United States v. Kyle

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-CO-330

UNITED STATES, APPELLANT,

v.

MONTERO KYLE, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CF2-5408-18)

(Hon. Judith Smith, Trial Judge)

(Argued December 9, 2021 Decided February 10, 2022)

Daniel J. Lenerz, Assistant United States Attorney, with whom Michael R.

Sherwin and Channing D. Phillips, Acting United States Attorneys at the time the

briefs were filed, and Elizabeth Trosman, John P. Mannarino, and Dennis Clark,

Assistant United States Attorneys, were on the briefs, for appellant.

Shilpa S. Satoskar, Public Defender Service, with whom Samia Fam and

Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and

FISHER, Senior Judge.

MCLEESE, Associate Judge: The United States appeals from the trial court’s order

suppressing evidence. We reverse.

2

I.

The following evidence was introduced at a hearing on appellant Montero

Kyle’s motion to suppress evidence. At around 11 p.m. one night, uniformed

Metropolitan Police Department officers saw a group of people in the street and on

the sidewalk. Loud music was playing, and people in the group appeared to be

drinking. Officers got out of the car, and one of them noticed Mr. Kyle, who was

walking away from the group. Mr. Kyle was holding a bottle and had a backpack in

his hand. One of the officers said “hey boss, come here,” and Mr. Kyle then ran.

The officer chased Mr. Kyle into an alley, where Mr. Kyle fell. As Mr. Kyle got up,

he threw the backpack over a ten-foot-tall, solid fence separating the alley from a

backyard. Mr. Kyle ran again, leaving the alley, running onto another street, and

entering the backyard of a house on that street, where the officer apprehended him.

Another officer retrieved the backpack, which contained a gun, Mr. Kyle’s expired

D.C. identification, his current Virginia driver’s license, his vehicle registration and

title, Virginia and D.C. license plates, and a set of keys, among other items.

Mr. Kyle moved to suppress the evidence obtained from the backpack,

arguing that the seizure and search of the backpack were unlawful under the Fourth

3

Amendment. The United States argued in response that the seizure and search of

the backpack did not violate Mr. Kyle’s Fourth Amendment rights, because Mr. Kyle

had abandoned the backpack. The trial court granted the motion to suppress,

concluding that Mr. Kyle had not abandoned the backpack. The trial court gave

several reasons for its conclusion: (1) the backpack contained personal items that

would have been expensive, difficult, or impossible to replace; (2) the closed

backpack was not an obviously incriminating item such as an exposed gun or drugs;

(3) Mr. Kyle threw the backpack onto private property rather than in a public place;

and (4) after Mr. Kyle threw the backpack over a high fence, the backpack was not

immediately or readily accessible to the police. The trial court acknowledged the

United States’s argument that Mr. Kyle had thrown the backpack into the yard of a

stranger, but reasoned that the officers would not have known that when they

retrieved the backpack.

The trial court also ruled in the alternative that, even if Mr. Kyle had

abandoned the backpack, the evidence recovered from the backpack should be

suppressed because the police lacked both a warrant and adequate grounds to seize

and search the backpack.

4

II.

When reviewing a trial court’s ruling on a motion to suppress, we “view the

evidence in the light most favorable to the prevailing party.” Bennett v. United

States, 26 A.3d 745, 751 (D.C. 2011) (internal quotation marks omitted). We draw

all reasonable inferences in favor of upholding the trial court’s ruling. Milline v.

United States, 856 A.2d 616, 618 (D.C. 2004).

The seizure and search of the backpack could violate Mr. Kyle’s rights under

the Fourth Amendment only if Mr. Kyle “manifested a subjective expectation of

privacy in [the backpack] that society accepts as objectively reasonable.” California

v. Greenwood, 486 U.S. 35, 39 (1988). In other words, Mr. Kyle can prevail only if

both (1) he retained a subjective expectation of privacy in the backpack; and (2) that

expectation of privacy was objectively reasonable.

