United States Court of Appeals

for the Fifth Circuit ____________

No. 22-50042

____________

United States of America, 

Plaintiff—Appellee,

versus

Albert Ramos Ramirez, Jr., 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:20-CR-334-1

______________________________

Before Dennis, Elrod, and Ho, Circuit Judges.

Per Curiam:

The court having been polled at the request of one of its members, and 

a majority of the judges who are in regular active service and not disqualified 

not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), on the 

Court’s own motion, rehearing en banc is DENIED.

In the en banc poll, seven judges voted in favor of rehearing (Chief 

Judge Richman and JudgesJones, Smith, Ho, Duncan, Oldham, and Wilson), 

and nine judges voted against rehearing (Judges Stewart, Elrod, Southwick, 

Haynes, Graves, Higginson, Willett, Engelhardt, and Douglas). 

United States Court of Appeals

Fifth Circuit

FILED

September 19, 2023

Lyle W. Cayce

Clerk

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No. 22-50042

2

Jerry E. Smith, Circuit Judge, dissenting from the denial of rehearing 

en banc:

The panel majority opinion is serious error, and this matter is easily 

enbancworthy. I respectfully dissent from the decision not to grant en banc 

rehearing.

The panel should have affirmed the conviction. There are at least two 

major flaws on the merits: 

The first is the majority’s errant conclusion that Ramirez did not 

abandon his jacket. A person abandons property when he tosses it into the 

trash or, as here, discards it onto a trash receptacle. That point is forcefully 

made in Judge Ho’s cogent panel dissent, 67 F.4th 693, 700–02 (5th Cir. 

2023), explaining in particular that “there’s no Fourth Amendment protection for garbage left on private property in a manner reasonably accessible to 

the public,” id. at 701. 

I cannot improve on Judge Ho’s concise explanation and therefore

won’t try to restate it. The panel majority mutilates existing law by failing to 

recognize that, as a suspect, Ramirez had no expectation of privacy once he 

had tossed his jacket over a fence onto a trash container in plain view of the 

apprehending officer. The district court correctly denied the motion to 

suppress.

But that’s not the majority’s only salient error. The majority was frustrated that Ramirez had no keys to his mother’s house or gate and did not 

sleep there.1

 Desperate to establish Ramirez’s expectation of privacy there, 

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1 These are dispositive facts that the majority does not disclose. And the majority 

misleads the reader by saying that “there is no reason to think that Ramirez would not have 

retrieved the jacket before going in for the night.” 67 F.4th at 698 (emphasis added). That 

implication―that Ramirez would grab the jacket and retire for the night at his mother’s 

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the majority purposefully enlarges the definition of property by declaring a 

heretofore unheralded category that it calls “family property.”2 

Not content to recognize Ramirez’s expectation of privacy just at his 

own house (a few blocks from his mother’s), the majority makes the following 

ambitious holding: “Ramirez’s placement of his jacket on family property 

‘excludes the very idea of abandonment.’” 67 F.4th at 699 (quoting Livermore v. White, 74 Me. 452, 455 (1883)). Remarkably, the only source the 

majority can claim for that bold pronouncement is a decision of another 

state’s court rendered 140 years ago. One might think that Fourth Amendment jurisprudence has advanced appreciably since the presidency of 

Chester A. Arthur.

Nor does the majority cabin its embrace of the limitless notion of 

“family property.” Does it include (as here) only one’s parent? One’s 

immediate family? Grandparents? In-laws? Aunts, uncles, and cousins? 

One’s betrothed? A significant other? How about an intimate acquaintance? 

A former spouse? The majority does not say.

This uncalled-for holding will predictably be used to open Pandora’s 

Box for miscreants who claim they never abandoned contraband because they 

left or discarded it on or at “family property,” however defined. It is a new 

chapter in Fourth Amendment law, courtesy of the Fifth Circuit. 

