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 court
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.
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 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.
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.
"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."
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 subjective intent."
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
"[A] person does not abandon his property merely because he gives it to someone else to store" or keep watch over.
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.
The decision of the district court is affirmed.