment occurred, courts examine all “relevant circumstance existing at the time” to determine “whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question.” Colbert.
The Court rejected the District Court’s determination that Ramirez abandoned his jacket by tossing it over his mother’s fence, stating “we do not think it can fairly be said that Ramirez manifested an intent to disclaim ownership in his jacket simply by placing it on the private side of his mother’s fenced-in property line.” It explained that this is a markedly different situation than if he had dropped his jacket on a public sidewalk and ran away or insisted the jacket did not belong to him before police searched it.
The Court declined to adopt the Government’s proposed blanket rule that a “defendant abandons an object when he throws it to the ground as officers approach.” It stated that the case law relied upon by the Government for its blanket rule involves suspects discarding evidence in a public place while fleeing from police. In contrast, the operative facts are materially distinguishable in the present case because Ramirez did not discard his jacket in a public place nor was he fleeing from Copeland when he tossed it onto his mother’s private property, the Court explained. Therefore, the Court concluded that Ramirez did not abandon his jacket and thus retained his reasonable expectation of privacy in both the jacket and its contents, so Copeland’s search of it was subject to Fourth Amendment protections, which Copeland violated by conducting a warrantless search.
The Court did not end its discussion there; rather, it continued by also analyzing the case within the trespassory framework of Fourth Amendment analysis clarified and reiterated in United States v. Jones, 565 U.S. 400 (2012), which instructs that the Fourth Amendment protects against “government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”
After Katz but prior to Jones, it was thought that Katz’s expectation of privacy test supplanted the common law physical trespass test for Fourth Amendment analysis. But Jones teaches that is not correct, holding that, separate and distinct from Katz’s expectation of privacy, the Fourth Amendment restricts physical intrusions that would have been considered a “search” within the meaning of the Fourth Amendment at the time it was adopted. Consequently, after Jones, courts can utilize either the test in Katz or Jones or both. See Florida v. Jardines, 569 U.S. 1 (2013).
The Court stated that it is unaware of any cases examining the “interplay between abandonment and Jones’s property-rights rubric,” so it turned to secondary sources that stated the owner’s intent was the central question for abandonment claims under the common law. See 2 William Blackstone, Commentaries 6. Under common law abandonment jurisprudence, where a disputed item was left was dispositive evidence of intent, according to the Court. See Livermore v. White, 74 Me. 452 (1883). The Court cited McLaughlin v. Waite, 5 Wend. 404 (N.Y. 1830), which held that if personal property is “secreted in the earth, or elsewhere, the common law presumes the owner placed them there for safety, intending to reclaim them,” and so, there is no intent to abandon the property.
Applying the foregoing property-rights rule of abandonment to the present case, the Court concluded that Ramirez did not abandon his property interest in his jacket because placing it within the fenced-in area of his mother’s property “excludes the very idea of abandonment.” It explained that he placed it there for safekeeping with the clear intent of retrieving it later. Thus, the Court held Ramirez did not abandon his jacket, so it was subject to Fourth Amendment protections under Jones’ property-rights analysis as well as Katz’s expectation of privacy framework.
Accordingly, the Court vacated the denial of Ramirez’s motion to suppress as well as his conviction and sentence. See: United States v. Ramirez, 2023 U.S. App. 11496 (5th Cir. 2023).
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