MA: Leaving belongings by side of road when moving and calling another to pick them up was not an abandonment, but it was a relinquishment of a reasonable expectation of privacy

Defendant who left his belongings at the side of the road in plastic bags along with a TV set after moving out of a mobile home who called somebody to assist in picking them up did not abandon them. He did, however, have a reduced expectation of privacy from the placement and appearance of the property. The defendant had been arrested, and the police decided to go back and take the property as evidence. Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 876 N.E.2d 431 (2007):

The reason that the defendant’s motion to suppress fails is because of his inability to establish that his subjective expectation of privacy was reasonable. Unlike certain exceptions to the warrant requirement, where the burden of demonstrating that an exception applies is allocated to the Commonwealth, here the defendant “must bear the threshold burden of showing that a warrantless search or seizure occurred.” Commonwealth v. Bly, 448 Mass. at 490, citing Commonwealth v. D’Onofrio, 396 Mass. 711, 714-715 (1986). Put differently, before a defendant may thrust on the Commonwealth the burden of justifying why a warrant was not obtained, that defendant must establish initially that a search in the constitutional sense has occurred. See Commonwealth v. D’Onofrio, supra at 714 (“Unless the defendants had a reasonable expectation of privacy at [the premises] when the officer made observations there, there was no ‘search’ within the meaning of the Fourth Amendment”). In these circumstances, the defendant must demonstrate both that he had a subjective expectation of privacy and that society would recognize such expectation as reasonable. See Commonwealth v. Mamacos, 409 Mass. at 639; Commonwealth v. Montanez, 410 Mass. at 301.

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The defendant indeed may not have relinquished his purpose, which was to retain the property without interference by others. He did, however, surrender control of the property in a manner that was inconsistent with a reasonable expectation that the bags would be left undisturbed. “In evaluating the reasonableness of an individual’s expectation of privacy, we look to a number of factors, including … whether the defendant controlled access to the area … and whether the area was freely accessible to others.” Commonwealth v. Montanez, 410 Mass. at 301-302. “[A]n individual can have only a very limited expectation of privacy with respect to an area used routinely by others.” Sullivan v. District Ct. of Hampshire, 384 Mass. 736, 742 (1981). We look also to whether a defendant “has taken normal precautions to protect his privacy.” Commonwealth v. Berry, 420 Mass. 95, 106-107 & n.9 (1995) (cigarettes and matches left on counter in public area of police station; expectation of privacy not reasonable).

Here, the defendant left his property by the side of the road. He could not reasonably have been confident that the bags would not be taken by a traveler who thought that the contents had been discarded, or who had no concern whether the bags belonged to another. Nor could he rely reasonably on an assumption that a passerby would not look in the bags. While, as the judge noted, there was no evidence regarding the level of use of the road, it is not disputed that the road was available for public use. “It is well established that, in general, government agents may make a warrantless search of areas in which the public has free access ….” Commonwealth v. Krisco Corp., 421 Mass. 37, 42-43 (1995), citing United States v. Hall, 47 F.3d 1091, 1095 (11th Cir.), cert. denied, 516 U.S. 816 (1995). The facts here differ considerably from those of Commonwealth v. Straw, 422 Mass. 756, 758-762 (1996) (locked briefcase thrown into fenced-in curtilage), and Commonwealth v. Small, 28 Mass. App. Ct. at 535-536 (reasonable expectation of privacy where luggage in airline transit unclaimed for three hours). The police had no less a right to look in the bags, or to carry them away, than did any passerby.

Comment: The logic of this opinion is compelling, and one cannot quarrel with it.