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Abandonment of Items Associated with the Person

NCJ Number
FBI Law Enforcement Bulletin Volume: 76 Issue: 8 Dated: August 2007 Pages: 23-32
Jayme W. Holcomb J.D., Ed.D.
Date Published
August 2007
10 pages
This article explores the legal issues associated with items "abandoned" from an individual's immediate person, since this is a pertinent issue in determining the legality of the warrantless collection of incriminating, supposedly "abandoned" items.
The fourth amendment gives individuals the right to be secure against unreasonable searches and seizures regarding items on their person, in their homes, private papers, and personal effects. Warrants for searches and seizures of such items are required based upon the establishment of probable cause that a crime has been committed; however, a person has no privacy or possessory interest in property that is "abandoned," which means it can be seized and used as evidence without a search warrant. This article identifies and examines factors considered by courts in determining the status of an item as "abandoned." The two factors the courts consider to be most significant are disclaimers of ownership by the party of interest and the intentional physical discarding of the property. The conditions under which these factors do and do not constitute "abandonment" are described. Attention is given to the U.S. Supreme Court's requirement that the abandonment of an item must be voluntary before it can obtain the legal status of being abandoned. If an individual abandons an item of property as a result of improper police conduct, it is likely that the item will be excluded from evidence in a suppression hearing. In such cases, the court will analyze the behavior of the police in order to determine whether a fourth-amendment violation occurred prior to the abandonment of the item. Another circumstance examined is when defendants may argue that they attempted to re-establish possession of abandoned items. Such arguments are usually unsuccessful without clear evidence of efforts to reestablish personal possession. 58 notes