Oral disclaimer of ownership during search or premises was not abandonment

During a search of a home, defendant disclaimed ownership of a suitcase found inside, and it was not an abandonment as a matter of law. Here, the trial court erred in finding abandonment because the expectation of privacy was so high. Commonwealth v. Augello, 71 Mass. App. Ct. 105, 879 N.E.2d 709 (2008):

In essence, the Commonwealth takes the position in this case that an oral disclaimer of ownership is dispositive on the issue of abandonment as a matter of law. We disagree, and the case law states otherwise.fn6 See Commonwealth v. Paszko, supra; Commonwealth v. Straw, supra. Here, as already noted, the place where the suitcase was found was the defendants’ apartment, and the items were in a closed container and not in plain view. Thus, the location was subject to the highest constitutional protection and the expectation of privacy without question legitimate. In short, the objective facts and the actions of the defendants in locating the objects belie any intent to abandon the objects. These factors must be taken into account along with the words of the defendants in determining intent. See Commonwealth v. Paszko, supra.

6. As a general matter, we are not prepared to say that, as matter of law, disclaiming ownership in property always negates any possibility of thereafter asserting a privacy interest with respect to that property. The question whether a reasonable expectation of privacy exists in any particular case is necessarily fact-dependent and must take into consideration all of the attendant circumstances. If any one factor does predominate, it is not what a defendant says about his relation to seized property, but rather the place in which the property is found and the defendant’s relation to that place. See Commonwealth v. Montanez, 410 Mass. at 301; Commonwealth v. Straw, 422 Mass. at 758-762. As the motion judge found here, there may be good reason to discredit a disclaimer of ownership where to assert the contrary would be strongly inculpatory.

We note, in addition, that we also arguably rejected the Commonwealth’s position that words alone determine the issue in Commonwealth v. Small, 28 Mass. App. Ct. 533, 536 (1990). In Small, police officers, acting on a tip, searched the defendant’s checked airline luggage without a warrant and discovered a cache of illegal drugs. When the defendant subsequently claimed his suitcases, officers confronted him. He dropped the bags and denied they were his. In justifying the search, the Commonwealth claimed in effect that the defendant had abandoned the bags. The court rejected the claim of abandonment based upon the defendant’s dropping of the bags and disclaimer of ownership, because the search had preceded the alleged abandonment; the court also indicated that a “verbal disclaimer” standing alone would not support an inference of abandonment absent “other acts by the defendant to support an inference of disclaimer or abandonment.” Id. at 536.

This view that a mere verbal disclaimer is insufficient to constitute abandonment for Fourth Amendment purposes has wide support in the law of other jurisdictions. …

Accord: United States v. Curry, 2008 U.S. Dist. LEXIS 5438 (D. Me. January 23, 2008), posted today above, finding no abandonment where the disclaimer of ownership came after the search.