                                                                FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                                           January 3, 2017
                                PUBLISH                  Elisabeth A. Shumaker
                                                             Clerk of Court
                UNITED STATES COURT OF APPEALS

                             TENTH CIRCUIT



UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                               No. 15-3323

NICOLAS P. JUSZCZYK,

      Defendant-Appellant.
                  _________________________________

              Appeal from the United States District Court
                       for the District of Kansas
                   (D.C. No. 2:13-CR-20120-CM-1)
                  _________________________________

Submitted on the briefs. *

Melody Brannon, Federal Public Defender, Thomas W. Bartee, Assistant
Federal Public Defender, and Daniel T. Hansmeier, Appellate Chief,
Kansas Federal Public Defender, Kansas City, Kansas, for Defendant-
Appellant.

Thomas E. Beall, Acting United States Attorney, Jared S. Maag, Assistant
United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff-
Appellee.

                     _________________________________


*
      After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). The case is therefore ordered submitted without oral
argument.
Before L U C E R O , M c K A Y , and B A C H A R A C H , Circuit Judges.
                      _________________________________

B A C H A R A C H , Circuit Judge.
                       _________________________________

      The Fourth Amendment does not prohibit a search of property that

has been “abandoned.” United States v. Ruiz, 664 F.3d 833, 841 (10th Cir.

2012). The property at issue here is a backpack owned by Mr. Nicolas

Juszczyk, who was repairing his motorcycle in the backyard of Ms. Tina

Giger. A concerned neighbor contacted police, who came to investigate.

When they did, Mr. Juszczyk threw the backpack onto Ms. Giger’s roof,

where the backpack was later retrieved by police and searched. Inside was

methamphetamine, a firearm, and documents bearing Mr. Juszczyk’s

name. We must determine: Did Mr. Juszczyk lack an objectively

reasonable expectation of privacy after throwing his backpack onto Ms.

Giger’s roof? We conclude that any expectation of privacy was not

objectively reasonable; as a result, Mr. Juszczyk abandoned the backpack

and the search was lawful.

1.    Standard of Review

      Mr. Juszczyk moved to suppress evidence found during the search,

but the district court denied the motion. We review this ruling de novo.

See United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997)



                                         2
(stating that we engage in de novo review of the district court’s

determination on the objective element of abandonment).

      In applying de novo review, we view the evidence in the light most

favorable to the ruling and review the district court’s factual findings

under the clear-error standard. See United States v. Morgan, 936 F.2d

1561, 1570 (10th Cir. 1991) (viewing the evidence in a light favorable to

the ruling); United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012)

(reviewing factual findings under the clear-error standard). 1

2.    In applying this standard of review, we conclude that Mr.
      J u s zc zy k a b a n d o n e d t h e b a c k p a c k .

      Under this standard of review, we conclude that Mr. Juszczyk

abandoned his backpack.



1
      Our case law provides conflicting signals on the standard of review.
See United States v. Garzon, 119 F.3d 1446, 1453 (10th Cir. 1997)
(Porfilio, J., dissenting). We have sometimes treated abandonment as a
factual matter, limiting our review under the clear-error standard. United
States v. Austin, 66 F.3d 1115, 1118 (10th Cir. 1995); United States v.
Hernandez, 7 F.3d 944, 947 (10th Cir. 1993); United States v. Trimble,
986 F.2d 394, 399 (10th Cir. 1993); United States v. Jones, 707 F.2d 1169,
1172 (10th Cir. 1983). Other times, we have treated abandonment as a dual
inquiry, triggering clear-error review for a finding on the individual’s
subjective intent and de novo review on the objective reasonableness of
the individual’s expectation of privacy. United States v. Ojeda-Ramos,
455 F.3d 1178, 1187 (10th Cir. 2006); United States v. Garzon, 119 F.3d
1446, 1449 (10th Cir. 1997). Ordinarily, we resolve intra-circuit conflicts
by giving precedence to the earlier of two conflicting opinions. Haynes v.
Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). In this appeal, however,
we need not resolve this potential intra-circuit conflict because we would
affirm even under de novo review.

