CA7: Disclaimer of ownership of a backpack in hand was not a complete abandonment, but he could still show a REP, but did not

Officers had search warrants and were on a drug sweep. That knocked on one door, and defendant ran out the back carrying a backpack. The officers were justified in stopping him and searching the backpack for a weapon. He got on the ground when directed, and the officers were not obliged not to look in the backpack just because he stopped. When stopped, he disclaimed ownership in the bag. That was not a pure abandonment, but he did not show a subjective expectation of privacy in the backpack. United States v. Carlisle, 614 F.3d 750 (7th Cir. 2010):

While we ultimately agree with the government’s position, this case is closer to the line than it appears at first glance. Although Carlisle disclaimed ownership of the bag, there is no dispute that Carlisle was legitimately in possession of the property. This distinguishes Carlisle’s situation from that of Rawlings, where Cox was in possession of the purse at the time of the search, and Peters, who was not near the car at the time of the search. Carlisle also indicated that he intended to maintain privacy in the bag by holding onto it as he left the house and by keeping it closed. The issue of exclusivity is murkier. From the testimony, it appears that at the time he was in possession of the bag, he had the right to exclude all others from the bag except Chapman. This factor distinguishes this case from Amaral-Estrada, where Amaral-Estrada expected others to take things from and leave things in the car while he was entrusted with it. What makes it questionable that Carlisle had exclusive control is the appellant’s own testimony that he did not know what was in the bag or who was using the bag immediately prior to his taking it. This testimony strongly cuts against any claim of exclusive control and makes Carlisle’s situation similar to Rawlings’s situation where he lacked control over who had access to the searched property prior to the search. What pushes this case fully over the line is the complete lack of testimony that Carlisle had any subjective expectation that the bag would remain free from governmental invasion. Carlisle bears the burden of proving that he had a subjective privacy interest in the bag sufficient to challenge the search. See Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619. The record lacks any evidence of this subjective expectation and Carlisle’s testimony cuts against a finding of any subjective expectation of privacy in the bag since he disclaimed ownership or even knowledge of its contents. Therefore, we find that Carlisle did not have a reasonable expectation of privacy in the backpack sufficient to allow him to challenge the search. Because Carlisle cannot validly assert a Fourth Amendment challenge to the search of the backpack, we do not reach the merits of whether the search was proper.