VoteKansas.org

Massachusetts engages in a sensitive analysis of abandonment and subjective reasonable expectation of privacy and concludes that a fleeing suspect who stashes a backpack under a bush in a neighbor’s yard really didn’t have one. (Alternatively, there were exigent circumstances.) Commonwealth v. Carnes, 2012 Mass. App. LEXIS 182 (May 2, 2012):

A search in the constitutional sense requires that the defendant must have had a subjective expectation of privacy in the item or place searched, and that such expectation must have been one that society recognizes as reasonable. See, e.g., Commonwealth v. Pina, 406 Mass. 540, 544, cert. denied, 498 U.S. 832 (1990); Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). "The defendant bears the burden of establishing both elements." Commonwealth v. Montanez, 410 Mass. at 301. Here, the judge's conclusion of abandonment requires us to consider whether the defendant manifested a subjective expectation of privacy in the place searched, and in the contents of his backpack, which "could be considered objectively reasonable or legitimate." Commonwealth v. Straw, 422 Mass. 756, 759 (1996). More particularly, abandonment is a question of intent, which may be inferred from words, behavior, and other objective facts. See generally Commonwealth v. Paszko, 391 Mass. 164, 184 (1984).

Because we conclude that the defendant's actions in discarding the backpack in the back yard of his best friend suggest a subjective expectation of privacy, we focus on whether the defendant's subjective expectation of privacy "could be considered objectively reasonable or legitimate." Commonwealth v. Straw, 422 Mass. at 759. First, we consider that the defendant concealed his backpack outside, in a back yard in which "by law, he ... had no reasonable expectation of privacy." Id. at 761. He was neither the owner nor did he establish any right of control over the property. See Rawlings v. Kentucky, 448 U.S. 98, 105 (1980) (defendant put drugs in friend's purse over which he had no control or right to exclude others); United States v. Hershenow, 680 F.2d 847, 855-856 (lst Cir. 1982) (defendant had "no legal interest or even access rights" to the storage barn where he directed another to hide a box of incriminating evidence). See also Commonwealth v. Williams, 453 Mass. at 207-209 ("defendant lacked a reasonable expectation of privacy in the basement area [of her mother's apartment building] in which she had deposited some possessions"); United States v. Soto, 779 F. Supp. 2d 208, 219 (D. Mass. 2011) (defendant had no legitimate expectation of privacy in computer's hard drive left in vehicle defendant obtained by fraud and turned over to third party; hard drive deemed abandoned). Contrast Commonwealth v. Mubdi, 456 Mass. 385, 391-394 (2010), citing with approval Commonwealth v. Williams, supra.

. . .

In sum, the defendant's act of hiding his backpack in the bushes in his best friend's yard without establishing that he placed the backpack in someone else's control, while he was trying to avoid apprehension, and in particular, while he was in possession of a handgun, fails to evoke an expectation of privacy that society is willing to recognize as reasonable. See Commonwealth v. Carter, 424 Mass. 409, 412 (1997) (art. 14 "does not relieve a defendant who unlawfully intruded on someone else's reasonable expectation of privacy from establishing that he had a reasonable expectation of privacy himself"). The motion judge properly concluded that the backpack had been abandoned. See generally United States v. Morgan, 936 F.2d at 1570-1571, cited with approval in Commonwealth v. Straw, 422 Mass. at 760-761; United States v. Soto, 779 F. Supp. 2d at 219.

One could wish that all courts would do this analysis. Few would. Still, the defendant loses, but he can't complain he wasn't adequately heard.

John Yoo gets immunity under Ashcroft v. al-Kidd for the “Torture Memo.” Padilla v. Yoo, 2012 U.S. App. LEXIS 8934 (9th Cir. May 2, 2012):

After the September 11, 2011 attacks on the United States, the government detained Jose Padilla, an American citizen, as an enemy combatant. Padilla alleges that he was held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions of confinement, all in violation of his constitutional and statutory rights. In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice's Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was not "sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]" the plaintiffs' rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo's tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not "beyond debate" at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla's alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

NEW YORK (AP) -- It's a scream that's still reverberating around the world....

