CA5: Lying about possession of something is not abandonment

Defendant was pulled over for a traffic stop and was at his mother’s house. He tossed his jacket over the fence into her yard, and that was not an abandonment of his reasonable expectation of privacy in the jacket. Lying about possession of something is not abandonment. United States v. Ramirez, 2023 U.S. App. LEXIS 11496 (5th Cir. May 10, 2023):

Defendant Albert Ramirez was convicted of being a felon in possession of a firearm after law enforcement officers discovered a gun in his jacket during a warrantless search. The sole question on appeal is whether, by tossing his jacket over a fence onto his mother’s property, Ramirez forfeited his property or privacy interest in the jacket, thereby freeing officers to seize and search the jacket heedless of Fourth Amendment constraints.

He did not. Whether considered under the rubric of Ramirez’s property rights or that of his reasonable expectation of privacy, Ramirez’s jacket continued to enjoy Fourth Amendment protections because Ramirez did not demonstrate an intent to abandon it. As the Government has not argued that an exception to the Fourth Amendment’s warrant requirement applied to the search, we vacate and remand for further proceedings not inconsistent with this opinion.

. . .

Finally, the Government argues that Ramirez “implicitly den[ied] the jacket and the pistol in its pocket” when, while being patted down, he insisted that he did not have a gun. It is true that a suspect may relinquish his privacy interest in an item by disclaiming ownership of it, as Colbert demonstrates. But the Government did not identify, and we have not found, any case holding that a suspect loses his reasonable expectation of privacy in an item by lying about its contents.

The facts of this case parallel those of our sister circuit’s decision in United States v. McClendon, 86 F. App’x 92 (7th Cir. 2004). There law enforcement seized a defendant’s satchel, which the defendant had placed on his open bedroom windowsill. Id. at 94. The government argued that the defendant had abandoned the satchel, and thus retained no reasonable expectation of privacy in its contents, by placing it where it was easily accessible to passersby. Id. The Seventh Circuit disagreed, distinguishing cases like those the Government relies on here because “[t]he Fourth Amendment does not protect an individual’s privacy only if he ensures that his possessions are placed beyond the grasping reach of his fellows.” Id. at 94. In the Seventh Circuit’s view, “placing an item on one’s own bedroom window sill is quite different than tossing an item on the ground near a public street.” Id. at 95.