VoteKansas.org

Defendant was stopped based on a search warrant for the apartment of another. In the search, officers found no drugs, but they found keys. It turned out that a key fit the apartment door. At the time of the search of his person, the officers did not have probable cause to detain him because there was no known connection to the keys and the apartment. Defendant was taken from the place of his seizure to the apartment. People v. Hill, 2012 Ill. App. LEXIS 332, 2012 IL App (1st) 102028 (May 4, 2012):

[**P22] We note that the finding of probable cause to support the search warrant does not permit us to assume that there was probable cause or reasonable suspicion to justify the continued detention and transportation of defendant. These are related, but different, inquiries, and "[e]ach requires a showing of probabilities as to somewhat different facts and circumstances." 2 Wayne R. LaFave, Search and Seizure § 3.1(b), at 8-9 (4th ed. 2004). "In the case of arrest, the conclusion concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with crime and to their present location." Id. at 10. The same holds true for the State's Terry argument: the search warrant does not, by its mere existence, give rise to reasonable suspicion that justifies the continued detention and transportation of defendant. While this information supporting the search warrant is now part of the record, the State has never argued—in the motion to supplement the record, in its brief, or at oral argument—that the specific facts in the complaint for the search warrant support an independent finding of probable cause or reasonable suspicion that would justify the seizure. Instead, the State simply argues that because police had a reason to believe there were drugs in the Flournoy apartment (i.e., they had probable cause for the search warrant), they also had probable cause, or at least reasonable suspicion, that allowed for defendant's continued detention and transportation. Where the search of defendant revealed no narcotics and police had not yet found any narcotics or contraband at the apartment, the mere expectation that police would find drugs in the apartment, without more, cannot justify defendant's continued detention and transportation to the apartment.

Volokh Conspiracy: The Fourth Amendment and Video Recording in Bathrooms, in Civil Commitment Units for Sex Offenders by Eugene Volokh:

Arnzen v. Palmer (N.D. Iowa Apr. 12, 2012) deals with an interesting and unusual questions: To what extent, if any, does the Fourth Amendment restrict searches in civil commitment units for sex offenders?

Defendant Airman first consented to a UA but withdrew his consent before the testing was done. This was potentially binding under M.R.E. 314(e)(3), which had to be considered. Also, his UA could not be considered an abandonment. United States v. Dease, 2012 CAAF LEXIS 536 (C.A. A.F. May 1, 2012):

For the reasons set forth below, we hold that the military judge did not abuse his discretion in ruling that Appellant had a privacy interest in his urine sample and could withdraw consent prior to the search. Further, the military judge did not abuse his discretion in concluding that the urinalysis evidence and evidence derived from that urinalysis would not have been subject to inevitable discovery. Seizure and search are not necessarily coterminous, particularly in the context of a urinalysis case. M.R.E. 314(e)(3) states that "[c]onsent may be limited in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time." (Emphasis added.) Therefore, the lower court erred in determining that Appellant's privacy interest in his urinalysis sample was extinguished by his voluntary surrender of his urine to the Government, without addressing M.R.E. 314(e)(3).

Defendant’s challenge to his 1992 search was originally on scope of search rather than the validity of third party consent. Reviewing for plain error, counsel was not ineffective for not challenging the consent on that ground rather than voluntariness. “Strickland grants no license to question counsel's strategic decisions.” United States v. Balogun, 2012 U.S. App. LEXIS 9127 (2d Cir. May 4, 2012).*

Defendant passed out in his car going the wrong way through a McDonald’s drive-in was reasonable suspicion. State v. Ownby, 2012 Tenn. Crim. App. LEXIS 274 (May 3, 2012).*

Baltimore Sun editorial: DNA testing: Why not just trash the Fourth Amendment?

