Abandonment, Search Pursuant to Arrest Save Gun Conviction

US v. Ferebee: Ferebee was at the home of a friend who was on probation when officers arrived to perform a warrantless search. Ferebee was sitting on a sofa, smoking marijuana, against which a black backpack was resting. He stood up, “picked up the backpack with his left hand, and held it out as another officer” patted him down (finding nothing). When asked if there were any weapons in the bag, Ferebee “stated that the bag was not actually his.” Ferebee was arrested for marijuana possession and taken outside while another officer searched the backpack, in which they found a gun. Ferebee later gave a statement where he said that the backpack, and the gun, were his. He unsuccessfully moved to suppress the gun, then entered a conditional guilty plea to one count of being a felon in possession of a firearm.

A divided Fourth Circuit affirmed the dismissal of Ferebee’s motion to suppress. First, the court agreed with the district court that Ferebee had no “standing” to challenge the search of the bag because he said that it wasn’t his. Specifically, the court rejected Ferebee’s attempt to utilize the collective knowledge doctrine, holding that it did not matter that the officer who searched the bag was not the one to whom Ferebee said the bag was not his. That is because the issue of abandonment of property “focuses solely on the intent of the defendant,” while “the collective-knowledge doctrine focuses solely on the knowledge of the police officers.” Here the “abandonment was complete when Ferebee told [the first officer[ that the backpack was not his.” The court also held that the district court’s conclusion that Ferebee had abandoned the backpack was not clearly erroneous. Second, the court held that even if Ferebee had standing the search was proper as done incident to a lawful arrest. Even though Ferebee was handcuffed and outside the house when the backpack was searched inside, the court concluded that there was “no impediment to Ferebee’s movement beyond the handcuffs” and it was “clear from the video” that he was “only a few feet outside the house and thus could reach the other officers and the backpack within seconds.”

Judge Floyd dissented, arguing that Ferebee did not abandon the bag and that the search-incident-to-arrest exception did not apply. In particular, he argued that while the facts surrounding the abandonment question were reviewed for clear error, “whether those findings amount abandonment as a matter of law” should be reviewed de novo.