Abandonment: Exception or Prerequisite?

Updated: Dec 13, 2018

A few posts ago, we discussed the abandonment doctrine as it applied to cell phones. This led to the question of whether or not the abandonment principle is an exception to the Fourth Amendment or a prerequisite? And why does it matter?


Under abandonment, the individual is found to not have an expectation of privacy:

“Abandoned property,” however, “has no protection from either the search or seizure provisions of the Fourth Amendment.” Under a standard abandonment analysis, “the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy.” As the Fourth Circuit has described it, “When a person voluntarily abandons his privacy interest in property, his subjective expectation of privacy becomes unreasonable....”
State v. Brown, 423 S.C. 519, 522–23 (2018) (citations omitted).

The court in Brown held that abandonment is an exception to the warrant requirement citing State v. Dupree (“We have recognized the doctrine of abandonment as an exception to the Fourth Amendment warrant requirement. State v. Dupree, 319 S.C. 454, 457 (1995).” State v. Brown, 423 S.C. 519, 528 (2018)).


The court in Dupree held that abandonment is an exception to the warrant requirement citing State v. Fernandez (“We have also recognized the doctrine of abandonment as an exception to the Fourth Amendment warrant requirement. Fernandez v. State, 306 S.C. 264 (1991).” State v. Dupree, 319 S.C. 454, 457 (1995).


However, this is what Fernandez said about abandonment and the Fourth Amendment:

“It follows that evidence abandoned by the defendant before he was seized by the police cannot be the basis for a violation of the Fourth Amendment's prohibition against unreasonable search and seizure.”
Fernandez v. State, 306 S.C. 264, 266 (1991).

Because an expectation of privacy is a prerequisite to any Fourth Amendment protections, it doesn’t seem to follow that it would be considered an exception. This could be a distinction without a difference.


However, the two tests differ in who carries the burden:

“As an initial matter, the parties dispute who had the burden of proving the alleged illegality of the police officers' actions here. Each party has the burden to prove separate things during the motion to suppress. The State bears the burden to demonstrate that it was entitled to conduct the search or seizure under an exception to the Fourth Amendment's warrant requirement. The State also bears the burden to show that the warrantless entry was limited in scope and duration in accordance with the exigent circumstances which required its presence. However, the criminal defendant retains the burden to establish that he is asserting his own Fourth Amendment rights, rather than vicariously asserting the rights of others; therefore, the defendant bears the burden to demonstrate that he had an actual and reasonable expectation of privacy in the place illegally searched. Here, assuming arguendo that the police officers committed a Fourth Amendment violation when they entered the porch of Apartment 122 without a warrant, the burden rests with Petitioner to establish that he had a reasonable expectation of privacy in the porch of Apartment 122.”
State v. Robinson, 410 S.C. 519, 530 (2014).
In any Fourth Amendment challenge, “defendants must show that they have a legitimate expectation of privacy in the place searched.”
State v. Brown, 423 S.C. 519, 523 (2018).

So the question remains: is abandonment an exception to the rule or a prerequisite to the rule?

© 2020 by Everyday Evidence

Daniel@everydayevidence.og

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