Mr. Kyle emphasizes our statement that “the ultimate determination of

abandonment in the Fourth Amendment sense hinges on the outcome of a factual

inquiry into intent.” Spriggs v. United States, 618 A.2d 701, 703 (D.C. 1992)

(brackets and internal quotation marks omitted); see also United States v. Boswell,

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347 A.2d 270, 274 (D.C. 1975) (“Abandonment is primarily a question of

intent . . . .”). It is true that the subjective intent of the defendant is an important part

of the relevant inquiry. Our cases, including Spriggs and Boswell, make clear,

however, that the defendant’s intent is only half of the inquiry. For a defendant to

prevail on a motion to suppress, the defendant’s subjective expectation of privacy

must also be objectively reasonable. E.g., Spriggs, 618 A.2d at 703 n.3 (question is

whether defendant voluntarily “relinquished his interest in the property in question

so that he could no longer retain a reasonable expectation of privacy with regard to

it at the time of the search”) (emphasis added and internal quotation marks omitted);

Boswell, 347 A.2d at 274 (same); see also, e.g., Greenwood, 486 U.S. at 39 (seizure

and search is basis for relief under Fourth Amendment only if defendant “manifested

a subjective expectation of privacy . . . that society accepts as objectively

reasonable”) (emphasis added).

In the present case, we assume without deciding that Mr. Kyle retained a

subjective expectation of privacy in the backpack. We hold that throwing the

backpack over a fence into someone else’s backyard while fleeing from the police

precluded Mr. Kyle from retaining an objectively reasonable expectation of privacy

in the backpack. We note that Mr. Kyle does not dispute that his action in throwing

the backpack over the fence was voluntary for purposes of this case.

6

The issue presented in cases such as this is often discussed using the term

“abandonment.” E.g., Dozier v. United States, 220 A.3d 933, 947 n.20 (D.C. 2019).

That term also refers to a property-law concept, however, and its use in the Fourth

Amendment context has the potential to create confusion. “The issue is not

abandonment in the strict property-right sense . . . .” Boswell, 347 A.2d at 274. “It

is possible for a person to retain a property interest in an item . . . while at the same

time relinquishing any reasonable expectation of privacy for purposes of obtaining

suppression.” Holt v. United States, 675 A.2d 474, 479 n.3 (D.C. 1996); see also,

e.g., Oliver v. United States, 466 U.S. 170, 183 (1984) (holding that there is no

reasonable expectation of privacy in open fields; “The existence of a property right

is but one element in determining whether expectations of privacy are legitimate.

The premise that property interests control the right of the Government to search and

seize has been discredited.”) (internal quotation marks omitted); United States v.

Salvucci, 448 U.S. 83, 91 (1980) (“This Court has repeatedly repudiated the notion

that arcane distinctions developed in property and tort law ought to control our

Fourth Amendment inquiry.”) (internal quotation marks omitted). We therefore

focus our inquiry on whether Mr. Kyle retained an objectively reasonable

expectation of privacy in the backpack at the time the police seized and searched the

backpack.

7

Our cases are not entirely clear as to our standard of review. Compare, e.g.,

Spriggs, 618 A.2d at 703 (“Because the ultimate determination of abandonment in

the Fourth Amendment sense hinges on the outcome of a factual inquiry into intent,

a finding of abandonment is reviewed under a clearly erroneous standard.”) (brackets

and internal quotation marks omitted), with, e.g., Brown v. United States, 97 A.3d

92, 95-97 (D.C. 2014) (in context of abandonment claim, court states that whether

defendant has reasonable expectation of privacy is issue of law that court reviews de

novo). Because the standard of review does not affect the outcome of this appeal,

we assume without deciding that we review the trial court’s ruling for clear error.

On a related topic, Mr. Kyle argues that abandonment must be shown by clear,

unequivocal, and decisive evidence. Boswell, 347 A.2d at 275. The United States

has not disputed that argument. We therefore also assume without deciding that the

United States bore a heightened burden of proof in this case. But see, e.g., Nix v.

