D.S.C.: Getting out of vehicle and pushing bag under car was considered abandonment

Defendant got out of a vehicle with a bag and set it down on the ground. He pushed it under the vehicle, but not far. The court concludes that the bag was abandoned by this action. United States v. Davis, 2012 U.S. Dist. LEXIS 162396 (D. S.C. November 14, 2012):

Two possible inferences can be drawn from Davis’s placing the bag on the ground underneath the vehicle. The first is, as Davis argues, that he was hiding the bag—unquestionably in an attempt to prevent Officer Cox from discovering its illegal contents—and that he never intended to relinquish his Fourth Amendment rights in the bag but instead intended to retrieve it later, maintaining an expectation of privacy in the bag and its contents. The second possible inference is that Davis intended to abandon and get rid of the bag, separating it from the vehicle and hoping Officer Cox would not connect it to him. Davis argues that no evidence was introduced to support the second inference, except the mere and insufficient fact that the bag was on the side of the road. However, Davis’s subjective expectation, by itself, is not dispositive of this issue. Rather, his expectation of privacy, for Fourth Amendment purposes, must be objectively reasonable.

. . .
Here, although Davis did not attempt to flee, the core facts are the same. After Officer Cox ordered the driver from the vehicle, Davis made his decision to remove the bag from the vehicle. Why he made that decision and whether he expected to later retrieve the bag are not determinative of the analysis so long as Davis’s expectations were objectively unreasonable. Much like the defendant in Jones, Davis’s ability to recover the bag depended entirely on fate—specifically the possibility that either Officer Cox or Deputy Smith would not observe him retrieving the bag in the event he was freed to leave. In light of the risk Davis faced in placing the bag under the vehicle on the side of a public highway where anyone could pick it up, any expectation of privacy Davis had, by society’s standards, was objectively unreasonable.

Therefore, the Court finds that Davis abandoned the bag and waived any Fourth Amendment rights he had in it and its contents. Because the bag was abandoned, Officer Cox and Deputy Smith did nothing unlawful in seizing and searching the bag after it was discovered. …