United States v. Ramirez

82 F.4th 384

UNITED STATES of America, Plaintiff—Appellee, v. Albert Ramos RAMIREZ, Jr., Defendant—Appellant.

No. 22-50042

United States Court of Appeals, Fifth Circuit

FILED September 19, 2023

Appeal from the United States District Court for the Western District of Texas, USDC No. 5:20-CR-334-1, Jason Kenneth Pulliam, U.S. District Judge

Joseph H. Gay, Jr., Richard Louis Durbin, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff—Appellee.

Kristin L. Davidson, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant—Appellant.

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 Judges Jones, Smith, Ho, Duncan, Oldham, and Wilson), and nine judges voted against rehearing (Judges Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Engelhardt, and Douglas).

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, 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.

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Seemingly oblivious to the consequences of these holdings, the Attorney General did not bother to petition for en banc or even panel 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. 2023), vacated for reh'g en banc, 81 F.4th 460, 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.

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Let me dwell at some length on that...