Williams, 467 U.S. 431, 444 n.5 (1984) (“[T]he controlling burden of proof at

suppression hearings should impose no greater burden than proof by a

preponderance of the evidence.”) (internal quotation marks omitted); State v.

Rynhart, 125 P.3d 938, 943 (Utah 2005) (applying preponderance-of-evidence

standard to issue of Fourth Amendment abandonment, explaining that “the

distinction between the concept of abandonment in property law and in the context

8

of the Fourth Amendment supports application of the burden of proof generally

applicable to motions to suppress”).

III.

We hold that Mr. Kyle clearly lacked an objectively reasonable expectation

of privacy in his backpack at the time the backpack was seized and searched. While

fleeing from the police, and in the sight of the pursuing officer, Mr. Kyle threw the

backpack over a fence into a backyard that was not his own. There was no evidence

that he had any other connection to the backyard, which happened to be next to the

spot in the alley where he fell down while fleeing. After he threw the backpack, Mr.

Kyle got up and ran some distance before ultimately being apprehended by police.

We conclude that those circumstances are clearly, unequivocally, and decisively

inconsistent with an objectively reasonable expectation of privacy in the backpack.

When an item is voluntarily “discarded in a public area in anticipation of a

police investigation, the fourth amendment does not set limits on [the item’s]

recovery by the police . . . .” Boswell, 347 A.2d at 274, 275 n.10 (quoting Smith v.

United States, 292 A.2d 150, 151 n.4 (D.C. 1972)). In Spriggs, for example, officers

9

approached Ms. Spriggs, who placed an opaque key case filled with valuable drugs

on the curb of a public sidewalk and walked four to seven feet away from the key

case. 618 A.2d at 702-03. This court affirmed the trial court’s conclusion that Ms.

Spriggs had abandoned the key case for purposes of the Fourth Amendment. Id. at

703.

In several respects, the circumstances of this case are more inconsistent with

an objectively reasonable expectation of privacy than the circumstances of Spriggs

were. Ms. Spriggs placed her item down, whereas Mr. Kyle threw his; Ms. Spriggs

walked away from her item, whereas Mr. Kyle ran away from his; and Ms. Spriggs

traveled only a few feet from her item, whereas Mr. Kyle traveled quite a bit farther

from his. Mr. Kyle, however, points to another difference between this case and

Spriggs: Ms. Spriggs left her item in plain view in a public place, whereas Mr. Kyle

left his on private property behind a fence that hid the item from general public view.

We agree with Mr. Kyle that this difference is relevant. We disagree, however, that

it suffices to support the trial court’s ruling in the circumstances of this case.

It appears to be undisputed that Mr. Kyle threw his backpack into another

person’s backyard. The parties do dispute whether that person was proven to be a

10

stranger to Mr. Kyle. The United States argues that the trial court found as a matter

of fact that Mr. Kyle threw the backpack into the backyard of a stranger. Mr. Kyle

argues that the trial court made no such finding and that the record would not have

supported such a finding. We need not resolve that dispute. For current purposes,

it suffices that Mr. Kyle threw his backpack into another person’s backyard and that

there was no evidence that Mr. Kyle had any connection to the homeowner. Mr.

Kyle should reasonably have expected that the homeowner might notice the

backpack and open it to determine whose it was or whether it contained dangerous

or illegal items. Mr. Kyle also should reasonably have expected that the homeowner

might ask the police to come and investigate an unexplained backpack in the

homeowner’s backyard. Moreover, Mr. Kyle placed the backpack in a location that

might well have been legally inaccessible to him, because -- unless he obtained

consent from the homeowner -- he would have had no legal right to enter onto

another’s property to retrieve the backpack. See, e.g., State v. Burt, 918 N.W.2d 501

(Table), 2018 WL 1629233, at *3 (Iowa Ct. App. 2018) (“[R]etrieving personal

property intentionally left on another person’s property is not a legitimate purpose

or defense to trespassing.”); Restatement (Second) of Torts § 198(1) (Am. L. Inst.

