       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 13, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-337
                         Lower Tribunal No. 12-293-P
                            ________________


                               Beau Strawder,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


       An Appeal from the Circuit Court for Monroe County, William R. Ptomey,
Jr., Judge.

     Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for appellee.


Before SUAREZ, C.J., and SHEPHERD and SCALES, JJ.

      SCALES, J.
      Appellant Beau Strawder appeals the trial court’s denial of his motion to

suppress evidence that contributed to Strawder’s convictions, in separate jury

trials, of (i) possession of a firearm by a convicted felon, and (ii) possession of

cocaine. We agree with the trial court that Strawder had no objectively reasonable

expectation of privacy in the contents of a black box that Strawder placed in a

garbage can. Therefore, we affirm.

      I. Facts

      Strawder and a companion were in a home in Plantation Key, Monroe

County, when a fire broke out in an RV that was parked on the lawn of a

neighboring house.

      A police officer, responding to the fire, entered the home (with the consent

of the homeowner), and advised Strawder and his companion that the fire could

spread and they should evacuate for their own safety. At the time, Strawder was

holding what appeared to the officer to be a black box.

      Strawder and his companion left the home. Shortly thereafter, the police

received a call reporting two males acting suspiciously in the neighborhood where

the fire was occurring. The caller said that one of the men placed an item in a

garbage can in front of one of the residences in the neighborhood, and then left the

immediate area.




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      The same police officer who had advised Strawder to evacuate the trailer

observed Strawder and his companion walking on the street and approached them.

At this point, Strawder was no longer in possession of the black box. While the

police officer did not suspect that Strawder and his companion were involved with

setting the fire, the officer asked for and took down identifying information of

Strawder and his companion.

      Following up on the reported suspicious behavior, the police officer and a

second officer looked into a wooden receptacle located several doors down from

the area of the fire. This four-foot by four-foot wooden receptacle housed

residential garbage cans. Inside one of the garbage cans, the officers found the

black box. The officers spoke to the owner of the house where the garbage

receptacle was located, and the owner told the officers that the black box did not

belong to him and that the officers had his permission to retrieve the black box.

      While the officers were photographing the black box, Strawder was

observed walking back and forth in the area, without saying anything to the

officers. After the officers retrieved the black box from the garbage can, Strawder

approached the officers, claimed that the black box belonged to him, and that it

contained cash and jewelry. Strawder told the officers that Strawder had stashed

the black box in the garbage can to prevent it from being damaged by the fire.




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         The police officers, unsure of who owned the black box – as it had been

discarded in a garbage can – then asked Strawder to open the black box in order to

prove ownership.1 When Strawder declined to open the black box, the officers

offered Strawder a property receipt, which Strawder also declined. The officers

told Strawder that Strawder could come to the police station and claim the black

box.

         In the following days, Strawder did not appear at the police station to claim

the black box. The police applied for a search warrant to open the black box, but

their application was denied because the police could not connect the black box to

any crime.

         Five days after retrieving the black box from the residential garbage can, the

police x-rayed the black box.2 The x-ray revealed the outline of a gun. The police

then opened the black box and found a .45 caliber UZI pistol, two .45 caliber high-

capacity magazines, more than three grams of cocaine (both powder and crack),

$1251 in cash, Strawder’s ID, and some other personal items.

         The police arrested Strawder. He was charged with possession of a firearm

by a convicted felon and possession of cocaine. Strawder moved to suppress the

contents of the black box. After conducting an extensive evidentiary hearing on

1The officer testified that he was unable to verify that this black box was the same
black box that Strawder carried out of the home while being evacuated.
2   The black box turned out to be a small safe.

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Strawder’s motion to suppress, the trial court denied Strawder’s motion. The trial

court concluded that Strawder had abandoned the black box and did not have a

reasonable expectation of privacy in the black box’s contents. Strawder was

subsequently convicted in two, separate jury trials.

      Strawder appeals his convictions, citing as error the trial court’s denial of his

motion to suppress the contents of the black box.

      II. Standard of Review

      A motion to suppress evidence generally involves a mixed question of fact

and law. The trial court’s factual determinations will not be disturbed if they are

supported by competent substantial evidence, while the constitutional issues are

reviewed de novo. Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006).

      III. Analysis

      In asserting that the trial court reversibly erred by denying his motion to

suppress, Strawder argues that the police’s warrantless search of the black box

violated the Fourth Amendment’s prohibition against unreasonable searches and

seizures. The State responds by asserting that Strawder abandoned the black box

when he placed it into a garbage can.

      The issue in this case is not whether Strawder actually “abandoned” the

black box, as this term is commonly understood in property law; but rather,

whether Strawder – after placing the black box in a garbage can on another



                                          5
person’s property – abandoned a reasonable expectation of privacy in the black

box’s contents? J.W. v. State, 95 So. 3d 372, 375 (Fla. 3d DCA 2012). In

determining whether a defendant’s expectation of privacy is reasonable, courts

employ an objective standard. California v. Greenwood, 486 U.S. 35 (1988).

      In California v. Greenwood, the United States Supreme Court held that law

enforcement personnel, in a search for evidence of illegal drugs, need not obtain a

warrant to examine the contents of garbage bags placed on the street for trash

collection because a defendant has no reasonable expectation of privacy in the

contents of such garbage bags. By making one’s garbage readily accessible to the

public, one does not retain a privacy interest in its contents. Id. at 40.

      In light of Greenwood and its progeny, even if we accept that Strawder was

trying to protect his black box from being destroyed in the fire (and, therefore,

intending to retain it as his property), when Strawder placed the black box into

someone else’s garbage can, from an objective perspective Strawder abandoned

any reasonable expectation of privacy in the black box’s contents by choosing the

garbage can of a neighbor as the black box’s refuge.

      Understandably, Strawder urges us to examine and evaluate Strawder’s

subjective intent in discarding the safe, and apply the traditional notion of

abandonment as used in property law. Indeed, under the facts of this case, it would

be difficult to conclude that Strawder had abandoned the black box so that



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Strawder’s ownership claim would be inferior to another person who might have

found the black box. As we have recently stated, however, abandonment under

property law is fundamentally different from abandonment for Fourth Amendment

purposes. J.W., 95 So. 3d at 375.

      We examine two components of an abandonment in a Fourth Amendment

context: (1) whether the defendant voluntarily relinquished or discarded the

property; and (2) whether the property was relinquished or discarded in an area

where the defendant had no claim to privacy. Twilegar v. State, 42 So. 3d 177, 193

(Fla. 2010); State v. Lampley, 817 So. 2d 989, 991 (Fla. 4th DCA 2002); State v.

Milligan, 411 So. 2d 946, 947 (Fla. 4th DCA 1982).

      When, as here, a person voluntarily places an item into someone else’s

garbage can, and then leaves the immediate vicinity of the garbage can – even if

only for a few minutes – that person can reasonably expect a variety of possible

occurrences, none of which are consistent with protecting Fourth Amendment

privacy interests. For example, the contents of the garbage can might be collected

by the trash hauler; the garbage might be rummaged by animals; or the item itself

might be taken by scavengers or children or the puzzled owner of the garbage can.

      IV. Conclusion

      We agree with the trial court that when Strawder placed his black box in a

garbage can on another person’s property, and then left the immediate vicinity of



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the garbage can, Strawder abandoned any reasonable expectation of privacy in the

contents of the black box, so that no constitutional violation occurred when the

police officers conducted a warrantless search of the black box’s contents.

      The trial court was correct to deny Strawder’s motion to suppress evidence.

      Affirmed.




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