Commonwealth v. Straw

Brown, J.

On the morning of December 6, 1988, Marlon A. Straw was tipped off that the Boston police were imminently arriving at his family’s home in Dorchester with a warrant for his arrest.1 As the police entered the front door, Straw threw a briefcase out the window of his second-floor bedroom at the back of the house. It landed in the rear yard *739between the house and a wrought iron fence that separated the yard from the adjacent sidewalk.

The defenestration of the briefcase was observed by a Boston police officer prudently stationed at the rear of the house to intercept any attempted flight by Straw. After learning a few minutes later that Straw was in custody, the officer entered the rear yard, through a gate, to retrieve the briefcase. He noticed that the right side latch was unlocked, leaving that side of the briefcase slightly ajar. The officer pried open the right side of the case to look inside. He was able to see a plastic glassine bag containing a white, powdery substance that he believed (correctly, as it turned out) to be cocaine.2

The discovery of the contents of the briefcase caused the police to arrest Straw anew, on a drug charge. Advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 479 [1966]), Straw told the police that when they arrived at his house he became “nervous” and threw the briefcase out the back window. Straw was subsequently indicted for the offense of trafficking in over 200 grams of cocaine. Straw’s motion to suppress the contents of the briefcase, as the fruits of an illegal search in violation of his Fourth Amendment rights,3 was denied. The judge held that the officers were entitled to seize and search the case as abandoned property, as to which Straw had relinquished any reasonable expectation *740of privacy by his act of throwing it out the window. The judge also found exigent circumstances justified the failure to obtain a warrant because of the risk that Straw’s family might spirit away the incriminating briefcase during the time that would have elapsed while the police obtained a warrant. After a jury trial, Straw was convicted on the indictment and sentenced to at least fifteen years in prison.

Placing principal reliance on United States v. Chadwick, 433 U.S. 1 (1977), Straw maintains that the police officer performed an unconstitutional search4 of the briefcase in the rear yard of his family’s home and demands reversal of his trafficking conviction, which was almost entirely based upon the evidence of the contents of that case.

Seizure of the briefcase. The police were entitled, as Straw concedes (see note 4, supra) to seize the briefcase. They were lawfully on the premises pursuant to a valid arrest warrant and could legitimately stake out the rear of the house to prevent escape through the rear door. See United States v. Morehead, 959 F.2d 1489, 1496 (10th Cir. 1992). The circumstances of a briefcase being ejected from the house just as the police closed in for an arrest were such as to give a reasonable, prudent person applying practical common sense probable cause to believe that contraband or evidence of a crime might be being disposed of. See Massachusetts v. Upton, 466 U.S. 727, 734 (1984). We agree with the judge that the risk that members of Straw’s family might make off with the potentially incriminating briefcase justified immediate police action to secure it. United States v. Place, 462 U.S. 696, 701-702 (1983).

Abandonment. A warrantless search or seizure of property that has been “abandoned” does not violate the Fourth Amendment. Abel v. United States, 362 U.S. 217, 241 (1960). Police can treat property as abandoned for Fourth *741Amendment purposes when a defendant voluntarily relinquishes all control over it in such a way as to forgo any continued expectation of privacy in the item. See Commonwealth v. Battle, 365 Mass. 472, 475-476 (1974). The judge correctly concluded that Straw had “abandoned” the briefcase and thereby forfeited his Fourth Amendment rights therein.

The record reveals that the briefcase landed inside the fenced-in back yard of the single family home owned by Straw’s family, where he was then staying. That area is part of the curtilage and in the usual case would be entitled to the same Fourth Amendment protection as the home itself.5

Under the cases, abandonment occurs when property is discarded in a public place or other area open to public view and to which members of the public have access, or otherwise in an area where the discarder can have no reasonable expectation of privacy.6 See Commonwealth v. Paszko, 391 Mass. 164, 184-186 (1984); Commonwealth v. Pina, 406 Mass. 540, 546 (1990); Commonwealth v. Lanigan, 12 Mass. App. Ct. 913 (1981); Commonwealth v. Small, 28 Mass. App. Ct. 533, 536-537 (1990); Commonwealth v. Nutile, 31 Mass. App. Ct. 614, 619 (1991). Compare United States v. Morgan, 936 F.2d 1561, 1570-1571 (10th Cir. 1991) (bag abandoned when thrown by defendant to the side of a porch in the unfenced back yard of an acquaintance’s house next to an open field and wooded area, so that any “ability to recover *742the [bag] depended entirely upon fate and the absence of inquisitive [and acquisitive] passers-by”); United States v. Lewis, 227 F. Supp. 433, 436 (S.D. N.Y. 1964) (package abandoned when defendant threw it out of apartment window into common courtyard at rear of multi-unit apartment building).