1965) (although party may in some circumstances enter onto property of another to

recover party’s chattel, that is not true if chattel is on property with party’s consent);

75 Am. Jur. 2d Trespass § 84 (Nov. 2021 update) (same).

11

We do not mean to suggest that these circumstances by themselves are fatal

to Mr. Kyle’s claim. Rather, our holding is that Mr. Kyle clearly lacked an

objectively reasonable expectation of privacy in the backpack given these

circumstances and the other circumstances of the case, including that Mr. Kyle threw

the backpack while fleeing from the police and while in view of the police, and that

Mr. Kyle then ran off, substantially distancing himself from the backpack.

Numerous courts have concluded that defendants lacked an objectively

reasonable expectation of privacy in circumstances comparable to those of this case.

See, e.g., United States v. Juszczyk, 844 F.3d 1213, 1213-15 & n.3 (10th Cir. 2017)

(Mr. Juszczyk lacked objectively reasonable expectation of privacy in backpack

containing identifying documents and contraband, where Mr. Juszczyk, who was in

yard of acquaintance’s home working on motorcycle, threw backpack onto roof

when police arrived at home; in absence of specific consent from homeowner, Mr.

Juszczyk would have committed trespass if he had tried to retrieve backpack from

roof); United States v. Nowak, 825 F.3d 946, 947-49 (8th Cir. 2016) (per curiam)

(Mr. Nowak lacked objectively reasonable expectation of privacy in backpack

containing handgun, where Mr. Nowak asked friend for ride, police officers stopped

car for traffic violation, and Mr. Nowak fled from car despite being told to remain,

leaving backpack behind; “In this case, there is simply no evidence that [Mr.] Nowak

12

gave any indication—verbal or otherwise—that he intended for [the driver] (or

anyone else) to take care or possession of the backpack in his absence such that his

personal belongings would remain private. Nor do the circumstances lend

themselves to such a conclusion.”); Commonwealth v. Carnes, 967 N.E.2d 148, 150-

53 (Mass. App. Ct. 2012) (Mr. Carnes lacked objectively reasonable expectation of

privacy in backpack containing weapon, where Mr. Carnes fled scene of murder, put

backpack in bushes between shed and fence in best friend’s backyard, and then left

area; Mr. Carnes concealed backpack in backyard he neither owned nor controlled,

throwing backpack into bushes was not “normal precaution[] to maintain his

privacy,” and there was “no evidence that [Mr. Carnes] left the item to the care or

responsibility of another”); State v. Kolia, 169 P.3d 981, 983-84, 985-90 (Haw. Ct.

App. 2007) (Mr. Kolia lacked objectively reasonable expectation of privacy in fanny

pack containing drugs, where Mr. Kolia threw fanny pack on roof of laundry-room

building while fleeing from police and there was no evidence of Mr. Kolia’s

connection to location; “[T]he laundry room roof was on private property at a place

which was inaccessible except to those who had both the means (such as a ladder)

and the right to gain access to the roof. Thus, [Mr.] Kolia himself would have been

unable to retrieve the fanny pack without both the permission of the property owners

and the proper means to retrieve it.”) (citing numerous cases); United States v.

Taylor, 462 F.3d 1023, 1025-26 (8th Cir. 2006) (Mr. Taylor abandoned black bag

13

containing cocaine, where Mr. Taylor fled from police officers and threw bag into

nearby backyard, and officers found bag with assistance of drug-sniffing dog);

United States v. Figueroa, 187 F.3d 623 (Table), 1998 WL 1085825, at *1-2, *4-5

(1st Cir. 1998) (per curiam) (Mr. Figueroa had no objectively reasonable expectation

of privacy in box containing handgun and drugs, where police went to execute search

warrant at Mr. Figueroa’s apartment, Mr. Figueroa fled to another apartment in

building and left box in that apartment; “We are mindful that . . . the contraband here

was discarded in a private residence rather than in a public place. That distinction,

however, makes no difference under these circumstances. [Mr.] Figueroa simply

stashed the box in the nearest available place in hopes that it would not be discovered

by the officers who were in pursuit of him.”).