NEW YORK (AP) -- The mystery began with a heart attack, a man with a past, and a bag of money that federal authorities now want to keep....

PITTSBURGH (AP) -- The gritty western Pennsylvania city whose rich minor league hockey history helped inspire the cult movie hit "Slap Shot" is getting another chance to support a hockey team....

SAN DIEGO (AP) -- After two days of being handcuffed in a tiny holding cell and desperate for food and water, Daniel Chong said he realized he had to stop wondering when he'd be let out and start thinking about how to stay alive....

SAN JUAN CAPISTRANO, Calif. (AP) -- Reminders of the legend of the swallows are everywhere within the grounds of the historic Mission San Juan Capistrano: Tiny swallow silhouettes are etched into paving tiles, replicas of their distinctive mud nests hang from buildings and the gift shop overflows with swallow charms, figurines and postcards. What's missing are the swallows themselves....

YACOLT, Wash. (AP) -- When Princess Natalie was still a kitten, before she was prison royalty, she was left in a cage with another cat for months. They were fed, given water and not much else....

SAN FRANCISCO (AP) -- For the second time this year, a federal appeals court shielded a former Bush administration lawyer from a lawsuit filed by a convicted terrorist who alleged the attorney's so-called "torture memos" led to his illegally harsh treatment while in U.S. military custody....

GILBERT, Ariz. (AP) -- The gunman was among five people killed in a Phoenix-area shooting, but police have been hampered in reaching the dead and confirming identities because of possibly hazardous chemicals and munitions discovered at the suburban residence....

WASHINGTON (AP) -- When J. David Goldin saw the recorded interview of baseball great Babe Ruth for sale on eBay he knew something was wrong. There was only one original record of that 1937 interview of Ruth on a hunting trip, and Goldin had donated it to a government archive more than 30 years ago. Now someone was auctioning it off, the winning bid just $34.75....

WASHINGTON (AP) -- Amid his year-by-year narrative of his complex relationship with Roger Clemens and performance-enhancing drugs, Brian McNamee weaved in a tale of two wives. He said it was his own wife who nagged him into keeping evidence that has become crucial in the trial of the storied pitcher, and it was a request from Clemens' wife that led to what McNamee called a "creepy" injection scene in a bathroom....

WINNETKA, Ill. (AP) -- What if you knew, even before your child was born, that she wouldn't look like everyone else?...

WINNETKA, Ill. (AP) -- What if you knew, even before your child was born, that she wouldn't look like everyone else?...

WASHINGTON (AP) -- Tossing out President Barack Obama's health care law would have major unintended consequences for Medicare's payment systems, unseen but vital plumbing that handles 100 million monthly claims from hospitals and other service providers, the administration has quietly informed the courts....

WASHINGTON (AP) -- Tossing out President Barack Obama's health care law would have major unintended consequences for Medicare's payment systems, unseen but vital plumbing that handles 100 million monthly claims from hospitals and other service providers, the administration has quietly informed the courts....

ORLANDO, Fla. (AP) -- There was no single blow, stomp or strike to Robert Champion's bruised and battered body that killed him as he was pummeled by fellow Florida A&M University marching band members during a hazing ritual aboard a charter bus last fall....

ORLANDO, Fla. (AP) -- There was no single blow, stomp or strike to Robert Champion's bruised and battered body that killed him as he was pummeled by fellow Florida A&M University marching band members during a hazing ritual aboard a charter bus last fall....

PITTSBURGH (AP) -- The gritty western Pennsylvania city whose rich minor league hockey history helped inspire the cult movie hit "Slap Shot" is getting another chance to support a hockey team....

GILBERT, Ariz. (AP) -- Five people died in a shooting Wednesday at a Phoenix-area home, where the investigation was slowed by concerns there could be hazardous materials in 55-gallon drums in the backyard....