United States v. Cody Nowak

Filing

PER CURIAM OPINION FILED - THE COURT: Bobby E. Shepherd, C. Arlen Beam and Jane Kelly (UNPUBLISHED) [4413827] [15-2576]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2576
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Cody Allen Nowak
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: February 12, 2016
Filed: June 17, 2016
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Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
Cody Allen Nowak was convicted of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The district court1 denied his motion to

1

The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota, adopting the report and recommendations of the Honorable
Veronica L. Duffy, United States Magistrate Judge for the District of South Dakota.

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suppress. After entering a conditional plea of guilty, Nowak was sentenced to 27
months’ imprisonment and 2 years of supervised release. Nowak appeals the denial
of his motion to suppress, alleging that police officers violated his Fourth
Amendment rights by searching his backpack without a warrant. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and finding no error, we affirm.
I. Background
On August 7, 2014, Nowak asked his friend Harry Madsen for a ride. Nowak
got into the front passenger seat of Madsen’s car and placed his backpack on the floor
in front of him. Shortly thereafter, Madsen was pulled over by Officer Scott Vander
Velde with the Sioux Falls, South Dakota, Police Department, because his license
plate tags were expired. When Nowak got out of the car, Officer Vander Velde
recognized him and told him to get back into the car. Nowak did so. But when
Vander Velde returned to his patrol car to contact dispatch, Nowak exited the car a
second time and ran from the scene.
Officer Vander Velde did not pursue Nowak. Instead, he spoke to Madsen,
who gave Officer Vander Velde permission to search the car. Officer Vander Velde
found Nowak’s backpack on the floor in front of the passenger seat. Vander Velde
asked Madsen if the backpack was Nowak’s. Madsen said “yea[h], that was his
backpack,” and “[t]hat’s not mine.”
Two other officers canvassed the area looking for Nowak, but did not find him.
Nowak did not return to the scene during the approximately twenty-four minute
traffic stop. Inside the backpack, Vander Velde found a Hi-Point .45 caliber handgun
wrapped in a bandana.
Nowak moved to suppress evidence of the firearm, alleging that the warrantless
search of his backpack was a violation of his Fourth Amendment right to be free of

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unreasonable searches and seizures. At the suppression hearing, Officer Vander
Velde testified, and the government offered an audio recording of the traffic stop.
The district court adopted the magistrate judge’s recommendation that the motion be
denied, finding that Nowak had abandoned the backpack and thus had no privacy
interest in its contents. Nowak timely appealed.
II. Discussion
Nowak alleges the district court erred in denying his motion to suppress,
because he did not abandon the backpack and because any consent Madsen gave to
the officers did not extend to his backpack. When considering the denial of a motion
to suppress evidence, we review the district court’s findings of fact for clear error,
and the ultimate determination of whether a Fourth Amendment violation occurred
de novo. United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015) (quoting
United States v. Stephenson, 924 F.2d 753, 758 (8th Cir. 1991)).
“We take up the abandonment issue first because our resolution of the question
could make it unnecessary for us to decide the other issues on appeal.” United States
v. Liu, 180 F.3d 957, 960 (8th Cir. 1999) (citing United States v. Washington, 146
F.3d 536, 537 (8th Cir. 1998)). To prevail on his motion to suppress evidence of the
gun, Nowak must show that he had a reasonable expectation of privacy in his
backpack. United States v. Hayes, 120 F.3d 739, 743 (8th Cir. 1997). The Fourth
Amendment is not implicated by a search of property that has been abandoned
because a defendant who has abandoned his property “‘has relinquished h[is]
reasonable expectation of privacy.’” United States v. James, 534 F.3d 868, 873 (8th
Cir. 2008) (alteration in original) (quoting United States v. Tugwell, 125 F.3d 600,
602 (8th Cir. 1997)).
Whether property has been abandoned “is determined on the basis of the
objective facts available to the investigating officers, not on the basis of the owner’s
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subjective intent.” Id.; see also United States v. Basinski, 226 F.3d 829, 836–37 (7th
Cir. 2000) (“[I]t does not matter whether the defendant harbors a desire to later
reclaim an item”). We consider the dual factors of whether the defendant physically
relinquished his property and whether he denied ownership of it. United States v.
Simpson, 439 F.3d 490, 494 (8th Cir. 2006). However, a verbal denial of ownership
is not necessary for a finding of abandonment, and we reach our ultimate conclusion
based on the totality of the circumstances. See id.; Liu, 180 F.3d at 960 (citing
California v. Hodari D., 499 U.S. 621, 624 (1991)).
Nowak did not deny ownership of the backpack but he physically relinquished
it when he fled the scene of the traffic stop, leaving the backpack behind in the car.
Nowak attempts to neutralize his flight by arguing that because he did not leave the
backpack in a public place, he did not abandon it. Nowak cites to Basinski in support
of his argument that property left in a private, as opposed to a public, place has not
been abandoned. But in Basinski, the owner of a briefcase gave it to his friend for
safekeeping and then explicitly instructed the friend to destroy it. Basinski, 226 F.3d
at 832, 837–38. Nowak left his backpack in Madsen’s car, but unlike Basinski, he did
nothing to “demonstrate[] a strong desire to preserve both his possessory and privacy
interests.” Basinski, 226 F.3d at 837.
“[A] person does not abandon his property merely because he gives it to
someone else to store” or keep watch over. United States v. James, 353 F.3d 606, 616
(8th Cir. 2003) (citing Basinski, 226 F.3d at 837). “[W]e have held that specific
instructions from the owner to destroy private materials are ‘the ultimate
manifestation of privacy, not abandonment.’” United States v. Thomas, 451 F.3d
543, 546 (8th Cir. 2006) (quoting James, 353 F.3d at 616). But Nowak gave no such
instruction to Madsen here. Nor did he ask Madsen to store or safeguard the
backpack for him. Indeed, he said nothing at all to Madsen when he ran from the car,
leaving the backpack behind and leaving Madsen “amazed” at Nowak’s flight.

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Madsen told the officers he did not even know why Nowak had wanted a ride in the
first place.
In this case, there is simply no evidence that Nowak gave any indication –
verbal or otherwise – that he intended for Madsen (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.
Instead, the evidence in this case showed the contrary: When expressly directed by
a law enforcement officer to remain in the car, Nowak got out of the car, ran from the
scene, and left his belongings behind. The objective facts available to the officers
support the finding that Nowak abandoned his backpack.
Whether property is discarded in a public, private, or semi-private place is a
factor in considering whether the property has been abandoned, but it is not
dispositive. See Katz v. United States, 389 U.S. 347, 351–52 (1967) (“What a person
knowingly exposes to the public, even in his own home or office, is not a subject of
Fourth Amendment protection. . . . But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected” (citations
omitted)). Based on the evidence presented, the district court did not err in
concluding that Nowak abandoned his backpack and relinquished any reasonable
expectation of privacy in it.2
The decision of the district court is affirmed.
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2

Because we have concluded that Nowak abandoned the backpack, we need not
address whether Madsen’s consent to search the car extended to the backpack.
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