John Wiehn
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A scenario straight out of the advanced search and seizure class. Late at night in a high crime area, a group standing around a backpack, and nobody claims it. You open it and find guns, drugs, and somebody’s ID. Why are you allowed to do that, and what is the one extra question that protects the case?
Hey guys, John Wiehn, attorney and senior legal instructor with Blue to Gold Law Enforcement Training, coming to you today with another roadside chat.
Today’s question regards standing and abandonment. The question stems from an example that we use in some of our classes, primarily our advanced search and seizure class.
The example is this. Let’s say it’s late at night, maybe a high crime area. You are walking around, you’re working your beat, and you come across a group of subjects standing around a backpack. So you go up to make that consensual encounter, just to let them know you’re in the area and see if there’s anything that they need.
And so you walk up and you say, hey guys, how’s it going tonight? Oh, sweet backpack. Whose is it? Is it yours? Is it yours? Is it yours? Ah, it’s nobody’s backpack.
You dive in and you find guns, drugs, whatever, and this guy’s ID. And so you arrest him for possession of the narcotics and probably possession of the weapons as well.
Question is, why are you allowed to do that?
Why can you search a backpack that nobody claims?
Well, the Fourth Amendment does not protect abandoned property. There is no constitutionally protected interest in abandoned property.
In order to have standing to contest the reasonableness or unreasonableness of a governmental search, you must have standing. You must have skin in the game. You must have a horse in the race, as the court has previously said repeatedly. You cannot vicariously assert Fourth Amendment rights.
And so in order to have standing to file that motion to suppress, to argue the reasonableness of a governmental search, it has to be your Fourth Amendment rights that are implicated by what the government did.
And so if you have no constitutionally protected interest in that effect that is searched, well then you don’t have a dog in the fight. You don’t get to file that motion to suppress. And so yeah, we are still going to charge you with possession of those items, but you have no standing to contest the reasonableness, to make the argument that that search was unreasonable.
What is the better way to ask the abandonment question?
However, what I will tell you guys is, if you just approach it that way, right, if I walk up, hey, is it yours, is it yours, is it yours, ah, it’s nobody’s, you leave yourself open for a defense attorney attack.
Better approach is this. You walk up, you say, hey guys, how’s it going? Oh, sweet backpack, whose is it? Is it yours? Is it yours? Is it yours? Okay guys, listen, does anybody have anything to do with this bag? Anything at all? No, no, no, nothing. Okay. And then you dive right in.
You are the one who’s going to have to convince the court that there was legitimate abandonment here. And so if you do it that way, say, do you have anything to do with this bag, what you are asking them is if they have any constitutionally protected interest, any vested interest in this bag that the courts will recognize as legitimate as a basis for them to have standing and contest your search. No, nothing. Okay.
What does a defense attorney do if you skip that question?
If you don’t do it this way, if all you do is walk up and say, hey, is it yours, now you leave the door open for a defense attorney to make an argument.
Well, it’s not my client’s, and the officer came up and he asked my client one question, and that was, is this your bag, and my client honestly answered him, no. The officer then just dove right in. Had the officer taken the time to even ask just one more question, of course my client would have immediately told him that it’s not his bag, but it is his brother’s, sister’s, boyfriend’s, girlfriend’s, cousin’s twice removed, whatever, that he is holding for that person. And so he does retain a constitutionally protected interest in that.
The better approach: hey guys, does anybody have anything to do with this bag? No. Well, there you go. Abandonment.
What case law should you know on standing?
Now if you guys are looking for some cases on point, some cases on standing, I highly recommend you check out Rakas v. Illinois, out of the United States Supreme Court. Basically what Rakas said is that if you want to contest the reasonableness of a search, you got to have standing. You can’t vicariously assert those Fourth Amendment rights.
Another case is Byrd. That’s B-y-r-d. We’ll throw a link in the comments below. That’s out of the United States Supreme Court again.
And there is another case that talks about abandoning a duffel bag in the trunk of a car. We’ll throw that link in there too.
Abandonment equals no standing, no legitimate expectation of privacy, no basis to contest the reasonableness of a governmental search.
I hope this helps, guys.
The short version
- “The Fourth Amendment does not protect abandoned property.”
- “You must have skin in the game. You must have a horse in the race.”
- “You cannot vicariously assert Fourth Amendment rights.”
- No protected interest means “you don’t have a dog in the fight. You don’t get to file that motion to suppress.”
- You still charge the possession. They just cannot contest the search.
- “Is it yours?” is not enough. Ask the second question: “Does anybody have anything to do with this bag? Anything at all?”
- Why it matters: “You are the one who’s going to have to convince the court that there was legitimate abandonment here.”
- Rakas v. Illinois on standing, and Byrd out of the Supreme Court.
Related from Blue to Gold
This article is an edited transcript of Roadside Chat EP#821. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