I found Dan Rodricks' commentary regarding DNA testing and the recent Maryland Court of Appeals ruling ("DNA: Why wait for an arrest?" May 3) to be quite interesting. He states at the end that he can't think of a good argument against his position that we should all give DNA samples to the authorities whether we have been accused of a crime or not. Well, Dan, I've also thought about how useful having a large repository of DNA can be. Unsolved crime and a city mayor on your back? No problem! We'll just take some DNA from our bank, plant it at the scene, and say that it was left there.

DNA evidence would surely trump any factual alibi, so no problem, case closed, someone (whether guilty or not) now behind bars, and the mayor's happy. Don't believe it could happen? Think again. Planting "evidence" is not unheard of.

. . .

Of course, we could simply scrap the whole Fourth Amendment and allow the government to enter our homes and search them whenever they felt like it, all in the name of proving our innocence. If we have nothing to hide, why should we not give them free reign and not require things like probable cause and warrants?

Officer following a DUI suspect home watched defendant pull into his garage. As the garage door was closing, she stuck her foot in to stop the door from closing. This was an unreasonable entry of the home without a warrant or exigent circumstances. The police had probable cause, but all the state's claimed exigent circumstances were considered and rejected. State v. Dugan, 2012 Kan. App. LEXIS 49 (May 4, 2012):

he United States Constitution draws a line at the threshold of a person's home over which law enforcement officers may not step without a warrant from a judge or exigent circumstances so compelling as to override that fundamental right. The Fourth Amendment's prohibition against unreasonable searches of dwellings or seizures of their occupants reflects a tenet the founders considered essential to the ordered liberty they fought a war to achieve and then cherished as this nation matured. That prohibition is no less significant nearly two and a half centuries into this country's maturation. The comparatively mundane facts of this case belie the magnitude of the constitutional right and the significance of the constitutional issue—when government agents may claim exigency to override Fourth Amendment protections of citizens in their own homes.

I. Factual and Procedural History

The Douglas County District Court denied a motion to suppress evidence a Lawrence police officer obtained after she stuck her foot in a garage door to keep it from closing and then entered a private home to search and seize Defendant Troy E. Dugan based on a reported misdemeanor traffic offense. The district court found the officer's actions did not offend the Fourth Amendment to the United States Constitution. Although the question might be closer than some, we do not share the district court's tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted.

. . .

The courts have generally recognized four types of exigent circumstances that may obviate the warrant requirement: (1) preventing harm to law enforcement officers or others by capturing a dangerous suspect, see Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); (2) securing evidence in the face of its imminent loss, see King, 131 S. Ct. at 1853-54; (3) hot pursuit of a fleeing suspect, see United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976) ; and (4) thwarting escape of a suspect, see Welsh, 466 U.S. at 754. Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (noting those exigent circumstances); United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010) (cataloging exigent circumstances). Those categories of exigency are not exclusive, and the facts of a given case might support some different imperative rendering a search or seizure constitutionally reasonable under the Fourth Amendment without a warrant. Struckman, 603 F.3d 743 ("no immutable list of exigent circumstances"); United States v. Plavcak, 411 F.3d 655, 663 (6th Cir. 2005). Likewise, the factual scenario in a given case might implicate multiple exigencies, suggesting a greater likelihood of reasonableness. See Santana, 427 U.S. at 43 (While hot pursuit "was sufficient to justify the warrantless entry into Santana's house," the narcotics officers also had "a realistic expectation" that Santana would try to dispose of illegal drugs on the premises.).

The courts have recognized an allied exception when a warrantless entry reasonably appears necessary to assist persons who are seriously injured or face imminent injury. Brigham City, 547 U.S. at 403 (recognizing emergency assistance doctrine as warrant exception); State v. Geraghty, 38 Kan. App. 2d 114, 123-24, 163 P.3d 350 (2007). The emergency assistance exception to the warrant requirement stands on a somewhat different legal footing than the "exigent circumstances." The exigent circumstances all entail conventional law enforcement functions related to taking individuals into custody or securing evidence. As stated, they require the officers have probable cause. The emergency assistance exception neither implicates that kind of law enforcement action nor requires probable cause. Brigham City, 547 U.S. at 403; Geraghty, 38 Kan. App. 2d at 122. The emergency assistance exception applies when a government agent enters a dwelling or other private place for the purpose of rendering emergency aid to a person in serious peril. The agent must have a reasonable factual basis to believe an emergency threatening life or property is imminent or ongoing and to believe the place entered is associated with that threat. The agent may not use the emergency as a subterfuge to effect a search for evidence or a seizure of a criminal suspect. 38 Kan. App. 2d at 123-24. This case does not implicate the emergency assistance doctrine.

