United States v. Juszczyk , 844 F.3d 1213 ( 2017 )

FILED
United States Court of Appeals
Tenth Circuit
January 3, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 15-3323
NICOLAS P. JUSZCZYK,
Defendant-Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:13-CR-20120-CM-1)
_________________________________
Submitted on the briefs. *
Melody Brannon, Federal Public Defender, Thomas W. Bartee, Assistant
Federal Public Defender, and Daniel T. Hansmeier, Appellate Chief,
Kansas Federal Public Defender, Kansas City, Kansas, for Defendant-
Appellant.
Thomas E. Beall, Acting United States Attorney, Jared S. Maag, Assistant
United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-
Appellee.
_________________________________
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). The case is therefore ordered submitted without oral
argument.
Before L U C E R O , M c K A Y , and B A C H A R A C H , Circuit Judges.
_________________________________
B A C H A R A C H , Circuit Judge.
_________________________________
The Fourth Amendment does not prohibit a search of property that
has been “abandoned.” United States v. Ruiz, 664 F.3d 833, 841 (10th Cir.
2012). The property at issue here is a backpack owned by Mr. Nicolas
Juszczyk, who was repairing his motorcycle in the backyard of Ms. Tina
Giger. A concerned neighbor contacted police, who came to investigate.
When they did, Mr. Juszczyk threw the backpack onto Ms. Giger’s roof,
where the backpack was later retrieved by police and searched. Inside was
methamphetamine, a firearm, and documents bearing Mr. Juszczyk’s
name. We must determine: Did Mr. Juszczyk lack an objectively
reasonable expectation of privacy after throwing his backpack onto Ms.
Giger’s roof? We conclude that any expectation of privacy was not
objectively reasonable; as a result, Mr. Juszczyk abandoned the backpack
and the search was lawful.
1. Standard of Review
Mr. Juszczyk moved to suppress evidence found during the search,
but the district court denied the motion. We review this ruling de novo.
See United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997)
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(stating that we engage in de novo review of the district court’s
determination on the objective element of abandonment).
In applying de novo review, we view the evidence in the light most
favorable to the ruling and review the district court’s factual findings
under the clear-error standard. See United States v. Morgan, 936 F.2d
1561, 1570 (10th Cir. 1991) (viewing the evidence in a light favorable to
the ruling); United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012)
(reviewing factual findings under the clear-error standard). 1
2. In applying this standard of review, we conclude that Mr.
J u s zc zy k a b a n d o n e d t h e b a c k p a c k .
Under this standard of review, we conclude that Mr. Juszczyk
abandoned his backpack.
1
Our case law provides conflicting signals on the standard of review.
See United States v. Garzon, 119 F.3d 1446, 1453 (10th Cir. 1997)
(Porfilio, J., dissenting). We have sometimes treated abandonment as a
factual matter, limiting our review under the clear-error standard. United
States v. Austin, 66 F.3d 1115, 1118 (10th Cir. 1995); United States v.
Hernandez, 7 F.3d 944, 947 (10th Cir. 1993); United States v. Trimble,
986 F.2d 394, 399 (10th Cir. 1993); United States v. Jones, 707 F.2d 1169,
1172 (10th Cir. 1983). Other times, we have treated abandonment as a dual
inquiry, triggering clear-error review for a finding on the individual’s
subjective intent and de novo review on the objective reasonableness of
the individual’s expectation of privacy. United States v. Ojeda-Ramos,
455 F.3d 1178, 1187 (10th Cir. 2006); United States v. Garzon, 119 F.3d
1446, 1449 (10th Cir. 1997). Ordinarily, we resolve intra-circuit conflicts
by giving precedence to the earlier of two conflicting opinions. Haynes v.
Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). In this appeal, however,
we need not resolve this potential intra-circuit conflict because we would
affirm even under de novo review.
3
Property is considered abandoned if the owner lacks an objectively
reasonable expectation of privacy. United States v. Garzon, 119 F.3d
1446, 1449 (10th Cir. 1997). Abandonment contains subjective and
objective components. Id. Applying these components, a court must find
abandonment if Mr. Juszczyk’s toss onto the roof reflected his intent to
relinquish any right to the backpack or if his expectation of privacy was
no longer objectively reasonable. See id.
