On March 26, 2020, the Tenth Circuit Court of Appeals decided the United States v. Jackson[i], which serves as an excellent review of the law related to probable cause during drug investigations and the law related to abandonment. The relevant facts of Jackson, taken directly from the case, are as follows:
Denver police officers arrested Mr. Jackson on March 16, 2018 as part of a larger operation targeting suspected narcotics dealers in downtown Denver. As part of the operation, the officers from the Denver Police Department (DPD) had confidential informants (CIs) purchase narcotics from suspected drug dealers using previously recorded money.
On this occasion, DPD Detective Timothy Goss was circling the 2200 block of Lawrence, a high-crime area, when he noticed Mr. Jackson. Mr. Jackson stood out among various transients in the area because he was cleanly dressed, appeared “healthy,” and had on bright, white sneakers. Detective Goss eventually stationed himself at a nearby observation point.
The CI approached the area and began talking with a man in a Carhartt-like brown jacket who was later identified as Kevin Tindall. After a few moments, Mr. Tindall and the CI approached Mr. Jackson and the three of them huddled together. The CI then left Mr. Tindall and Mr. Jackson. Detective Goss observed Mr. Tindall and Mr. Jackson exchange something hand-to-hand.
Detective Goss, who had been communicating his observations to other officers via radio, received confirmation from another officer that the CI had successfully purchased what appeared to be crack cocaine from Mr. Tindall. Detective Goss then described Mr. Jackson and Mr. Tindall over the radio and arrest teams were ordered to move in on the two men and make contact.
An officer approached Mr. Jackson, grabbed his arm, and told him he was “not going anywhere.” Moments thereafter, Mr. Jackson fled on foot. The officer chased him and took him to the ground, at which point the officer heard a metallic sound. Someone yelled “gun,” and Mr. Jackson stood up and continued his flight. Another officer, who also heard “a kind of clunk sound,” saw Mr. Jackson run off. Officers at the scene recovered a firearm that a separate officer confirmed she had not seen in the street prior to the scuffle with Mr. Jackson.
Mr. Jackson was located, arrested, and searched. On his person, officers recovered crack cocaine, cocaine base, methamphetamine and $521, which included two of the pre-recorded bills the CI had used to pay for narcotics earlier.
Mr. Jackson later moved the district court to suppress the physical evidence. He claimed the officers did not have probable cause to seize or search him and that all evidence recovered, including the drugs and the firearm, was thus fruit of the poisonous tree. The district court denied the motion after a hearing, finding that the officers had probable cause to arrest Mr. Jackson, the search of his person was a valid search incident to arrest, and he had abandoned the gun.[ii]
Jackson was ultimately charged with federal drug and gun charges. He filed a motion to suppress the evidence and argued the officers did not have probable cause to arrest and search him and he did not abandon the gun. The district court denied the motion, and Jackson pleaded guilty with the right to appeal the denial of the motion to suppress. He then filed a timely appeal with the Tenth Circuit Court of Appeals.
On appeal, the court examined two issues. First, they examined whether the officers had probable cause to arrest and search Jackson, and second, they examined whether Jackson abandoned his firearm such that he no longer had Fourth Amendment protection regarding the gun.
Issue One: Did the officers have probable cause to arrest and search Jackson?
Regarding this issue, the court first stated that
A warrantless arrest is reasonable under the Fourth Amendment where the officer “[has] probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). An officer must have reasonable grounds to believe a person is involved in criminal activity and probable cause is based on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371 (2003). Probable cause must be based on more than mere suspicion. Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality opinion).[iii]
Jackson argued that there were insufficient facts to support the district court’s ruling that probable cause was present. Specifically, he argued that the only fact the officer observed was that he was in area where a drug transaction had just occurred.
However, the court of appeals noted that the district court listed seven facts that, in the totality of the circumstances, did amount to probable cause to believe that Jackson had just been involved in drug transaction. Those facts are as follows:
(1) Illegal drug transactions, especially involving crack cocaine, were known to occur in the area near the Denver Rescue Mission;
(2) Drug dealers often employed a homeless or transient person to act as a middleman during a drug transaction;
(3) A CI had been engaged and sent into the area with the intention to purchase drugs;
(4) The CI had made contact with Mr. Tindall;
(5) The CI and Mr. Tindall broke off from the group of people amongst whom they previously had been standing and interacted with Mr. Jackson more privately;
(6) After the CI left the area, Mr. Jackson and Mr. Tindall came back together and appeared to make an exchange; and
(7) After this interaction, the CI left the scene and gave a signal that he had just successfully purchased drugs.[iv]
The court of appeals then held that the above facts provided the officers probable cause to believe that Jackson had just participated in a drug sale to the confidential informant, using Mr. Tindall as a “middle-man.” Further, the court of appeals stated that since Jackson’s arrest was supported by probable cause, the search of his person was valid under the Fourth Amendment as a “search incident to arrest.” Specifically, the court stated
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” United States v. Robinson, 414 U.S. 218, 235 (1973). Here, the search of Mr. Jackson’s person was justified by probable cause. Thus, the recovery of crack cocaine, cocaine base, methamphetamine, and two of the previously recorded bills are not “fruit of the poisonous tree,” as Mr. Jackson argues, and the district court properly denied his motion to suppress.[v]
Therefore, the court of appeals affirmed the decision of the district court on this issue.
Issue Two: Did Jackson abandon his firearm such that he no longer had a Fourth Amendment reasonable expectation of privacy in the weapon?
The court first noted what constitutes “abandonment” for the purposes of the Fourth Amendment. Specifically, the court stated
Abandonment occurs if either (1) the owner subjectively intended to relinquish ownership of the property or (2) the owner lacks an objectively reasonable expectation of privacy in the property.[vi]
Here, as officers were chasing Jackson, one officer heard a metallic sound, another officer yelled, “gun,” and a third officer testified she did not see a gun in road prior to that interaction with Jackson. At the time the firearm was in the road, it was in plain view. Further, after the metallic sound and the officer yelling, “gun,” Jackson still continued to flee, which also demonstrated his intent to abandon the firearm. As such, the court of appeals held the gun was abandoned for the purposes of the Fourth Amendment.
Therefore, the Tenth Circuit affirmed the denial of the motion to suppress.
[i] No. 19-1191 (10th Cir. Decided March 26, 2020)
[ii] Id. at 2-3
[iii] Id. at 4 (emphasis added)
[iv] Id. at 5
[v] Id. at 5-6 (emphasis added)
[vi] Id. at 6 (emphasis added)