III. State's Claimed Exigencies Insufficient

In this case, the State argues hot pursuit and preservation of evidence justified entering Dugan's home without first getting a warrant. We consider each of those bases in turn and find insufficient grounds to support a constitutional entry, a seizure of Dugan, or a search of him or the premises without a warrant. The United States Supreme Court has noted "the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welch, 466 U.S. at 750.

The state did not prove the standardized policy for an inventory, so it fails in this case. The state does not have to rely on a statute, and policy is good enough. Although case law has not indicated the policy needs to be admitted into evidence, others have said that it is relevant. Berry v. State, 2012 Ind. App. LEXIS 216 (May 3, 2012). The court almost, but doesn’t quite, hold that the policy must be admitted. Considering the outcome, that is a logical conclusion:

Despite characterizing Officer Sherrell's testimony as describing the "primary operating procedure prior to towing a vehicle," the record lacks any evidence of Indianapolis Metropolitan Police Department policy on impoundment. (Appellee's Br. p. 4). Thus, we cannot say whether Officer Sherrell's discretion to impound Berry's vehicle was in keeping with such policy. Furthermore, although the State argues that Berry has cited no case law for the proposition that a written law enforcement policy must be introduced into evidence to justify impoundment, we note that other cases have found formal policies relevant in justifying impoundment. See Peete v. State, 678 N.E.2d 415, 420 (Ind. Ct. App. 1997), trans. denied (Indianapolis Police Department policy on impoundment). Consequently, we conclude that the State failed to prove that an exception to the warrant requirement existed at the time of the inventory search of Berry's car.

The smell of raw marijuana coming from defendant’s person, his admission that he smoked earlier, and the small amount in the car not accounting for the smell, a search of the passenger compartment and trunk was justified. State v. Fogel, 2012 Ohio 1960, 2012 Ohio App. LEXIS 1726 (5th Dist. April 19, 2012).*

Defendant was arrested walking out of a building where there was a marijuana grow on the second floor, for which the officers had a search warrant. He lived on the first floor. He said he signed a consent as acquiescence to the officer’s claim of authority. He is entitled to a hearing on the motion because the only document tendered was the criminal complaint generated post-arrest. United States v. Morillo, 2012 U.S. Dist. LEXIS 62590 (S.D. N.Y. May 2, 2012).*

There was probable cause to arrest the defendant for soliciting sex, so the search incident to arrest that produced a syringe was valid. State v. Cavalier, 2012 Ohio 1976, 2012 Ohio App. LEXIS 1738 (2d Dist. May 4, 2012).*

Defendant consented to a search of his computer for evidence of voyeurism. His cell phone was discovered to be an instrumentality of the crime for some of the photographs, so it was properly seized. State v. Dennison, 2012 Ohio 1988, 2012 Ohio App. LEXIS 1744 (6th Dist. May 4, 2012).*

In a search warrant for drugs and “any and all other items related to the purchase, manufacture or sale of illegal drugs,” the police were permitted to seize, in addition to drugs: “(1) 2 flat screen TVs, (2) a camera, (3) a snow blower, (4) a stereo, (5) a dvd player, (6) a refrigerator, (7) an electric range, (8) a washer and dryer, (9) a receiver, (10) a stun gun, and (11) a bicycle.” Considering defendant’s comparatively lavish lifestyle while on unemployment and the seizure of $42,000 in cash from his house, there was justification for the seizure based on the officer’s reasonable belief it was all bought with drug proceeds. State v. Kreuz, 2012 Ohio 1990, 2012 Ohio App. LEXIS 1747 (6th Dist. May 4, 2012):

