On 4th Amendment seizures and abandoned property in U.S. v. Pope

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

Every once in a while you need to update the same tired language you have been using in your standard motion templates.  And every once in a while you come across an opinion that provides you with great material to do so:  The language is fresh and clear and provides an excellent description of the current state of the law.  It also allows you to show off a little by demonstrating to the court that you are up-to-date on the latest legal developments.

United States v. Khalil Pope, __ A.3d __ (D.C. 2024) is exactly such a case.  It provides a clearer and improved holding with respect to the definition of a Fourth Amendment seizure.  It also clarifies the extent to which a piece of property can be considered abandoned for purposes of Fourth Amendment protection. 

When is a person seized for Fourth Amendment purposes?

The D.C. Court of Appeal’s decision in Pope clarifies what for me has been a confusing area of Fourth Amendment jurisprudence in the District. 

On the one hand, you have the U.S. Supreme Court decision in California v. Hodari D, 499 U.S. 621 (1991), which holds that a person is not seized for Fourth Amendment purposes until he actually submits to a police officer’s command to stop, and, based on that case, the D.C. Court of Appeals’ even worse decision in Henson v. United States, 55 A.3d 859 (D.C. 2012).  According to Henson, as I complained bitterly at the time it was issued, “a police officer can approach you, accuse you of having committed a crime, grab at you when you refuse a request for a consensual search and start walking away, and then chase after you without any reasonable basis for doing so, all without violating your constitutional rights.”

And, on the other hand, you have the Supreme Court decision in United States v. Mendenhall, 446 U.S. 554 (1980), which holds that the standard for determining whether an individual has been seized depends on whether, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

With both Hodari D and Mendenhall cited in case law, it was hard to reconcile the two seemingly conflicting cases.

Now, finally, we have Pope.

Without even mentioning either Mendenhall or Henson, Pope returns to the Supreme Court’s seminal opinion in Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968), holding that a Fourth Amendment seizure occurs “when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” 

Pope also quotes the Supreme Court’s more recent opinion in Torres v. Madrid, 592 U.S. 306, 325 (2021), which seems to directly contradict both Hodari D. and Henson:  “[T]he application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.” 

In other words, the decision seems to directly overturn the court’s decision in Henson.

When is a piece of property considered abandoned for purposes of Fourth Amendment protection?

Chased by police into a private residence “with which he had a personal connection,” the defendant in Pope attempted to hide his backpack under the staircase to the basement.

Government conduct is a “search” within the meaning of the Fourth Amendment if it invades an actual expectation of privacy and that expectation of privacy is one that society is prepared recognize as reasonable.  But that “interest can be abandoned, and by doing so, an individual loses the protection of the Fourth Amendment.” 

The government bears the burden of proving abandonment by “clear, unequivocal and decisive evidence.”

The government argued that, in this case, the tossing of the backpack under the staircase constituted such an abandonment.  The implication was that by tossing the backpack, the defendant intended to simply rid himself of it. 

The court did not agree.  Referencing the trial court’s finding that the defendant “took steps to secrete the backpack,” thereby hiding it, the court noted that “[h]iding an object is the quintessential attempt to protect its privacy, by making it difficult for others to see or take possession of it.” 

The court concluded that the defendant “hid his closed backpack in a storage area in a private home.” Specifically, it held that “Mr. Pope held on to his backpack in full view of the pursuing officers, ran into the house, and deliberately hid his backpack in the basement , where he knew his flight would come to an end.  Unlike the cases cited [by the government], Mr. Pope’s actions clearly evince his intention to maintain a privacy interest in his backpack.”

Frederick Iverson represented Mr. Pope at trial and the Public Defender Service represented him on appeal.  Judge Michael O’Keefe presided at trial.