United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-2576

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Cody Allen Nowak

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the District of South Dakota - Sioux Falls

____________

 Submitted: February 12, 2016

 Filed: June 17, 2016

____________

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

____________

PER CURIAM.

Cody Allen Nowak was convicted of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1). The district court denied his motion to 1

The Honorable Karen E. Schreier, United States DistrictJudge for the District 1

of South Dakota, adopting the report and recommendations of the Honorable

Veronica L. Duffy, United States Magistrate Judge for the District of South Dakota. 
suppress. After entering a conditional plea of guilty, Nowak was sentenced to 27

months’ imprisonment and 2 years of supervised release. Nowak appeals the denial

of his motion to suppress, alleging that police officers violated his Fourth

Amendment rights by searching his backpack without a warrant. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and finding no error, we affirm.

I. Background

On August 7, 2014, Nowak asked his friend Harry Madsen for a ride. Nowak

got into the front passenger seat of Madsen’s car and placed his backpack on the floor

in front of him. Shortly thereafter, Madsen was pulled over by Officer Scott Vander

Velde with the Sioux Falls, South Dakota, Police Department, because his license

plate tags were expired. When Nowak got out of the car, Officer Vander Velde

recognized him and told him to get back into the car. Nowak did so. But when

Vander Velde returned to his patrol car to contact dispatch, Nowak exited the car a

second time and ran from the scene. 

Officer Vander Velde did not pursue Nowak. Instead, he spoke to Madsen,

who gave Officer Vander Velde permission to search the car. Officer Vander Velde

found Nowak’s backpack on the floor in front of the passenger seat. Vander Velde

asked Madsen if the backpack was Nowak’s. Madsen said “yea[h], that was his

backpack,” and “[t]hat’s not mine.” 

Two other officers canvassed the area looking for Nowak, but did not find him. 

Nowak did not return to the scene during the approximately twenty-four minute

traffic stop. Inside the backpack, Vander Velde found a Hi-Point .45 caliber handgun

wrapped in a bandana. 

Nowak moved to suppress evidence ofthe firearm, alleging that the warrantless

search of his backpack was a violation of his Fourth Amendment right to be free of

-2-
unreasonable searches and seizures. At the suppression hearing, Officer Vander

Velde testified, and the government offered an audio recording of the traffic stop. 

The district court adopted the magistrate judge’s recommendation that the motion be

denied, finding that Nowak had abandoned the backpack and thus had no privacy

interest in its contents. Nowak timely appealed. 

II. Discussion

Nowak alleges the district court erred in denying his motion to suppress,

because he did not abandon the backpack and because any consent Madsen gave to

the officers did not extend to his backpack. When considering the denial of a motion

to suppress evidence, we review the district court’s findings of fact for clear error,

and the ultimate determination of whether a Fourth Amendment violation occurred

de novo. United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015) (quoting

United States v. Stephenson, 924 F.2d 753, 758 (8th Cir. 1991)). 

“We take up the abandonment issue first because our resolution of the question

could make it unnecessary for us to decide the other issues on appeal.” United States

v. Liu, 180 F.3d 957, 960 (8th Cir. 1999) (citing United States v. Washington, 146

F.3d 536, 537 (8th Cir. 1998)). To prevail on his motion to suppress evidence of the

gun, Nowak must show that he had a reasonable expectation of privacy in his

backpack. United States v. Hayes, 120 F.3d 739, 743 (8th Cir. 1997). The Fourth

Amendment is not implicated by a search of property that has been abandoned

because a defendant who has abandoned his property “‘has relinquished h[is]

reasonable expectation of privacy.’” United States v. James, 534 F.3d 868, 873 (8th

Cir. 2008) (alteration in original) (quoting United States v. Tugwell, 125 F.3d 600,

602 (8th Cir. 1997)). 

Whether property has been abandoned “is determined on the basis of the

objective facts available to the investigating officers, not on the basis of the owner’s

-3-
subjective intent.” Id.; see also United States v. Basinski, 226 F.3d 829, 836–37 (7th

Cir. 2000) (“[I]t does not matter whether the defendant harbors a desire to later

reclaim an item”). We consider the dual factors of whether the defendant physically

relinquished his property and whether he denied ownership of it. United States v.

Simpson, 439 F.3d 490, 494 (8th Cir. 2006). However, a verbal denial of ownership

is not necessary for a finding of abandonment, and we reach our ultimate conclusion

based on the totality of the circumstances. See id.; Liu, 180 F.3d at 960 (citing

California v. Hodari D., 499 U.S. 621, 624 (1991)).

Nowak did not deny ownership of the backpack but he physically relinquished

it when he fled the scene of the traffic stop, leaving the backpack behind in the car. 

Nowak attempts to neutralize his flight by arguing that because he did not leave the

backpack in a public place, he did not abandon it. Nowak cites to Basinski in support

of his argument that property left in a private, as opposed to a public, place has not

been abandoned. But in Basinski, the owner of a briefcase gave it to his friend for

safekeeping and then explicitly instructed the friend to destroy it. Basinski, 226 F.3d

at 832, 837–38. Nowak left his backpack in Madsen’s car, but unlike Basinski, he did

nothing to “demonstrate[] a strong desire to preserve both his possessory and privacy

interests.” Basinski, 226 F.3d at 837. 

“[A] person does not abandon his property merely because he gives it to

someone else to store” or keep watch over. United States v. James, 353 F.3d 606, 616

(8th Cir. 2003) (citing Basinski, 226 F.3d at 837). “[W]e have held that specific

instructions from the owner to destroy private materials are ‘the ultimate

manifestation of privacy, not abandonment.’” United States v. Thomas, 451 F.3d

543, 546 (8th Cir. 2006) (quoting James, 353 F.3d at 616). But Nowak gave no such

instruction to Madsen here. Nor did he ask Madsen to store or safeguard the

backpack for him. Indeed, he said nothing at all to Madsen when he ran from the car,

leaving the backpack behind and leaving Madsen “amazed” at Nowak’s flight. 

-4-
Madsen told the officers he did not even know why Nowak had wanted a ride in the

first place. 

In this case, there is simply no evidence that Nowak gave any indication –

verbal or otherwise – that he intended for Madsen (or anyone else) to take care or

possession of the backpack in his absence such that his personal belongings would

remain private. Nor do the circumstances lend themselves to such a conclusion. 

Instead, the evidence in this case showed the contrary: When expressly directed by

a law enforcement officer to remain in the car, Nowak got out of the car, ran from the

scene, and left his belongings behind. The objective facts available to the officers

support the finding that Nowak abandoned his backpack. 

Whether property is discarded in a public, private, or semi-private place is a

factor in considering whether the property has been abandoned, but it is not

dispositive. See Katz v. United States, 389 U.S. 347, 351–52 (1967) (“What a person

knowingly exposes to the public, even in his own home or office, is not a subject of

Fourth Amendment protection. . . . But what he seeks to preserve as private, even in

an area accessible to the public, may be constitutionally protected” (citations

omitted)). Based on the evidence presented, the district court did not err in

concluding that Nowak abandoned his backpack and relinquished any reasonable

expectation of privacy in it.2

The decision of the district court is affirmed. 

______________________________

Because we have concluded that Nowak abandoned the backpack, we need not 2

address whether Madsen’s consent to search the car extended to the backpack.

-5-