Detective Jones acknowledged that none of the above items were listed in the search warrant. He testified, however, that based on what he knew of appellant's financial situation, the above high end items could only have been purchased from proceeds appellant received through drug trafficking. Detective Jones cited appellant's properly subpoenaed bank and tax records which showed that appellant was unemployed and receiving weekly unemployment benefits in the approximate amount of $250 a week. This appeared to be appellant's only income. However, a large amount of cash, $42,799, was found in the home. Appellant was also making a mortgage payment of approximately $1,000 a month. Receipts found for some of the items listed above showed that appellant paid for those items with either cash or gift cards. After relaying his impressions to the Wood County prosecutor, he was advised to seize the above listed items.

Defendant can’t relitigate his motion to suppress in a 2255 which was decided on the merits on appeal without an IAC claim. United States v. Reed, 2012 U.S. Dist. LEXIS 61806 (N.D. Fla. March 8, 2012).*

The intrusion by detention was minimal here and led to consent, and defense counsel was not ineffective for not pursuing that ground because it would lose on the merits. Woodson v. State, 2012 Ind. App. LEXIS 214 (May 2, 2012).*

Officers who entered after no answer to knocking at a door of the location of a disturbance call were entitled to qualified immunity. This was a reasonable response to a perceived need. They were inside two minutes. Burke v. Sullivan, 2012 U.S. App. LEXIS 9042 (8th Cir. May 3, 2012).*

It isn’t required that the affiant actually viewed child pornography to get a search warrant, at least as long as somebody did and reported it to the affiant. It is not required to attach the photographs to the search warrant application. Even if some were computer generated images, there was still probable cause. United States v. Ranke, 2012 U.S. App. LEXIS 9118, 2012 FED App. 0471N (6th Cir. May 3, 2012)*:

Next, Defendant argues that the affidavit was insufficiently detailed. He points out that the affidavit does not indicate how Detective Pitts determined that the images were of a minor and that Detective Pitts' description of a boy "apparently masturbating" suggests that he never actually viewed the images personally. Defendant claims these deficiencies were compounded when Detective Pitts failed to attach the images to the affidavit for the state court judge's independent review.

The implication, to the extent one exists, that Detective Pitts never viewed the images personally, as well as his failure to attach the photographs to the search warrant affidavit, are both factors that should have played into the state court judge's probable cause analysis. However, neither precluded the judge from issuing the search warrant. First, an officer is entitled to rely on information supplied by other officers or agencies for the purposes of a search warrant affidavit, provided that the information and its sources are accurately described for the reviewing judge's independent evaluation. See United States v. Yusuf, 461 F.3d 374, 385, 48 V.I. 980 (3d Cir. 2006); United States v. Jenkins, 525 F.2d 819, 823 (6th Cir. 1975) (per curiam). Detective Pitts fulfilled that requirement when he provided an accurate description of the circumstances under which he "received information from federal authorities" regarding the greeting card, the accompanying photographs, and the incriminating evidence discovered in Brown's cell. Likewise, Detective Pitts' failure to attach the photographs themselves did not prevent the search warrant from being issued. A magistrate judge need not view all the evidence personally to make its decision, and the probable cause stage only requires an affidavit to show the "'probability or substantial chance of' possession of images of actual children; 'an actual showing' that the images depicted real children" is not required. Lapsins, 570 F.3d at 765 (citing Gates, 462 U.S. at 243 n.13).

