On May 2, 2023, the Tenth Circuit Court of Appeals decided the United States v. Porter[i], which serves as excellent review of the law related abandonment, or denial of ownership of personal property, and its impact on Fourth Amendment protection.  The relevant facts of Porter are as follows:

Mr. Porter was identified as a suspect in a July 22, 2020, shooting and a warrant was issued for his arrest. A wanted bulletin contained a physical description, a short account of his criminal history, and information that he was suspected of membership in the Crips gang. Mr. Porter was wanted for attempted murder and believed to be armed and dangerous and in possession of a handgun. Later that day, detective Jay Lopez found Mr. Porter at the warehouse where he worked. From his vehicle, Detective Lopez saw Mr. Porter walk into the building carrying a dark colored backpack.

Detective Lopez then entered the building. Once inside, he confirmed with office manager Scott Williamson that Mr. Porter worked there. Mr. Williamson then called Mr. Porter into his office and Mr. Porter was arrested. Detective Lopez asked Mr. Porter “if there were any personal belongings there at the job site that he wanted to bring with him.” 4 R. 14. Mr. Porter stated that “he didn’t have any personal belongings.” Id. Detective Lopez then “asked him what about the backpack I watched you walk in with, and he responded he didn’t have a backpack.” Id.

Detective Lopez then went back into the warehouse and informed Mr. Williamson that Mr. Porter had entered the building carrying a backpack and asked where Mr. Porter kept his belongings. Mr. Williamson escorted Detective Lopez back to Mr. Porter’s workstation and after briefly searching the area, saw Mr. Porter’s backpack at a nearby workstation about 15 or 20 feet away. Mr. Williamson asked another employee if the backpack belonged to Mr. Porter. Reluctantly, the employee confirmed that it did. After confirming that the bag belonged to no one else, Mr. Williamson urged Detective Lopez to take it with him.

Detective Lopez picked up the backpack and shook it. Although fairly empty, he felt something compact and heavy — it felt like a gun. He then opened it looking for identification which revealed a handgun’s grip. At that point, Detective Lopez zipped up the backpack. Officers then applied for a search warrant and pursuant to that warrant discovered a Smith & Wesson .40 caliber handgun.[ii]

Porter filed a motion to suppress and argued that he did not abandon his backpack.  The district court held that (1) the evidence showed that he did abandon his backpack, which resulted in a loss of his reasonable expectation of privacy, and (2) the gun would have been inevitably discovered during the inventory of the backpack.  Porter entered a guilty plea with the right to appeal the denial of his motion to suppress.  Porter filed a timely appeal with the Tenth Circuit Court of Appeals.

The court of appeals first examined the legal principles related to the appeal and stated

Ordinarily the Fourth Amendment requires officers obtain a warrant before searching or seizing private property. Camara v. Mun. Ct., 387 U.S. 523, 528-29, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). The Fourth Amendment‘s protections do not apply, however, where a defendant has abandoned property prior to a warrantless search. United States v. Hernandez, 7 F.3d 944, 947 (10th Cir. 1993). Whether abandonment has occurred is an objective inquiry based in “words spoken, acts done, and other objective facts.United States v. Jones, 707 F.2d 1169, 1172 (10th Cir. 1983) (quoting United States v. Kendall, 655 F.2d 199, 202 (9th Cir. 1981)). Overall, the court considers whether, in the eyes of a reasonable officer, the defendant manifested an intent to disavow ownership of the property. See Jones, 707 F.2d at 1172-73; United States v. Nowak, 825 F.3d 946, 948-49 (8th Cir. 2016) (per curiam); United States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000).[iii]

The court appeals also noted that they can only overturn the district court’s finding of facts if they are clearly in error.

On appeal, Porter argued that he did not make a “clear, unambiguous, and unequivocal disclaimer of ownership” of the backpack, therefore, he did not abandon it for Fourth Amendment purposes.  Specifically, Porter argued that when the detective asked if he had “any personal belongings on the job site that he wanted to bring with him,” he answered the question with the intent of conveying that he did not want to bring anything with him.  In other words, he argued that he did not deny ownership of his backpack; rather, he simply did not want to bring it with him.  However, the court noted that after Porter’s initial answer, the detective asked him specifically, “what about the backpack,” and Porter answered that he “didn’t have a backpack.”

The court of appeals examined precedent relevant Porter’s argument and noted that in the United States v. Fernandez,[iv] the defendant stated, “he did not have any luggage.”  The court of appeals held that it was reasonable, from that statement, “for the agent to infer that there was no luggage on the bus being claimed by” the defendant.

Similarly, Porter told the detective that he did not have a backpack.  As such, it was reasonable for the detective to believe that Porter abandoned the backpack, thereby abandoning his reasonable expectation of privacy under the Fourth Amendment, and rendering the subsequent warrantless search reasonable.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] No. 22-1134 (10th Cir. Decided May 2, 2023)

[ii] Id. 1-3

[iii] Id. at 4 (emphasis added)

[iv] 24 F.4th 1321 (10th Cir. 2022)

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