* * * * *

Seemingly oblivious to the consequences of these holdings, the 

Attorney General did not bother to petition for en banc or even panel 

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house―is false. Ramirez lived elsewhere with his wife (who was estranged from his mother) 

and did not sleep―regularly or even occasionally―at his mother’s house. 

2 The majority employs the word “mother” or “mother’s” or “family property” 

approximately 21 times.

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rehearing. That is frustrating to this court where, as here, the panel opinion 

is seriously flawed. 

It is no secret that the absence of a petition dissuades multiple judges 

from voting for rehearing even where they disagree with the result or the 

reasoning. But even when the losing side is missing in action, judges are 

sometimes able to identify major flaws that undermine this court’s jurisprudence. Those judges request a sua sponte poll. Most recently, that was successful in a different criminal appeal, United States v. Campos-Ayala, 70 F.4th 

261 (5th Cir. June 7, 2023), vacated for reh’g en banc, 2023 U.S. App. LEXIS 

23220 (5th Cir. Aug. 31, 2023). We can only hope that, having declined to 

support its position in an en banc petition, the government will do so at the 

sua sponte en banc rehearing of that matter.

In the instant case, despite that a judge requested a poll, the court has 

narrowly voted against sua sponte en banc rehearing. As the will of the majority, I respect that decision, which could be the sum of (1) judges who agree 

with the panel majority; (2) judges who aren’t willing to bite the bullet where 

the government seemingly doesn’t care; (3) judges who believe the case is 

not enbancworthy; (4) judges who place weight on the fact that Ramirez is 

nearing the end of his sentence; and (5) judges who note that the opinion is 

now unpublished.

* * * * *

Let me dwell at some length on that last possibility. On May 10, 2023, 

the majority opinion and dissent were issued as a published decision, and in

due course the case was assigned a citation in F.4th, but for more than four 

months the mandate did not issue.3

 Then the panel ordered that the opinion 

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3 This delay caused considerable confusion. The panel opinion had issued on 

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No. 22-50042

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be unpublished, and that unpublished decision―otherwise unchanged―was 

re-issued on September 12, while the en banc poll was still underway.

Highly consequential opinions should not be designated as unpublished4 in an obvious effort to discourage judges from voting in favor of 

en banc rehearing. I complained of this at length in Sambrano v. United Airlines, Inc., 45 F.4th 877, 886 (5th Cir. 2022) (Smith, J., dissenting from the 

denial of rehearing en banc), and won’t enlarge on it now.

* * * * *

The majority opinion is a serious misapplication of Fourth Amendment law. I respectfully dissent from the well-intentioned denial of rehearing 

en banc.

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looked the latter. Unbeknownst to this court, in late June the attorneys, by agreement and 

thinking the case was over, had moved, in the district court, for judgment of dismissal of 

the indictment and Ramirez’s release from custody. The district court complied. Once 

this court became aware of that, it, on August 1, directed the attorneys to explain, suggesting that the district court was without jurisdiction in the absence of a mandate. The 

attorneys and court conscientiously agreed to withdrawal of the orders.

That misstep was forgivable. Especially where no petition for rehearing has been 

filed, the attorneys and the public have no way of knowing why a case is lingering or whether 

the absence of a mandate is intentional or a clerical oversight. A judge may place an 

internal, confidential hold on the mandate (which is never shown on the public docket), 

either with or without a rehearing petition. A matter can linger in seeming inaction for 

weeks or months until the court resolves it either by an en banc poll or the judge’s withdrawal of his or her hold on the mandate. This is all a reflection of the fact that this court 

takes its work seriously and carefully scrutinizes panel opinions, irrespective of whether the 

losing side seeks rehearing. 

4 The decision whether to publish matters because, per Fifth Circuit Rule 47.5.4, 

unpublished opinions are not precedent that binds the district courts and Fifth Circuit 

panels. By designating an opinion as unpublished, a panel can declare the winner it prefers 

without necessarily soiling the jurisprudence for future cases. 

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