Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

United States v. Porter.

No. 22-1134. 5/2/2023. D.Colo. Judge Kelly. Warrantless Search—Abandonment of Property—Motion to Suppress—Fourth Amendment Privacy Expectation.

May 2, 2023

Porter was identified as a suspect in a shooting, and a warrant was issued for his arrest. Porter was believed to be armed and dangerous and in possession of a handgun. Detective Lopez found Porter at the warehouse where he worked and observed Porter walking into the building carrying a dark-colored backpack. Detective Lopez arrested Porter at the warehouse and asked him if he had any personal belongings at the job site that he wanted to bring with him. Porter stated that he didn’t have any personal belongings, and when detective Lopez asked him specifically about the backpack, he responded that he didn’t have a backpack. Detective Lopez later found the backpack within 20 feet of Porter’s workstation, and he confirmed with another employee that the backpack was Porter’s. Detective Lopez opened the backpack to look for identification and saw a handgun’s grip, at which point he zipped the backpack. Officers then applied for a search warrant, and pursuant to that warrant, they found a handgun in the backpack. Porter moved to suppress the handgun evidence. The district court denied the motion, finding that Porter had abandoned the backpack and thus gave up any Fourth Amendment expectation of privacy. Alternatively, the court found that the gun would inevitably have been discovered pursuant to a valid inventory search. Porter entered a conditional plea of guilty to one count of being a felon in possession of a firearm, reserving the right to appeal the denial of his motion to suppress. He was sentenced to 43 months’ imprisonment and three years’ supervised release.

On appeal, Porter argued that the district court erred in finding that he had abandoned the backpack. He maintained that abandonment requires an unambiguous and unequivocal disclaimer of ownership, and he maintained that his responses to Detective Lopez’s questions cannot be understood to mean he did not have a backpack at all but rather none that he wanted to take with him to the station. Fourth Amendment protections do not apply to property that a defendant abandons prior to a warrantless search. Whether abandonment has occurred is an inquiry based on the objective facts. Here, the facts suggested that Porter subjectively intended to disclaim any ownership of the backpack, and the court found that a reasonable officer would believe Porter had abandoned it. Porter thus abandoned the backpack and surrendered any expectation of privacy in it, so the subsequent search was reasonable.

The sentence was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

Back to the From the Courts Page