We acknowledge a complication in our reliance upon our decision in Spriggs

and the out-of-jurisdiction decisions just cited. In Spriggs, we affirmed a ruling of

the trial court as not clearly erroneous. 618 A.2d at 703. The out-of-jurisdiction

decisions just cited all affirmed trial-court rulings and/or conducted de novo review

of trial-court rulings as to whether a defendant had an objectively reasonable

expectation of privacy. E.g., Juszczyk, 844 F.3d at 1213-15 (affirming under de novo

review). As we have explained, supra at 6, we take as a given for purposes of this

case that we are required to affirm the trial court’s ruling unless that ruling was

14

clearly erroneous. Appellate decisions affirming trial-court rulings under deferential

or de novo review do not necessarily establish that a contrary trial-court ruling

should properly be reversed when the appellate court is instead required to review

the trial court’s ruling under a deferential standard of review, such as the clear-error

standard. Cf., e.g., Workman v. United States, 255 A.3d 971, 978 (D.C. 2021)

(“Appellate decisions upholding a given exercise of discretion do not necessarily

establish that a different exercise of discretion would be impermissible.”).

Nevertheless, for the reasons that we have stated and that are stated in the decisions

we have cited, we conclude that Mr. Kyle clearly lacked an objectively reasonable

expectation of privacy in the backpack at the time the backpack was seized and

searched.

In reaching that conclusion, we note that we are not aware of any decision

holding that a defendant retained a reasonable expectation of privacy in

circumstances comparable to those of the present case. Mr. Kyle seeks support from

five decisions that he contends are comparable, but we are not persuaded.

First, in Boswell, Mr. Boswell, who was not aware that he was being watched

by an off-duty police detective, left a television covered by a blanket in a hallway in

15

his brother-in-law’s apartment building and then went next door to a laundromat to

make a telephone call. 347 A.2d at 272-73. This court held that Mr. Boswell had

not abandoned the television. Id. at 274-75. Boswell differs from the present case

in numerous respects, including that Mr. Boswell was not fleeing from the police,

Mr. Boswell did not leave the vicinity of the television, there was evidence that Mr.

Boswell had a connection to the place where he left the television, and Mr. Boswell

did not throw the television into an area where Mr. Boswell might have been unable

to lawfully retrieve it. Boswell specifically distinguished situations involving

“objects . . . thrown away or discarded in anticipation of a police arrest or

interrogation.” Id. at 275 n.10. Although we need not explore this issue further, we

also note that this court has previously questioned the outcome of Boswell in light

of subsequent Supreme Court decisions. Godfrey v. United States, 408 A.2d 1244,

1246-47 & nn.1-2 (D.C. 1979), amended, 414 A.2d 214 (D.C. 1980).

Second, in Shreeves v. United States, (D.C. 1978), Mr. Shreeves robbed and

killed a person in the District of Columbia. Id. at 776. The next day, Mr. Shreeves

killed another person in Maryland and shot a police officer who had stopped Mr.

Shreeves’s car to investigate. Id. at 776-77. The day after that, police were informed

that Mr. Shreeves’s car had been parked for seven hours on private land behind a

farmers’ market. Id. at 777. This court held that Mr. Shreeves had not abandoned

16

the car, concluding instead that Mr. Shreeves had intended to “secrete” the car, in

which he had left “a substantial number of his personal belongings.” Id. at 784-85

