The right under the Fourth Amendment of the United States Constitution to be secure against unreasonable searches and seizures is based upon an expectation of privacy in a person’s property. If the person abandons his or her property, he or she no longer has an expectation of privacy in the property. The police may conduct a search of the abandoned property and may seize the abandoned property without a warrant.
Expectation of Privacy
The main issue regarding abandoned property is whether a person has voluntarily relinquished his or her interest in the property with no further an expectation of privacy in the property. Abandonment depends upon the person’s intent, that is, whether the person intended to relinquish control of the property. The person’s words and actions determine intent. If the person makes a statement that the property does not belong to him or her, the property is abandoned. If the person leaves the property in a public place, throws the property away, or places the property in a location where it can no longer be retrieved by that the person, the property is abandoned. However, the abandonment must be voluntary and cannot be the result of an act of carelessness or negligence.
When property is abandoned as a result of a person being stopped by the police, whether the property is voluntarily abandoned depends upon whether the conduct of the police is legal or illegal. If the police legally stop the person, the person’s abandonment of the property is voluntary. If the police engage in misconduct and illegally stop the person, the person’s abandonment of the property is involuntary and seizure by the policy may be improper. However, mere pursuit by the police does not constitute a seizure of the person until the person is detained by the police. Abandonment of the property during the pursuit may or may not be voluntary depending upon whether the pursuit was reasonable.
An issue that often arises with abandoned property is whether the fact that the person could have retrieved the property constitutes abandonment of the property. An example of this issue is leaving garbage for collection on a street. It has been argued that until the garbage is collected, the person could have retrieved the garbage and therefore did not abandon the property. The courts have resolved this issue by holding that a person has no reasonable expectation of privacy in the garbage when he or she leaves it for collection on the street and that the property is therefore abandoned.
An automobile left on the side of a road may or may not be abandoned. Factors for determining whether the automobile is abandoned are whether the automobile is left in a dangerous location, whether the automobile is capable of being driven, and whether the keys are in the automobile.
In summary, whether property is abandoned and may be searched by the police without a warrant depends upon the intent of the person in abandoning the property.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.