An inference of an intent on Straw’s part to abandon the briefcase properly could be drawn from his throwing it into the back yard of his family’s home.7 The judge implicitly found an abandonment, and this he could permissibly do, as there is no rule of law that makes abandonment within the curtilage an oxymoron.

In United States v. Chadwick, 433 U.S. at 9, the Court said: “Our fundamental inquiry in considering Fourth Amendment issues is whether or not a search or seizure is reasonable under all the circumstances.” Here, an inference of an intent to abandon the briefcase is reasonably supported by the circumstances of this case. It is not reasonable that a person has an expectation of privacy in a briefcase he pitches out the window as the police came in the front door. The “expectation” — more a hope — is that the briefcase won’t be noticed. It would be obvious to any officer that the briefcase contained contraband. Moreover, in the circumstances of the arrest (assault with intent to murder), the content of the briefcase might even be dangerous. The police are entitled to make an on-the-spot inspection to check and secure *743potentially dangerous contents (i.e., ammunition, acid, explosives, or other dangerous instrumentality).

Judgment affirmed. .

The facts are derived from the trial judge’s findings and from uncontested testimony. The arrest warrant was issued following Straw’s default on a charge of assault with intent to murder lodged in Dorchester District Court. The record is silent as to the details of the alleged assault or the ultimate disposition of that charge.

Also inside the case were other bags of cocaine, totalling over 200 grams, an empty container of a cutting agent, plastic sandwich bags, $1,750 in cash, and a jewelry box with Straw’s name in it.

The Fourth Amendment to the Constitution of the United States protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court of the United States has construed the Fourth Amendment to make any government seizure and search of personal property, located in an area where the owner has a legitimate expectation of privacy, per se unreasonable unless it is accomplished pursuant to a warrant issued, as the Fourth Amendment also requires, by a judicial officer upon probable cause and particularly describing the items to be seized. Katz v. United States, 389 U.S. 347, 357 (1967). United States v. Place, 462 U.S. 696, 701 (1983). Straw has argued his case exclusively on the basis of his Fourth Amendment rights rather than on art. 14 of the Massachusetts Declaration of Rights (guaranteeing the “right to be secure from all unreasonable searches, and seizures”).

Straw concedes that the circumstances justified the officer’s seizure of the briefcase so as to secure it. See United States v. Place, 462 U.S. 696, 701 (1983). His appellate argument is confined to challenging the officer’s opening and inspection of the interior of the briefcase without first obtaining a search warrant.

The Fourth Amendment protections that attach to the house extend to the “curtilage,” the area immediately surrounding and associated with the home. Oliver v. United States, 466 U.S. 170, 180 (1984). A fenced-in back yard of a private home is within the curtilage, even if visible from the adjacent public sidewalk or street. California v. Ciraolo, 476 U.S. 207, 212-213 (1986). United States v. Dunn, 480 U.S. 294, 302 (1987).

The determination whether there is abandonment focuses on the intent of the alleged abandoner, although the ultimate test of abandonment is an objective one under which “intent may be inferred from words spoken, acts done, and other objective facts.” Commonwealth v. Small, 28 Mass. App. Ct. 533, 536 (1990). Review of a trial judge’s finding of abandonment on a motion to suppress is under the clearly erroneous standard, United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989), and the evidence is considered in the light most favorable to the government. United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir. 1990).

Straw argues on appeal that his postarrest statement, about throwing the briefcase out the window because he “became nervous” when the police arrived, should have been suppressed as fruit of the illegal search of the briefcase. He did not move for suppression below, although he did object to introduction of the statement at trial. We do not have to pass on this contention (but see Wong Sun v. United States, 371 U.S. 471, 487-488 [1963]; Commonwealth v. Conway, 2 Mass. App. Ct. 547, 553-554 [1974]) because we have no need to address the Commonwealth’s assertion that the statement revealed Straw’s intent to abandon the case and its incriminating contents. Nor do we need decide whether the statement is wholly consistent with an intent merely to put the case beyond police reach while hoping eventually to reclaim it, to exactly the same extent as if he had more skillfully or thoughtfully secreted it in another protected area of the home such as an attic or a closet or even another room. Cf. Smith v. Ohio, 494 U.S. 541, 543-544 (1990).