(internal quotation marks omitted). Our opinion in Shreeves did not explicitly

explain why Mr. Shreeves had an objectively reasonable expectation of privacy in

the car, instead focusing on whether Mr. Shreeves subjectively intended to give up

his interest in the car. Id. On the issue of objective reasonableness, Shreeves is

similar to this case in one significant respect: Mr. Shreeves left his car on private

property. Id. at 777. This court did not address the significance of that fact, however,

and the surrounding details are not described. Id. at 777, 784-85. For example, it is

unclear whether the private property in Shreeves served as a parking lot for the

farmers’ market. Id. It thus is unclear whether Mr. Shreeves would have been a

trespasser had he retrieved his car. In any event, Shreeves differs from the present

case in several important respects: Mr. Shreeves apparently parked his car, which is

the normal way that people leave cars, whereas Mr. Kyle threw his backpack into

someone else’s backyard; and there was no evidence that Mr. Shreeves fled from his

car in the sight of police officers, whereas Mr. Kyle did flee from his backpack in

the sight of the police.

Third, in Biles v. United States, 101 A.3d 1012 (D.C. 2014), Mr. Biles was

selling DVDs at a flea market. Id. at 1015. He kept the DVDs about eight feet away

17

from where he was standing, in a box hidden under a backpack, next to a door into

the flea market. Id. This court held that Mr. Biles had a reasonable expectation of

privacy in his belongings. Id. at 1024-25. The court explained that Mr. Biles had

not “discarded” his belongings, but instead had kept them “protected from view and

in his line of sight.” Id. (brackets and internal quotation marks omitted). This case

differs from Biles in both of those respects, as well as because Mr. Biles did not flee

from police and there was no indication that Mr. Biles would have invaded someone

else’s property rights by retrieving the DVDs.

The two out-of-jurisdiction decisions that Mr. Kyle emphasizes are

distinguishable for similar reasons. In Young v. State, 72 P.3d 1250 (Alaska Ct. App.

2003), the court held that Mr. Young did not abandon tissue-paper bundles

containing crack cocaine by crouching down to slide them under the locked door of

a motel closet and then standing up. Id. at 1250-54. In so holding, the court

explained that Mr. Young had not thrown the bundles away and did not walk away

from the bundles after hiding them. Id. at 1254. Similarly, in People v. Kelly, 568

N.Y.S.2d 804 (App. Div. 1991), the court held that Mr. Kelly did not abandon a

brown paper bag by putting the bag behind a metal flap in the lobby of an apartment

building and then walking a short distance out to the building’s stoop. Id. at 805.

Young and Kelly differ from this case in several important respects. In neither Young

18

nor Kelly did the defendant throw the item at issue; in neither case did the defendant

then run a substantial distance away from a thrown item; and in neither case was it

clear that the defendant would have been unable to lawfully retrieve the thrown item

without obtaining a property owner’s consent.

We also are not persuaded by the additional points made by the trial court and

by Mr. Kyle. First, the trial court noted that the police officers would have been

unaware at the time of the incident that Mr. Kyle had thrown his backpack into the

yard of a stranger. As the parties agree, however, the objective reasonableness of

Mr. Kyle’s expectation of privacy must be determined based on all of the

circumstances, not only those circumstances known by the police at the time of the

search or seizure at issue. See, e.g., Boswell, 347 A.2d at 274 (all relevant

circumstances should be considered); United States v. Paradis, 351 F.3d 21, 32 (1st

Cir. 2003) (“When abandonment is argued to show lack of a Fourth Amendment

interest, a court inquires into all facts, including those not known to the police at the

time of their search. After all, the question is not what the police knew but whether

the defendant had a reasonable expectation of privacy in the seized object.”) (citation

omitted).

19

Second, the trial court noted that Mr. Kyle’s backpack contained personal

items that would have been expensive, difficult, or impossible to replace. That fact

is most directly relevant to whether Mr. Kyle intended, if possible, to eventually

retrieve the backpack, which in turn is relevant to whether Mr. Kyle retained a

subjective expectation of privacy in the backpack. We have no occasion to address

that issue, however, in light of our conclusion that in any event Mr. Kyle clearly

lacked an objectively reasonable expectation of privacy in the backpack. We assume

for purposes of our decision that the value of the items inside the backpack has at

least some relevance to the objective reasonableness of Mr. Kyle’s expectation of

privacy. Nevertheless, we do not view the value of the items in the backpack as

sufficient to support an objectively reasonable expectation of privacy in the

backpack in the circumstances of this case. See, e.g., Spriggs, 618 A.2d at 702-03

(holding that Ms. Spriggs abandoned key case containing over $400 worth of heroin

and cocaine).

