Carlisle v. State, 6 Div. 987

• Decision Date: 30 June 1987
• Docket Number: 6 Div. 987
• Citation: 533 So.2d 645
• Parties: Richard Lancaster CARLISLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 645

533 So.2d 645

Richard Lancaster CARLISLE v. STATE.

6 Div. 987.

Court of Criminal Appeals of Alabama.

June 30, 1987.

Rehearing Denied Sept. 8, 1987.

Certiorari Denied Dec. 4, 1987

Alabama Supreme Court 86-1619.

On Return to Remand Sept. 20, 1988.

Andrew LaPlante, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Richard Lancaster Carlisle, was convicted of a violation of the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama (1975), and sentenced to twenty-two years' imprisonment.

Officer Reuben Wilkinson of the Fairfield Police Department testified that, while he was on patrol at approximately 5:00 p.m., he observed the appellant carrying a paper sack and walking down the street. Wilkinson testified that he was driving at a rate of approximately five to ten miles per hour and, during his observation of the appellant, came within 75 to 100 feet of him at the closest point. The appellant looked over his shoulder, back in the vicinity of Officer Wilkinson, several times and then dropped the sack onto a median between the street and the sidewalk. He continued walking and turned down a side street. Officer Wilkinson picked up the sack and observed a brown leather bag inside, whereupon he radioed for assistance. He stopped the appellant, patted him down, and placed him in the back of his patrol car. Shortly thereafter, Officer Wilkinson opened the leather bag and found a .32 caliber revolver, cigarette papers, a brown glove, small manila envelopes, a small envelope containing a white powdery substance, and a cigarette package filled with four small bags of the white powdery substance. He then took the appellant to the police station.

I

The appellant argues that there was no probable cause to arrest him in that he was walking "in a place where it is not unusual for people to be walking, and merely dropped a bag and kept walking, before he was arrested." However, this is a case where the existence of probable cause need not be determined, because the act of dropping the bag to the median constituted an abandonment. United States v. Speed, 388 A.2d 892, 893 (D.C.App.1978).

"The distinction between abandonment in the proper law sense and abandonment in the constitutional sense is critical to a proper analysis of the issue. In the law of property, the question ... is whether the owner has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully exert his superior interest Brown, Personal Property (3d) § 1.6. 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. Cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein.

"Where the presence of police is lawful and the discard occurs in a public place where the defendant cannot reasonably have any continued expectancy of privacy in the discarded property, the property will be deemed abandoned for purposes of search and seizure. Such is the case here."

City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365, 370-71 (1975).

In Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), the United States Supreme Court held that a warrantless seizure of abandoned property by the police does not violate the Fourth Amendment. See also Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

"When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had. United States v. Berd, 634 F.2d 979, 987 (5th Cir.1981). Therefore, a warrantless search or seizure of abandoned property is not unreasonable under the Fourth Amendment. [Citations omitted.] The existence of police pursuit or investigation at the time of abandonment does not of itself render the abandonment involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973); see generally, e.g., Berd, 634 F.2d at 987; United States v. Canady, 615 F.2d 694 (5th Cir.), cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); United States v. Williams, 569 F.2d 823 (5th Cir.1978); [United States v.] D'Avanzo, 443 F.2d 1224 [ (2d Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 89 (1971) ].

"The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. [Citation omitted.] This determination is to be made by objective standards. United States v. Kendall, 655 F.2d 199, 201 (9th Cir.1981), cert. denied, 455 U.S. 941, 102 S.Ct. 1434, 71 L.Ed.2d 652 (1982). An expectation of privacy is a question of intent, which 'may be inferred from words spoken, acts done, and other objective facts.' "

United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.1983), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983). See also State v. Reed, 284 So.2d 574, 575 (La.1973).

The appellant, in a similar case, People v. Sylvester, 43 Ill.2d 325, 253 N.E.2d 429 (1969), placed a brown paper bag containing drugs on the curb of a public street immediately before entering a police car. The Illinois Supreme Court stated:

"In our judgment determination of the validity of the arrest is irrelevant as are the arguments relating to the reasonableness of a search, for in this case no "search" ever occurred. The bag was sitting in plain and open view on the sidewalk curb where it had been abandoned by defendant, and its seizure by the officers under these circumstances in no way violated any constitutional rights of defendant. People v. Martinez, 257 Cal.App.2d, 270, 64 Cal.Rptr. 666 [1967]; United States v. Clark (W.D.Pa. [1968] ), 294 Fed.Supp. 1108." 43 Ill.2d 325, at 327-28, 253 N.E.2d 429, at 430."

See also, People v. Hoskins, 101 Ill.2d 209, 78 Ill.Dec. 107, 461 N.E.2d 941, 946, cert. denied, Hoskins v. Illinois, 469 U.S. 840, 105 S.Ct. 142, 83 L.Ed.2d 81 (1984).

"The great majority of the court decisions having to do with the abandonment of effects in a search and seizure context are similar ... in that it appears the defendant tried to dispose of certain incriminating objects upon the lawful approach of or pursuit by the police. Thus, effects have been held to be abandoned when they were thrown from a car or motorcycle, when they were dropped to the ground by a pedestrian, when they were left behind in a place accessible to the general public, and when they were thrown out of the window of a residence."

W. LaFave, Search and Seizure (2d ed 1987), § 2.6(b) at 466.

"Only if the abandonment had been precipitated by an illegal detention would the property been rendered inadmissible evidence." Gipson v. State, 459 N.E.2d 366, 367 (Ind.1984). "To fall outside of fourth amendment protection, a defendant's abandonment of evidence cannot be the product of unlawful police conduct. United States v. Beck, 602 F.2d 726, 729 (5th Cir.1979)." United States v. Koessel, 706 F.2d 271, 274 (8th Cir.1983). "If, however, property is abandoned without any prior unlawful intrusion into a citizen's right of freedom from governmental interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person's custodial rights." State v. Andrishok, 434 So.2d 389, 391 (La.1983).

" 'If the officer does nothing, or if he simply places the individual under surveillance, in the belief that he may possibly witness some criminal activity, then there will be no issue of unreasonableness. If, however, the officer, without benefit of probable cause, and acting strictly on a "hunch," or because of suspicion based upon personal knowledge or hearsay, decides to follow the individual, and proceeds to hound him in a harassing manner, hoping that the individual will panic in the belief that he had better "ditch the stuff" before there is a shakedown, then an issue of major constitutional proportions will arise.' Since the individual cannot possibly know in advance how far the officer will go, he has no way of gauging a prudent course. If the officer continues to close in, the individual has to anticipate a search. To do nothing means certain discovery. To attempt a discard is to invite a retrieve, thereby giving the officer probable cause to arrest....

" 'There is no meaningful distinction of constitutional significance between unreasonable search and seizure activity, and harassing official conduct outside the legitimate investigative sphere which prompts an individual to reveal what would otherwise be impermissible for the police to seek by means of a search of his person. In short, the police may not do indirectly what is denied to them directly. In either event, they will be engaging in conduct equally unreasonable under the fourth amendment, which, apparently, has been recognized by both the Supreme Court and several lower courts. If a question, an observation, or an act of hearing, can each be considered part of the search process, there seems little reason why the same reasoning may not equally apply to harassing police conduct that seeks to prompt the victim into revealing what would otherwise be the product of an unreasonable search and seizure if conducted by the officer. Therefore, if overbearing conduct outside the realm of legitimate investigation falls beyond the pale of the fourth amendment, any attempt to exploit it by retrieving its fruits for subsequent use in a criminal prosecution should be condemned and suppressed under the same authority.' "

W. LaFave, supra, at 473-74, quoting Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of...