Defendant reported he was shot by an intruder and called 911. He went to the hospital and a surgeon removed the bullet. The search warrant for his office for evidence of him shooting himself was specific and the good faith exception would apply anyway. More to the point, however, calling 911 for help was consent to everything that happened thereafter. “He admits that his 911 call and request for aid was consent to the surgical removal of the bullet.” There was no reasonable expectation of privacy in the bullet removed from him. Finally, firing the gun was an abandonment of the projectile, even though it ended up in him. United States v. Gaye, 2025 U.S. App. LEXIS 5469 (10th Cir. Mar. 10, 2025):
So the precise dispute is over what rights or interests Mr. Gaye had in the bullet once it was removed from his leg. While on the phone with the 911 operator, he had requested emergency medical assistance, and never limited or conditioned that request. True, he was never told that the bullet would be given to law enforcement investigators, but neither did he ever claim an ownership or privacy interest in the bullet.
. . .
The parties have vastly different views on the proper legal framework of this case. Mr. Gaye equates the bullet—taken from his body—with sensitive, personal information, or bodily material, such as urine or blood, which is private and not disclosable to law enforcement in the medical context. See Ferguson v. City of Charleston, 532 U.S. 67, 78, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001) (a “typical patient undergoing diagnostic tests” enjoys a “reasonable expectation of privacy” in the “results of those tests.”). But the government characterizes the bullet—once removed with consent—as relinquished property in plain view of officials with “probable cause to associate the property with criminal activity.” Soldal, 506 U.S. at 69.
The government’s view is more convincing. To understand why, two concessions are key. First, the government concedes that the staff at the hospital were government actors. Gov. Br. at 30. The district court concluded that the hospital staff were not government officials, but as discussed below, it did so without the benefit of full briefing. The government concedes for this case that the hospital staff acted on behalf of or in coordination with law enforcement when they removed the bullet and bagged it as evidence. Second, Mr. Gaye concedes that he consented to treatment and removal of the bullet. Op. Br. at 59-60. He admits that his 911 call and request for aid was consent to the surgical removal of the bullet.
So the precise dispute is over what rights or interests Mr. Gaye had in the bullet once it was removed from his leg. While on the phone with the 911 operator, he had requested emergency medical assistance, and never limited or conditioned that request. True, he was never told that the bullet would be given to law enforcement investigators, but neither did he ever claim an ownership or privacy interest in the bullet.
Multiple Katz exceptions apply here. Mr. Gaye’s consent to have the bullet removed covers its surgical extraction from his body. He cannot—and does not—object to that intrusion on Fourth Amendment grounds. “A search and seizure, of course, may be made without a warrant or probable cause if the suspect voluntarily consents.” Gay, 774 F.2d at 376. Mr. Gaye attempts to limit his consent only to the bullet’s removal, not its seizure by law enforcement. But seizure occurs “when there is some meaningful interference with an individual’s possessory interests in that property.” Soldal, 506 U.S. at 61. In other words, the bullet must have been seized the moment that hospital staff (stipulated public officials) took the bullet from Mr. Gaye’s leg. That seizure cannot be disaggregated from the transfer to police. See Ferguson, 532 U.S. at 76 n.9 (collecting cases). Because he had consented to the bullet’s seizure by government officials, Mr. Gaye had no continuing interest to prevent their transferring custody of the bullet to law enforcement.
Mr. Gaye also abandoned any privacy interest in the bullet after its removal by reporting that he had been shot. See Hernandez, 7 F.3d at 947. As far as anyone at the hospital knew, the bullet was evidence of a shooting, and Mr. Gaye had no claim to it. We have repeatedly held that a person who falsely disclaims ownership of a space or item cannot later assert a Fourth Amendment interest to satisfy suppression. See, e.g. id.; United States v. Lowe, 117 F.4th 1253, 1265 n.7 (10th Cir. 2024); United States v. Easley, 911 F.3d 1074, 1083 (10th Cir. 2018); United States v. Ruiz, 664 F.3d 833, 841-42 (10th Cir. 2012); United States v. Hansen, 652 F.2d 1374, 1384 n.8 (10th Cir. 1981) (all denying suppression where defendant disclaimed ownership or interest to officials). Mr. Gaye’s story to first responders that a masked intruder fired the bullet abandoned his own interest in the bullet, dooming his argument that a warrant was necessary to seize the bullet once it was removed. “A warrantless search and seizure of abandoned property is not unreasonable under the Fourth Amendment.” Hernandez, 7 F.3d at 947.
Update: Colorado Politics: 10th Circuit rules Denver police acted constitutionally by taking bullet removed from man by Michael Kartik (“The court cautioned it was not authorizing law enforcement to obtain evidence without a warrant from medical staff anytime someone calls 911 needing aid”)