Officers entered onto the curtilage of defendant’s property before they could smell a grow operation and hear the equipment. That was a Fourth Amendment violation, and it vitiated alleged consent and the good faith exception to a later warrant. United States v. Lopez, 2012 U.S. Dist. LEXIS 61707 (S.D. Fla. May 2, 2012):

Here the Court finds that the area within the Target Residence's metal fence and gates—and specifically the areas occupied by Officers Bartra, Rios, and Benavides at the time they smelled marijuana and heard the sounds of marijuana-grow-house equipment— constituted curtilage subject to fundamental Fourth Amendment protections. The area was close in proximity to the residence, was enclosed within the metal fence and contiguous gates, and was shielded by the fence's white paneling to block observation from outside. Although the driveway may have been used for ingress to and egress from the property, and although the driveway gate did not contain obstructive paneling, the closed, locked mechanical gate clearly delineated the driveway as a private area which visitors—and thus the investigating officers—were not expected to encroach. See, e.g., Edens v. Kennedy, 112 F. App'x 870, 875 (4th Cir. 2004); United States v. Hambelton, No. 1:08cr26-SPM, 2009 U.S. Dist. LEXIS 25139, 2009 WL 722284, at *4 (N.D. Fla. 2009). Moreover, although at one point Perez opened the gate so that he and Ricano could exit, one cannot say that this brief opening of the gate converted the driveway into only a semi-private area through which visitors were free to travel. See Fernandez v. State, 63 So. 3d 881, 884 (Fla. Dist. Ct. App. 2011) ("[T]he momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. ... No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors.") The Court thus finds that the area from which officers first smelled marijuana constituted "curtilage" and that the officers' physical entry into that area implicated Defendants' Fourth Amendment protections.

NYTimes.com: Wireless Carriers Who Aid Police Are Asked for Data by Eric Lichtblau:

WASHINGTON — A leading House Democrat is demanding information from the country’s biggest cellphone companies about their role in helping local police departments conduct surveillance and tracking of suspects and others in criminal investigations.

The district court erred in granting the motion to suppress a protective sweep. When officers arrived at a disturbance call, they heard defendant threaten a woman, and the gun he allegedly had was unaccounted for with another person inside. United States v. Laudermilt, 2012 U.S. App. LEXIS 9072 (4th Cir. May 3, 2012)*:

Applying this framework, we believe the district court erred in granting the suppression motion. We begin by noting our agreement with the district court that the protective sweep was justified by Buie. The officers were responding to a potentially volatile situation involving a firearm and a domestic dispute, and they personally witnessed Laudermilt threatening Kuri and her family. When the officers arrested Laudermilt, the firearm was unaccounted for and—even by Laudermilt's own admission—at least one other person was in the home. In addition, as the officers were arriving on the scene, two individuals were leaving in a vehicle, one of whom was "slouched" over in his seat. Clearly, these articulable facts would have led a reasonably prudent officer to believe a protective sweep was warranted.

Nexus to this apartment was shown by defendant’s mail being received there and his admitting that his immigration documents were there. When defendant was confronted with a piece of mail, his demeanor changed and he refused to cooperate about going to apartment to get his immigration documents. A search warrant was obtained for the apartment. United States v. Abdul-Ganiu, 2012 U.S. App. LEXIS 9085 (3d Cir. May 3, 2012).*

Law.com: The Court and the Fourth Amendment; The Justices tend to find a violation if they can imagine the search applying to them personally by Erwin Chemerinsky:

I long have believed that the best predictor of whether the U.S. Supreme Court finds a violation of the Fourth Amendment is whether the justices could imagine it happening to them. For example, the Supreme Court upheld drug-testing requirements in every case until it considered a Georgia law that required that high-level government officials be subjected to it. The two Fourth Amendment decisions this term, U.S. v. Jones and Florence v. Board of Chosen Freeholders of Burlington County, powerfully illustrate that the justices only seem to care if it could happen to them.

The government got a search warrant with information from a CI in a white collar case. Instead of executing the warrant, the government gathered some more information, resubmitted the information and obtained a second search warrant which was executed. The alleged Franks violation was not material to the second search warrant’s issuance, and there was plenty of probable cause in the first application. United States v. Mandell, 2012 U.S. Dist. LEXIS 60925 (S.D. N.Y. May 1, 2012)* [Note: Any problems with the second warrant likely weren't sufficient to suppress, but this was an easier resolution of the case.]