Mr. Juszczyk obviously was trying to conceal the backpack from
police. But did he intend to come back to get it? Even if he did, he would
have lacked an objectively reasonable expectation of privacy after
throwing the backpack onto the roof.
Ms. Giger testified that she had not allowed Mr. Juszczyk to keep
anything on the roof. He was allowed to use her backyard to fix his
motorcycle; he had no permission to keep his belongings on the roof.
Thus, Mr. Juszczyk would need to obtain permission from Ms. Giger to go
onto her roof to retrieve the backpack.
Viewing the evidence favorably to the ruling, one could justifiably
question why anyone would have expected Ms. Giger to allow Mr.
Juszczyk onto the roof. The two were not close. When confronted by the
police, Mr. Juszczyk did not even know the homeowner’s gender or name.
And Mr. Juszczyk had seen the homeowner only about three times in his
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life. If Mr. Juszczyk would have asked to go onto the roof to retrieve his
backpack, the homeowner would presumably have been suspicious. 2 She
had just had her house searched after giving Mr. Juszczyk permission to
fix his motorcycle in her backyard.
We addressed a similar situation in United States v. Morgan, 936
F.2d 1561 (10th Cir. 1991). There the defendant threw a bag onto the
porch of a house owned by someone he was accompanying. Nonetheless,
we held that there was an abandonment. “The fact that Mr. Morgan was in
the backyard of someone he knew or was acquainted with, at the time he
threw the bag, is of little significance. The record reveals we do not have
before us a case where the item was left to the care or responsibility of
another, or where there is a delayed indication of an intent to retain an
expectation of privacy in the item.” Morgan, 936 F.2d at 1570-71.
As Mr. Juszczyk argues in his reply, Morgan differs from our case
because there the defendant had no one who could retrieve the bag; here
Ms. Giger theoretically could have retrieved the backpack for Mr.
Juszczyk. But viewing the evidence in the light most favorable to the
ruling, Mr. Juszczyk could not reasonably expect Ms. Giger to retrieve the
2
The district court found that Mr. Juszczyk had “failed to show an
ongoing and meaningful connection to [Ms.] Giger’s home.” R. vol. 2, at
179.
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backpack and keep it for him after he had thrown it onto her roof,
sparking the arrival of police and a search of her house.
In his reply brief, Mr. Juszczyk argues that Ms. Giger or an
acquaintance, who sometimes stayed with Ms. Giger, could have retrieved
the backpack. That is true. But viewing the evidence in the light most
favorable to the ruling, we conclude that such an expectation would have
been unreasonable. The district court could justifiably infer that Ms.
Giger would not have allowed Mr. Juszczyk to retrieve his backpack after
he had tried to conceal it on her rooftop, leading to a police search of her
house, when Mr. Juszczyk was supposed to be fixing his motorcycle in
the backyard. 3
In these circumstances, the district court properly concluded that
Mr. Juszczyk had abandoned the backpack. Viewing the evidence in the
3
In his reply brief, Mr. Juszczyk argues that a neighbor could
retrieve the backpack only by committing a trespass:
The backpa c k was located on the roof of a private residence. In
order to retrieve the backpack, a person would have had to enter
the yard with a ladder and climb the ladder to the roof of the
home. It is implausible to think that society is prepared to
recognize such actions as reasonable. Indeed, to do such a thing
would be to commit a trespass, some thing the law does not
allow.
Appellant’s Reply Br. at 10-11. Mr. Jusz c z yk would have been in the same
position as a neighbor; both would have had to commit a trespass or to
obtain new consent to go onto the roof to retrieve the backpack.
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light most favorable to the ruling, we conclude that Mr. Juszczyk did not
retain an objectively reasonable expectation of privacy once he threw the
backpack onto the roof. In these circumstances, the district court
correctly denied Mr. Juszczyk’s motion to suppress.
Affirmed.
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