By Holcomb, Jayme W.
The FBI Law Enforcement Bulletin , Vol. 76, No. 8
A bandoned is defined in the dictionary as "given up; forsaken; deserted." (1) While seemingly simple to define, the term can become the focus of complicated legal meaning and analysis within particular contexts. Law enforcement officers may be lulled into a false sense of security in their understanding of the meaning of the term abandoned property within the Fourth Amendment context because of the simplicity of the dictionary definition of the word.
The U.S. Supreme Court has, on a number of occasions, explored the nuances of the term abandoned in cases involving the disposal of trash, (2) the expiration of hotel room leases, (3) and the discarding of items by individuals. (4) This article explores the legal issues associated with items abandoned from an individual's immediate person. (5) More specifically, the article addresses the Fourth Amendment test used by courts to determine abandonment, the factors courts will consider in assessing whether an item is abandoned, the consequences of improper police conduct that causes a person to abandon an item, and attempts to reclaim abandoned items.
REASONABLE EXPECTATION OF PRIVACY
The Fourth Amendment states that "[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." (6) While some courts consider whether an individual has abandoned an item in terms of standing, (7) courts generally analyze the issue as a Fourth Amendment question. (8) While an abandoned item could be searched, seized, or both, the more complicated cases involve situations where law enforcement officers have searched an item they believe has been abandoned.
The U.S. Supreme Court previously has stated the following with regard to searches and seizures: "A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." (9) A person has no privacy or possessory interest in property that is abandoned. Accordingly, the protections afforded by the Fourth Amendment are not triggered with abandoned property. Therefore, law enforcement officers do not need a search warrant or probable cause to search an abandoned item.
The government has the burden of proving abandonment. (10) The abandonment of property is not abandonment within the meaning that the term may have in property law. (11) The important question in the Fourth Amendment analysis, and the test used by the courts, is whether the individual retained a reasonable expectation of privacy in the item. (12) Courts most frequently describe the expectation of privacy as "a question of intent which may be inferred from words, acts, and other objective facts." (13) Courts also have described the analysis of factors used to determine whether an individual intended to abandon an item of property at the time of the search or seizure as a consideration of the totality of the circumstances. (14)
FACTORS COURTS WILL CONSIDER
Factors considered by courts in determining whether an individual intended to abandon an item can vary. However, the two factors considered most significant by the courts are disclaimers and the physical relinquishment of property. (15)
Disclaimers are one of the most frequent occurrences in abandonment-of-item cases. Disclaimers are most commonly demonstrated by what an individual says, such as "I've never seen that bag before in my life" or "That's not my bag, I don't care what you do with it." (16) However, disclaimers also can be established by a combination of verbal statements and nonverbal conduct, such as disclaiming an item and walking away from officers (17) or walking away from a location with officers and leaving a bag behind. …