Defendant was suspected of possession of drugs, but his driving justified a reasonable suspicion stop for likely possession of drugs. The stop was valid, and there was actually probable cause for the search of the car and search incident for drugs. State v. Watkins, 2012 N.C. App. LEXIS 588 (May 1, 2012).*

The defendants were suspected of possession of stolen property moving in interstate commerce. The government did a fly over and spotted a mini excavator nearby which was never established to be on their property. Officers driving by noticed four trailers and they were suspected of having stolen trailers. Officers got a search warrant to enter the property, and it was valid and with probable cause. In any event, the excavator was on open fields 500' from their house. United States v. Young, 2012 U.S. App. LEXIS 8958 (4th Cir. April 30, 2012).*

Officers responding to a noise complaint at a loud party and seemingly invited in to the living room by an unknown guest were not entitled to go to the bedrooms and open doors under the community caretaking function. State v. Kaltner, 2012 N.J. LEXIS 502 (May 1, 2012), aff’g per curiam 420 N.J. Super. 524, 22 A.3d 77 (2011):

The panel explained that the community caretaking exception to the warrant requirement requires a case-by-case, fact-sensitive analysis. The relevant question focuses on the objective reasonableness of the police action under the circumstances, and requires that the court balance the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern. The panel concluded that the police action in this case was not constitutionally permitted. Although the officers' entry into the dwelling was initially justified, their subsequent action in fanning out and conducting, in essence, a full-blown search of the home was not reasonably related in scope to the circumstances that justified the entry in the first place, nor was it carried out in a manner consistent with the factors supporting the entry's initial legitimacy. As explained by the motion judge, the objective of noise abatement could have been achieved well short of the officers' full-scale search. For example, given the number of officers present and the fact that the offending noise emanated from the crowd itself, the officers could easily have dispersed the partiers.

After balancing the competing interests, including the important privacy interest in one's home, the breadth and extent of the invasion of the entire premises, the limited nature of the community caretaking concern, and the relatively low threat posed in light of the available less-drastic options, the panel concluded that Officer Camacho was not lawfully in the hallway outside Kaltner's bedroom when he viewed the evidence, and the plain-view doctrine did not excuse his entry into the bedroom and seizure of the drugs.

FoxNews.com: Taking Liberties: Cab driver isn't paranoid, the government IS watching him by Douglas Kennedy:

Just because taxi driver Andre Olczak believes he’s being watched, doesn’t mean he’s paranoid

In fact, he’s not only being watched, he’s being monitored every second while he’s at work.

“It’s terrible,” he says as he drives his yellow cab on W. 48th St. in midtown Manhattan.

“They are constantly watching me.”

“They” are the TLC, or Taxi and Limousine Commission, the government body that licenses taxi drivers in New York City. In 2007, the TLC required all cabbies to install GPS or Global Positioning System devices to monitor their locations, speed and meters while they’re driving.

My last post about TLC's GPS monitoring was back in September 2010. Are taxicabs “highly regulated” for fare ripoffs? FoxNews being FoxNews, it probably does not have a sense of history on this.

Defendant’s consent to a computer search for child pornography was voluntary. He was seemingly gregarious when talking with the officers explaining his obtaining child pornography. [For staleness cases, note that defendant admitted eight years worth of stuff.] United States v. Schaefer, 2012 U.S. Dist. LEXIS 60977 (E.D. N.Y. May 1, 2012):

First, the circumstances surrounding the consent to search were non-coercive. In particular, the Court finds that (1) the defendant was approached at his own residence during the early evening; (2) the two agents and detective who came to his home to speak with him were in plain clothes, and their weapons were not drawn; (3) the agents asked the defendant for permission to enter his home, which he granted; (4) the agents introduced themselves and stated that the reason for the visit related to child pornography; (5) the defendant was never handcuffed or placed in custody by the agents; (6) the entire interview and search took one-half hour; and (7) no threats or promises were made to the defendant during the interview or search.

