Fifth Circuit Holds Warrant Required to Seize Jacket Containing Firearm Thrown Into Relative’s Yard

Fifth Circuit Holds that Throwing Jacket Containing Firearm Over a Fence Into Family Member’s Yard Was Not “Abandonment” of Jacket and Cops Needed a Search Warrant to Seize the Jacket

United States v. Ramirez, No. 22-50042, 2023 U.S. App. LEXIS 11496 (5th Cir. May 10, 2023)

A man suspected by police threw his jacket over his mother’s fence before he was arrested. That jacket contained a firearm and the cops retrieved the jacket and charged him with being a felon in possession of a firearm. But the cops did so without a search warrant. Was their seizure of the jacket properly done with a search warrant? The Fifth Circuit said no.

The government argued on appeal that the man had “abandoned” his jacket by tossing it over the fence. They said this negated any need for law enforcement to obtain a warrant to seize the jacket because abandoned property, like trash left at the curb, is fair game without a warrant. But the Court didn’t agree. Instead, they said that there has to be an intent by someone to abandon their property before law enforcement can seize that property without a warrant. By throwing the jacket over his mother’s fence, it could be assumed he put it there for safekeeping. This, the Court said, was not an intent to abandon his property. He maintained an “expectation of privacy” by throwing it over the fence of a relative. That’s the touchstone of the Fourth Amendment, an expectation of privacy.

The Court of Appeals therefore vacated the conviction and sentence, remanding for further proceedings.

Dale’s take: If law enforcement illegally seized the jacket, the evidence must be tossed. That means the government’s case is dead, under the “fruit of the poisonous tree” doctrine, and they can’t use that same evidence to file new charges. Successful challenges to the evidence in a case is always the slam dunk of challenges in criminal cases.

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