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United States v. Ferebee

United States District Court, W.D. North Carolina, Charlotte Division

November 22, 2017



          Max O. Cogburn Jr. United States District Judge.

         Defendant is charged with possession of a firearm on March 23, 2017, by a convicted felon, in violation of 18, United States Code, Section 922(g). In moving to suppress, defendant contends that state law enforcement officers violated his Fourth Amendment protections when they conducted a search of his backpack after he was arrested, handcuffed, and removed from the room where the backpack was located. In response, the government contends that defendant lacks standing to challenge the search as he disclaimed ownership of the bag at the time of arrest and that even if he has standing, the search was lawful as one incident to arrest. Having conducted an evidentiary hearing, reviewed the pleadings submitted by the parties, and considered the exhibits, the Motion to Suppress will be denied for the reasons that follow.


         On March 23, 2017, a number of state law enforcement officers conducted a warrantless search of a state probationer's home. Among the officers were Officer J. D. Bensavage, a North Carolina Probation and Parole Officer, and Detective T. E. Grosse, Charlotte Mecklenburg Police Department, who was also a member of the local ATF Task Force. Upon entering the home of the state probationer, officers smelled the odor of marijuana emanating from the living room, immediately adjacent to the home's front door. Officers observed defendant in possession of a marijuana blunt.

         Three officers included in their police reports that they saw defendant holding a black backpack.[1] Officer Bensavage stated in his report, as follows:

Mr. Ferebee also picked up a black backpack with his left hand as he stood up and held it out to his side as Officer B. Sinnott search his person due to his possession of marijuana. Mr. Ferebee appeared nervous and this Officer asked him if he had any weapons in his bag. He replied this isn't even my bag.

Def. Exh. 1 (#13-1 at 1). At the hearing, Officer Bensavage testified that he saw defendant pick up the bag from the floor, stand, hold it out towards the officers, and disclaim ownership of the bag. He also testified that before defendant picked up the bag, it was located near defendant who was sitting on a loveseat or small sofa.

         A body-cam video was also played at the hearing. While there was no audio, the video briefly shows defendant being led out of the room before the backpack was searched. The evidence presented indicated that the bag was searched in the living room after defendant had been led out the adjacent front door in handcuffs, but that the front door remained open during the search.

         The warrantless search of the backpack revealed a mason jar of marijuana (approximately 11 grams), digital scales, a marijuana grinder, a pistol, and defendant's South Carolina issued identification. Testimony at the hearing indicated that a second firearm was found under the cushion where defendant was sitting. The charge in this case stems from the pistol in the backpack only. Subsequent to the search of the backpack, defendant claimed ownership of the backpack.


         If an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana. United States v. Humphries, 372 F.3d 653, 659 (4th Cir. 2004). Armed with probable cause, the officer may both arrest and search the arrestee. United States v. Day, 591 F.3d 679, 696 (4th Cir. 2010). During a search incident to arrest, law enforcement officers are permitted to search the area within the arrestee's “immediate control, ” or “the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763 (1969).

         Prior to reaching the Fourth Amendment issue, it is defendant's burden to establish that he has standing to challenge the search. Rakas v. Illinois, 439 U.S. 128, 134 (1978). A defendant has standing where he shows that he had a legitimate expectation of privacy in the particular area or item searched. United States v. Davis, 430 F.3d 345, 359-60 (6th Cir. 2005); United States v. Avent, 162 F.3d 1156 (4th Cir. 1998). In considering whether defendant has demonstrated a legitimate expectation of privacy, courts consider: (1) whether the defendant has manifested a subjective expectation of privacy in the particular area searched; and (2) whether society is prepared to recognize this expectation of privacy as objectively reasonable. California v. Greenwood, 486 U.S. 35, 39 (1988).

         It is well established that a person has a reasonable expectation of privacy in backpacks or bags they may be carrying or are within their immediate control, Bond v. United States, 529 U.S. 334, 337 (2000), as such expectation of privacy is well within those society is prepared to recognize. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). The issue here concerns the first Greenwood factor, which is whether defendant “manifested a subjective expectation of privacy” when he stated that it was not his bag and held it out towards the approaching officers. At oral arguments, defendant first called into question the veracity of Officer Bensavage's testimony concerning defendant's disclaimer. Defendant argued that no other officer included defendant's alleged disclaimer in their reports[2] and that counsel would have liked to question other officers, especially Officer Sinnott.[3] The Court found Officer Bensavage's testimony to be most credible based on his demeanor during his testimony. Not only was Officer Bensavage's testimony believable, it was consistent with his statement (#13-1) and the statements of other officers. Indeed, when counsel for the government attempted to elicit testimony from Officer Bensavage consistent with its theory that defendants placed in handcuffs can break out of those restraints, he testified that he had no knowledge of such occurrences. The Court finds that Officer Bensavage testified truthfully and did not embellish his testimony even when given a clear shot at bolstering the search incident to arrest. The credible evidence before this Court is simply that defendant disclaimed ownership of the backpack while extending the backpack in the direction of the approaching officers. Based on the credible testimony presented by Officer Bensavage, the fact that other officers did not include the disclaimer in their reports does not give this court reason to discredit either his report or his sworn testimony.

         Having determined that defendant disclaimed ownership of the backpack and extended the backpack to the approaching officers at the time of arrest, the Court must now consider whether such words and actions were sufficient to amount to abandonment of defendant's privacy interest in the bag. While a defendant can certainly have a legitimate expectation of privacy in a backpack, those legitimate expectations can be abandoned. Abel v. United States, 362 U.S. 217, 241 (1960). Determining whether abandonment has occurred is a fact-intensive inquiry and can be inferred from words, acts, and other objective facts. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (en banc). To make this determination, a court must consider the totality of the circumstances surrounding the search. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas, 439 U.S. at 150-52 (Powell, J., concurring). Indeed, a defendant can abandon his or her expectation of privacy by disclaiming interest and walking away from a ...

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