DE: The standard for abandonment is objective; actual disclaiming ownership not required

The standard for abandonment is objective. What do the facts show? Here, defendant left his backpack in a place where he could not keep an eye on it. Disclaiming ownership alone is not the test. Patton v. State, 2019 Del. LEXIS 220 (Apr. 30, 2019):

On the undisputed facts, Patton left his backpack on the ground by a stop sign in a busy parking lot, went far away from it, and limited his ability to protect or even see it. Although Patton argues that to find that he had no reasonable expectation of privacy in his backpack the State must show that Patton disclaimed ownership of the backpack, that is not the test. Rather, based on the totality of the circumstances, this Court must determine whether Patton objectively abandoned the backpack.⁸ When someone leaves personal property in plain sight, in a busy place, and departs the area, that person has no reasonable expectation of privacy in the abandoned personal property. Because that is what Patton did here—and failed even to try to put the backpack under a bush or under some cover—he cannot claim that his privacy rights were intruded upon. For that reason, the judgment of the Family Court is affirmed.

8. Whether a person abandoned property for Fourth Amendment purposes is an objective test, and Patton’s subjective hope that no one would find the backpack and explore its contents is not relevant. United States v. Burbage, 365 F.3d 1174 (10th Cir.2004) (finding that a train passenger, who said backpack in overhead rack belonged to another passenger who allowed him to put a portfolio in it, thereby “lost any objectively reasonable expectation of privacy in the backpack as a whole”). Indeed, even Patton concedes that the test is objective. See Reply Br. at 1 (“When determining whether property has been abandoned in the context of search and seizure analysis, the court must administer an objective test …”) (emphasis added).