The 4th: Abandonment

Abandonment is considered an exception to the warrant requirement. However, the S.C. Supreme Court has held that an abandonment analysis is determined under the expectation of privacy test.[1]


Thus, if an object is abandoned, then the individual had no expectation of privacy. It seems to make more sense that abandonment should not be considered an exception to the Fourth Amendment requirements, but rather a prerequisite to determine if the Fourth Amendment even applies.


This could be a distinction without a difference, however, the burden of proof is different between an exception analysis and an expectation of privacy analysis.




Case Law

“In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment. In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein.”

State v. Dupree, 319 S.C. 454, 457 (1995).


Burden of Proof

“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).


“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) (citations omitted).






[1] State v. Brown, 423 S.C. 519, 526 (2018).

© 2020 by Everyday Evidence

Daniel@everydayevidence.og

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