NE adopts an objective test on the totality of circumstances for abandonment from CA8 cases

Nebraska adopts an objective test on the totality of circumstances of abandonment from Eighth Circuit cases. State v. Dixon, 306 Neb. 853 (Aug. 21, 2020):

We agree with the reasoning of Basinski and Nowak, and we adopt a similar test for determining abandonment. We now hold that to show abandonment of personal property for purposes of the Fourth Amendment, the State must establish by a preponderance of the evidence that the defendant’s voluntary words or conduct would lead a reasonable officer to believe the defendant relinquished his or her property interests in the item. This is an objective test based on the information available to the officer, and the defendant’s subjective intent to later reclaim the item is irrelevant. When determining whether property has been abandoned, courts consider the totality of the circumstances, and pay particular attention to the nature and location of any physical relinquishment of the property and any explicit denials of ownership. We note this test is, in substance, the test applied by the district court in this case.

(b) No Clear Error in Finding Dixon Abandoned Backpack

Applying the test announced above, we conclude the district court did not clearly err in finding that Dixon abandoned his backpack.

Upon seeing police, Dixon entered a drainage ditch next to the road, an area generally open to the public, and left his backpack there. His action in doing so would cause a reasonable person in the position of the investigating officers to conclude he was physically relinquishing the backpack to make it easier for him to later claim that he never possessed it. In this respect, his action is similar to those at issue in State v. Vasquez-Arenivar and State v. Cronin, where the defendants discarded incriminating substances once they encountered police, and the Court of Appeals found obvious abandonment. Further, because Dixon disposed of the backpack in a location accessible to the general public and walked away, a reasonable person would believe that his possessory interest in the property was so eroded that anyone had a right to retrieve it. Viewed objectively, Dixon’s action of discarding the backpack in the ditch upon seeing a police officer is strong evidence of intent to physically relinquish the backpack. And while it is true that Dixon did not deny ownership of the backpack once it was discovered and retrieved by police, that is just one of many factors to be considered in the totality analysis and does not, as Dixon suggests, necessarily preclude a finding of abandonment.

Considering the totality of the circumstances, we find the trial court did not clearly err in finding Dixon abandoned the backpack and thus had no Fourth Amendment privacy interest in it. His motion to suppress the evidence found as a result of the search of the backpack was properly denied, and his first assignment of error has no merit.

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