                                       3
      Property is considered abandoned if the owner lacks an objectively

reasonable expectation of privacy. United States v. Garzon, 119 F.3d

1446, 1449 (10th Cir. 1997). Abandonment contains subjective and

objective components. Id. Applying these components, a court must find

abandonment if Mr. Juszczyk’s toss onto the roof reflected his intent to

relinquish any right to the backpack or if his expectation of privacy was

no longer objectively reasonable. See id.

      Mr. Juszczyk obviously was trying to conceal the backpack from

police. But did he intend to come back to get it? Even if he did, he would

have lacked an objectively reasonable expectation of privacy after

throwing the backpack onto the roof.

      Ms. Giger testified that she had not allowed Mr. Juszczyk to keep

anything on the roof. He was allowed to use her backyard to fix his

motorcycle; he had no permission to keep his belongings on the roof.

Thus, Mr. Juszczyk would need to obtain permission from Ms. Giger to go

onto her roof to retrieve the backpack.

      Viewing the evidence favorably to the ruling, one could justifiably

question why anyone would have expected Ms. Giger to allow Mr.

Juszczyk onto the roof. The two were not close. When confronted by the

police, Mr. Juszczyk did not even know the homeowner’s gender or name.

And Mr. Juszczyk had seen the homeowner only about three times in his


                                       4
life. If Mr. Juszczyk would have asked to go onto the roof to retrieve his

backpack, the homeowner would presumably have been suspicious. 2 She

had just had her house searched after giving Mr. Juszczyk permission to

fix his motorcycle in her backyard.

      We addressed a similar situation in United States v. Morgan, 936

F.2d 1561 (10th Cir. 1991). There the defendant threw a bag onto the

porch of a house owned by someone he was accompanying. Nonetheless,

we held that there was an abandonment. “The fact that Mr. Morgan was in

the backyard of someone he knew or was acquainted with, at the time he

threw the bag, is of little significance. The record reveals we do not have

before us a case where the item was left to the care or responsibility of

another, or where there is a delayed indication of an intent to retain an

expectation of privacy in the item.” Morgan, 936 F.2d at 1570-71.

      As Mr. Juszczyk argues in his reply, Morgan differs from our case

because there the defendant had no one who could retrieve the bag; here

Ms. Giger theoretically could have retrieved the backpack for Mr.

Juszczyk. But viewing the evidence in the light most favorable to the

ruling, Mr. Juszczyk could not reasonably expect Ms. Giger to retrieve the




2
     The district court found that Mr. Juszczyk had “failed to show an
ongoing and meaningful connection to [Ms.] Giger’s home.” R. vol. 2, at
179.

                                       5
backpack and keep it for him after he had thrown it onto her roof,

sparking the arrival of police and a search of her house.

      In his reply brief, Mr. Juszczyk argues that Ms. Giger or an

acquaintance, who sometimes stayed with Ms. Giger, could have retrieved

the backpack. That is true. But viewing the evidence in the light most

favorable to the ruling, we conclude that such an expectation would have

been unreasonable. The district court could justifiably infer that Ms.

Giger would not have allowed Mr. Juszczyk to retrieve his backpack after

he had tried to conceal it on her rooftop, leading to a police search of her

house, when Mr. Juszczyk was supposed to be fixing his motorcycle in

the backyard. 3

      In these circumstances, the district court properly concluded that

Mr. Juszczyk had abandoned the backpack. Viewing the evidence in the



3
      In his reply brief, Mr. Juszczyk argues that a neighbor could
retrieve the backpack only by committing a trespass:

      The backpa c k was located on the roof of a private residence. In
      order to retrieve the backpack, a person would have had to enter
      the yard with a ladder and climb the ladder to the roof of the
      home. It is implausible to think that society is prepared to
      recognize such actions as reasonable. Indeed, to do such a thing
      would be to commit a trespass, some thing the law does not
      allow.

Appellant’s Reply Br. at 10-11. Mr. Jusz c z yk would have been in the same
position as a neighbor; both would have had to commit a trespass or to
obtain new consent to go onto the roof to retrieve the backpack.

                                       6
light most favorable to the ruling, we conclude that Mr. Juszczyk did not

retain an objectively reasonable expectation of privacy once he threw the

backpack onto the roof. In these circumstances, the district court

correctly denied Mr. Juszczyk’s motion to suppress.

     Affirmed.




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