The federal appeals court based in Colorado agreed with prosecutors earlier this month that a shooting suspect effectively abandoned ownership of his backpack, which permitted police to search it and uncover an illegally possessed handgun inside.

The Fourth Amendment protects people from unreasonable searches and seizures wherever they have a reasonable expectation of privacy. The U.S. Courts of Appeals for the 10th Circuit has previously explained that a person loses their expectation of privacy in an object when they clearly deny it is theirs.

Consequently, after Aaron Lee Porter responded to a Denver detective’s question about his backpack by saying, “I don’t have a backpack,” there was no Fourth Amendment violation when the detective opened the bag without a warrant and found evidence of a crime.

“Because Mr. Porter abandoned the backpack and thus surrendered an expectation of privacy therein, the subsequent search was reasonable,” wrote Senior Judge Paul J. Kelly Jr. in the opinion of a three-judge panel for the 10th Circuit.

The appeal revolved around the precise meaning of Porter’s statement and whether he had actually abandoned his bag to be searched.

In July 2020, Porter was involved in a gang shooting near Martin Luther King Jr. Blvd. and Colorado Blvd. He fired a shot that struck a bystander. Police obtained a warrant for his arrest and officers were told Porter might be in possession of a handgun.

On Aug. 6, law enforcement followed Porter from his home to the warehouse where he worked. Det. Jay Lopez encountered the warehouse manager, explained he had a warrant and arrested Porter without incident. Because Lopez saw Porter walk into the warehouse with a backpack, Lopez asked if there were “any personal belongings there at the job site that (Porter) wanted to bring with him.”

Porter replied that he “didn’t have any personal belongings,” the detective later testified.

“What about the backpack I watched you walk in with?” Lopez pressed. Porter answered, “I don’t have a backpack.”

After officers took Porter to jail, Lopez asked to go to Porter’s workstation to look at his belongings. Lopez spotted the backpack and one of Porter’s coworkers reluctantly confirmed it belonged to Porter. Lopez asked the warehouse manager if he could take the bag. Yes, the manager responded.

Lopez picked up the backpack, felt something heavy inside and opened it. He saw a handgun. The detective then applied for a search warrant.

State prosecutors charged Porter with attempted murder, for which he pleaded guilty. The federal government indicted him for being a felon in possession of a handgun and ammunition. Porter also pleaded guilty and received a 3.5-year sentence.

Prior to the plea, Porter attempted to suppress evidence of the handgun in his federal case, arguing Lopez’s warrantless search of his backpack was unconstitutional.

U.S. District Court Senior Judge R. Brooke Jackson determined Lopez did not need a warrant to perform the search. Porter said he did not have a backpack, and it was reasonable for Lopez to believe Porter had now abandoned the bag he saw Porter walk in with.

Jackson alternatively found Lopez had reasonable suspicion that a gun was inside, and the evidence would have been discovered anyway.

Porter then appealed, arguing he had not clearly disclaimed his ownership of the backpack. In context, he believed he said something different.

“As Lopez testified, he did not ask Mr. Porter whether any backpack at the warehouse belonged to Mr. Porter, but rather whether Mr. Porter had a backpack at the warehouse that Mr. Porter wanted taken back to the police station,” wrote Assistant Federal Public Defender Kathleen Shen. “Without taking the broader context of the conversation into account, Mr. Porter’s isolated statement, ‘I don’t have a backpack,’ becomes a disclaimer of ownership of any backpack, anywhere in the world.”

She also disputed the idea that Lopez had reasonable suspicion to believe a gun was in Porter’s backpack at that moment, two weeks after the shooting.

The government rejected that interpretation of Porter’s responses.

“‘I don’t have a backpack’ means ‘I don’t have a backpack’,” Assistant U.S. Attorney Kyle Brenton told the 10th Circuit panel in March. “Now, if what he had really meant to say was, ‘I want to leave my backpack here,’ he could have said that.”

The 10th Circuit agreed with the prosecution that Porter clearly communicated he had abandoned the bag, meaning the Fourth Amendment did not prohibit Lopez’s warrantless search.

It is “hard to imagine a statement plainer than ‘I don’t have a backpack.’ The statement is clearer still when viewed in conjunction with the fact that Detective Lopez saw Mr. Porter walk into the job site with a backpack,” wrote Kelly in the May 2 opinion.

The case is United States v. Porter.