Second, the defendant orally consented to the search and also signed a written consent form which (1) specifically advised him of his right to refuse consent, (2) stated that he understood that information obtained by the search could be used against him, and (3) stated that no threats or promises had been made in exchange for consent.

Third, with respect to the characteristics of the defendant, the Court notes that the defendant is a 53-year old who graduated high school, reads English, manages a deli department, and is familiar with computers. Thus, his personal characteristics also favor a finding that he voluntarily consented to the search.

Massachusetts engages in a sensitive analysis of abandonment and subjective reasonable expectation of privacy and concludes that a fleeing suspect who stashes a backpack under a bush in a neighbor’s yard really didn’t have one. (Alternatively, there were exigent circumstances.) Commonwealth v. Carnes, 2012 Mass. App. LEXIS 182 (May 2, 2012):

A search in the constitutional sense requires that the defendant must have had a subjective expectation of privacy in the item or place searched, and that such expectation must have been one that society recognizes as reasonable. See, e.g., Commonwealth v. Pina, 406 Mass. 540, 544, cert. denied, 498 U.S. 832 (1990); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). "The defendant bears the burden of establishing both elements." Commonwealth v. Montanez, 410 Mass. at 301. Here, the judge's conclusion of abandonment requires us to consider whether the defendant manifested a subjective expectation of privacy in the place searched, and in the contents of his backpack, which "could be considered objectively reasonable or legitimate." Commonwealth v. Straw, 422 Mass. 756, 759 (1996). More particularly, abandonment is a question of intent, which may be inferred from words, behavior, and other objective facts. See generally Commonwealth v. Paszko, 391 Mass. 164, 184 (1984).

Because we conclude that the defendant's actions in discarding the backpack in the back yard of his best friend suggest a subjective expectation of privacy, we focus on whether the defendant's subjective expectation of privacy "could be considered objectively reasonable or legitimate." Commonwealth v. Straw, 422 Mass. at 759. First, we consider that the defendant concealed his backpack outside, in a back yard in which "by law, he ... had no reasonable expectation of privacy." Id. at 761. He was neither the owner nor did he establish any right of control over the property. See Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (defendant put drugs in friend's purse over which he had no control or right to exclude others); United States v. Hershenow, 680 F.2d 847, 855-856 (lst Cir. 1982) (defendant had "no legal interest or even access rights" to the storage barn where he directed another to hide a box of incriminating evidence). See also Commonwealth v. Williams, 453 Mass. at 207-209 ("defendant lacked a reasonable expectation of privacy in the basement area [of her mother's apartment building] in which she had deposited some possessions"); United States v. Soto, 779 F. Supp. 2d 208, 219 (D. Mass. 2011) (defendant had no legitimate expectation of privacy in computer's hard drive left in vehicle defendant obtained by fraud and turned over to third party; hard drive deemed abandoned). Contrast Commonwealth v. Mubdi, 456 Mass. 385, 391-394 (2010), citing with approval Commonwealth v. Williams, supra.

. . .

In sum, the defendant's act of hiding his backpack in the bushes in his best friend's yard without establishing that he placed the backpack in someone else's control, while he was trying to avoid apprehension, and in particular, while he was in possession of a handgun, fails to evoke an expectation of privacy that society is willing to recognize as reasonable. See Commonwealth v. Carter, 424 Mass. 409, 412 (1997) (art. 14 "does not relieve a defendant who unlawfully intruded on someone else's reasonable expectation of privacy from establishing that he had a reasonable expectation of privacy himself"). The motion judge properly concluded that the backpack had been abandoned. See generally United States v. Morgan, 936 F.2d at 1570-1571, cited with approval in Commonwealth v. Straw, 422 Mass. at 760-761; United States v. Soto, 779 F. Supp. 2d at 219.

One could wish that all courts would do this analysis. Few would. Still, the defendant loses, but he can't complain he wasn't adequately heard.