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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.

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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.

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Chen Guangcheng, activist

John Yoo gets immunity under Ashcroft v. al-Kidd for the “Torture Memo.” Padilla v. Yoo, 2012 U.S. App. LEXIS 8934 (9th Cir. May 2, 2012):

After the September 11, 2011 attacks on the United States, the government detained Jose Padilla, an American citizen, as an enemy combatant. Padilla alleges that he was held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions of confinement, all in violation of his constitutional and statutory rights. In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice's Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]" the plaintiffs' rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo's tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not "beyond debate" at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla's alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

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