Third, the trial court noted that the closed backpack was not an obviously

incriminating item such as an exposed gun or drugs. That fact is relevant to the

objective-reasonableness inquiry, but we do not view it as sufficient in the

circumstances of this case. The key case in Spriggs also was not obviously

20

incriminating until it was opened. 618 A.2d at 702. The same is true of the various

containers at issue in the out-of-jurisdiction cases cited supra at pp. 10-12.

Fourth, the trial court noted that Mr. Kyle threw the backpack over a high

fence, making the backpack not immediately or readily accessible to the police. That

fact also is relevant but does not suffice in the circumstances of this case. Most

importantly, Mr. Kyle threw the bag onto a location -- someone else’s backyard --

that was readily accessible to the homeowner and that was at least as inaccessible to

him as it was to the police. See, e.g., Juszczyk, 844 F.3d at 1213-15 & n.3 (no

objectively reasonable expectation of privacy in object thrown on another’s roof);

Kolia, 169 P.3d at 985-90 (same); Carnes, 967 N.E.2d at 150-53 (same as to object

thrown into another’s backyard); Taylor, 462 F.3d at 1025-26 (same).

Fifth, Mr. Kyle argues that the trial court implicitly found that he intended to

hide the backpack. The United States disputes that the trial court made any such

finding. We need not resolve that dispute, although we do note that throwing the

backpack over a fence while in the sight of a chasing police officer does not seem to

be a very effective way of hiding the backpack. Even assuming that Mr. Kyle

intended to hide the backpack, we conclude that he clearly lacked an objectively

21

reasonable expectation of privacy in the backpack given the manner and

circumstances in which he did so. See, e.g., Carnes, 967 N.E.2d at 150-53 (no

reasonable expectation of privacy in backpack Mr. Carnes attempted to hide in

bushes in best friend’s yard); Taylor, 462 F.3d at 1025-26 (same as to bag Mr. Taylor

attempted to hide in yard).

Finally, Mr. Kyle argues that a number of the out-of-jurisdiction decisions

discussed above are inconsistent with the law of this jurisdiction, because in this

jurisdiction abandonment “hinges on the outcome of a factual inquiry into intent.”

Spriggs, 618 A.2d at 703 (internal quotation marks omitted). As we have previously

explained, however, the defendant’s intent is only half of the inquiry, and a

defendant’s subjective expectation of privacy must also be objectively reasonable.

E.g., Spriggs, 618 A.2d at 703 n.3; Boswell, 347 A.2d at 274. The out-of-jurisdiction

decisions discussed above, which deny relief on the ground that a defendant lacked

an objectively reasonable expectation of privacy, are thus entirely consistent with

the law of this jurisdiction.

22

IV.

For the foregoing reasons, we conclude that Mr. Kyle clearly lacked an

objectively reasonable expectation of privacy in his backpack after throwing the

backpack into a yard that was not his own, while being chased by police officers.

The trial court ruled in the alternative that, even if Mr. Kyle had abandoned the

backpack, the evidence recovered from the backpack should be suppressed because

the police lacked both a warrant and adequate grounds to seize and search the

backpack. We agree with the parties, however, that a party who lacks an objectively

reasonable expectation of privacy in an item is not entitled to suppression of

evidence obtained as a result of the seizure and search of the item. See, e.g., Brown,

97 A.3d at 97 (determination that Mr. Brown lacked reasonable expectation of

privacy “forecloses [Mr. Brown’s] motion to suppress”).

In sum, we reverse the order of the Superior Court granting Mr. Kyle’s motion

to suppress, and we remand the case for further proceedings.

So ordered.