For the past 56 years, federal courts have recognized, in the wake of U.S. Supreme Court precedent, that the Fourth Amendment’s prohibition against illegal searches and seizures extends to individuals a “reasonable expectation of privacy” that cannot be transgressed without a warrant or reasonable suspicion to conduct a warrantless search.
Like many constitutional rules recognized by the Supreme Court, the lower federal courts, with the specific or acquiesced blessing of the high court, have carved out exceptions to the “reasonable expectation of privacy” rule. One of those rules is known as “abandonment.”
A classic example of abandonment is when a suspect is the subject of a law enforcement stop and attempts to discard incriminating evidence by throwing it away on the ground or out a car window.
But even the abandonment exception has its exceptions.
This exception was evidenced by a May 10, 2023 decision, United States v. Ramirez, issued by the Fifth Circuit Court of Appeals.
In that case, Albert Ramirez had become a subject of interest for unspecified reasons by the San Antonio Police Department. Officers were alerted to be on the lookout for a truck registered to Ramirez’s mother that her son was reportedly driving.
One officer paid close attention to the mother’s residence, where Ramirez frequently visited and often resided. The officer located the truck as it was pulling into the driveway of the mother’s home. He initiated a traffic stop just as Ramirez exited the vehicle parked in front of a chain link fence surrounding the residence. He then observed Ramirez walk to the gate and toss a jacket over the fence, which landed on the back side of a trash bin.
The officer thereafter patted Ramirez down, handcuffed him, and placed him in the back of a patrol car. The officer then informed Ramirez that he had stopped him because the officer had observed Ramirez run through a stop sign. Upon securing Ramirez’s permission, the officer searched the pickup truck, finding no contraband.
Another officer arrived on the scene. Per the first officer’s instruction, the second officer reached over the fence and retrieved the jacket from behind the trash can. Neither officer asked for consent to search the jacket or to enter the mother’s property.
The search of the tossed jacket revealed a firearm.
Being a convicted felon, Ramirez was charged with being a felon in possession of a firearm. Ramirez’s attorney filed a motion to suppress the firearm. Counsel at the suppression hearing introduced testimony that Ramirez had lived at the residence most of his life, including adulthood, and that he went daily to check on his mother and have his meals.
That evidence clearly established that Ramirez had a “reasonable expectation of privacy” in the property. The trial court denied the motion, finding that Ramirez abandoned that expectation when he tossed the jacket with the firearm in its pocket.
Ramirez ultimately pled guilty to the charge and was given a 46-month sentence. Counsel preserved his right to appeal the illegal search issue.
With none of the facts in dispute, the sole issue before the Fifth Circuit was whether Ramirez had abandoned his reasonable expectation of privacy by tossing his jacket over the fence of the residence in which he resided.
The preliminary point the appeals court made was that, contrary to the trial court’s finding, Ramirez did not manifest “an intent to disclaim ownership in his jacket simply by placing it on the private side of his mother’s fenced-in property line.”
The appeals court underscored this conclusion:
“This would be a different case if Ramirez had dropped his jacket on the public sidewalk and ran away or if he had insisted before the search that the jacket did not belong to him. It would also be a different case if the evidence demonstrated that Ramirez was not permitted to leave his possessions on his mother’s property. But the Government has not offered any evidence to that effect. To the contrary, the evidence offered at the suppression hearing overwhelmingly showed that Ramirez was welcome on the property.”
Citing decisions by the two other circuits that reached the same conclusions in similar fact circumstances, the Fifth Circuit panel stated its conclusion:
“Like the placement of a satchel on a windowsill (Seventh Circuit), or of baggage with airport personnel (Sixth Circuit), Ramirez’s placement of his jacket on his mother’s property does not support an inference of abandonment. To the contrary, Ramirez’s conduct indicates a continued interest in keeping the contents of the jacket private. He placed it where he could expect it would be safe, and where he could return to it later
“While Ramirez’s actions might support the inference that Ramirez intended to conceal his jacket and its contents from Officer Copeland, they do not evince an intent to discard, leave behind, or otherwise disavow an ownership or privacy interest in the jacket. In the absence of alternative arguments from the Government, we hold that Ramirez did not lose his reasonable expectation of privacy in the jacket or its contents, and that Officer Copeland’s search was subject to Fourth Amendment constraints.”
In summing up its conclusion, the Fifth Circuit essentially found that there was a constitutional presumption that Ramirez tossed his jacket over his mother’s fence “for safekeeping where he knew he could find it again, and where he could trust that strangers—if acting lawfully—would be unable to get at it.”
People in the United States are entitled to the protections guaranteed by the Constitution. Law enforcement cannot ignore those protections to expand their police powers. That constitutional presumption must remain sacrosanct, less the Fourth Amendment loses all its viability.
The appeals court reversed Ramirez’s conviction and sentence.