United States v. Ramirez, 2023 WL 3336423 (5th Cir. 2023)
An officer was told to be on the lookout for a truck that was the subject of an “attempt to locate.” The officer knew the truck was registered to Albert Ramirez’s mother and drove by her address several times. Eventually, the officer saw Ramirez in the driver’s seat of the truck at an intersection across from his mother’s house. Ramirez drove past a stop sign before pulling into his mother’s driveway. The officer initiated a stop following the stop sign violation.
As the officer began the traffic stop, Ramirez was already exiting the vehicle, now parked in front of his mother’s house. A female passenger also exited the vehicle. The officer saw Ramirez walk toward the gate and toss his jacket over the fence into his mother’s yard, onto a closed trash bin.
When Ramirez walked to the front of the truck, the officer confronted, frisked and handcuffed him, before placing him in the back of the patrol car. The officer also detained the passenger, justifying the detention by explaining Ramirez and the female passenger exited the truck without being instructed to do so. The female passenger also attempted to approach the truck multiple times despite the officer telling her to stay back.
The officer told Ramirez he had been stopped because of the stop sign violation. Ramirez replied, “My bad,” and told the officer he did not have any weapons. He gave consent to search the truck, which revealed no contraband. When a backup officer arrived, the first officer asked him to reach over the fence to retrieve the jacket. The second officer picked up the jacket and found a gun in one of its pockets. Neither officer asked for consent to search the jacket or to reach over the fence and onto the property.
Ramirez was charged with being a felon in possession of a firearm. Ramirez asked the trial court to suppress the gun, claiming he did not abandon his jacket by tossing it over the fence. Therefore, he maintained his expectation of privacy in the jacket. The trial court denied Ramirez’s suppression motion and he appealed.
The court opined he put it there for safekeeping where he knew he could find it again and where he could trust strangers would be unable to get it without unlawfully trespassing.
When an owner voluntarily abandons property, the owner surrenders any privacy expectation. Property may be abandoned in a variety of manners. To determine whether property has been abandoned and may be searched without a warrant, two questions must be answered: First, did the owner (or legitimate possessor) relinquish a legitimate expectation of privacy in the object? Second, was the abandonment voluntary? While the possessor’s subjective intent to abandon the item is an important factor in the expectation of privacy analysis, the expectation of privacy must be objectively reasonable.
The appellate court agreed Ramirez did not abandon his jacket by tossing it over his mother’s fence and onto the garbage can because he did not manifest an intent to discard it. The court opined he put it there for safekeeping where he knew he could find it again and where he could trust strangers would be unable to get it without unlawfully trespassing. Therefore, the appellate court reversed Ramirez’s conviction.
Perhaps the outcome would have been different if Ramirez had tossed the jacket into the trash can. Then, in addition to the question of abandonment, the court would need to consider whether the officer breached the curtilage to reach the trash can and dig into it. Trash cans left at the curb for collection are not generally subject to a legitimate expectation of privacy. Trash at the curb is generally accepted as abandoned (California v. Greenwood, 486 U.S. 35 (1988)). Even when trash is left within the curtilage, but in a location from which the trash collector retrieves it, there is no expectation of privacy (United States v. Thompson, 881 F.3d 629 (8th Cir. 2018)). In Thompson, the court stated, “The proper focus is whether the garbage was readily accessible to the public so as to render any expectation of privacy objectively unreasonable.” Because, in that case, the garbage can “was easily visible from the street, and there were no barriers preventing access to the container or its contents,” there was no expectation of privacy.
