Abandonment and Consent

As I’ve noted in prior posts, and as Wikipedia explains in some detail, the Supreme Court has recognized a number of exceptions to the 4^th Amendment’s requirement that law enforcement officers obtain a search (and seizure) warrant before they search a place or a thing for evidence of a crime. This post is about one of those exceptions: abandonment.

I don’t believe I’ve done a post dealing with the abandoned property exception to the 4^th Amendment’s warrant requirement (maybe because people aren’t prone to abandon computers and computer-related technology). If you’d like a detailed overview of the exception, check out this 1994 article from the FBI Law Enforcement Bulletin.

I can’t find much in the way of Supreme Court discussion of the exception, though the Court has recognized it. In Abel v. U.S., 362 U.S. 217 (1960), the Court held that a “hollowed-out pencil and . . . block of wood containing a `cipher pad’” left in a hotel room wastebasket by a suspected Russian spy were abandoned property and therefore not protected by the 4^th Amendment. The Court pointed out that Rudolf Abel, the suspected spy, had “vacated the room”, thereby “abandon[ing] these articles.” Abel v. U.S., supra.

This post is about a case in which the issue was whether the [Hart] had abandoned his computer, which apparently contained child pornography. I say “apparently” because he was charged with two counts of “child sexually abusive activity” and “one count of using a computer to commit possession of child sexually abusive material.” People v. Hart, 2010 WL 2292128 (Michigan Court of Appeals 2010). This is how the charges came to be filed against Edward Hart:

On June 21, 2006, the Wayne Circuit Court entered a . . .judgment of divorce against [Hart]. . . . [He] continued to inhabit the marital residence for two weeks after the divorce. [He later] claimed . . . he lived in the marital residence until August 12 . . . [P]ersonal property belonging to [Hart] remained in the marital home after [he] departed, and . . .included a computer and . . . CD-ROMs and other computer media. . . .

[O]n August 12, [Hart] `came to get his things and a domestic violence . . . occurred’ [involving his ex-wife Robbin Hill]. In response to a call from Hill, the Livonia police arrested [Hart] and placed him in jail. The next day, Hill telephoned the police to inform them she had seen images of naked, `[v]ery young girls’ on [Hart]'s computer. . . .’ . . .

[When] Livonia Police Officer Brian Duffany . . . arrived at Hill's residence, she told him `she had evidence of child pornography in her home, and `there was property in her home that she no longer wished to be there[.]’ Hill advised Duffany that the police had arrested her former husband the previous day, which Duffany confirmed with a police dispatcher. Duffany used Hill's computer to view images on a CD-ROM. After watching `one [video] clip,’ Duffany called dispatch and a sergeant came to the scene. [Police decided to `confiscate all the disk[s] and computer equipment.’ . . . [Duffany later said’ Hill had shown [him] `paperwork from a ruling back in June,’ and [said Hart] was `supposed to have all the stuff out of here. So my understanding i[t] was his and now it was left at the house and she no longer wanted it.’ Duffany conceded [that he knew Hart] had been released from jail on a `conditional bond’ that permitted him to retrieve his property from the house. . .

Several days after Duffany seized [Hart]'s computer and computer media, Livonia Detective Higgason requested that Hill sign a consent form permitting his search of the . . . computer and computer media that belonged to [Hart]. On September 12, Higgason obtained a search warrant because, `[u]pon reviewing the report and looking over the consent stuff, I was not comfortable with doing an exam on the computer without a search warrant.’ . . .

People v. Hart, supra (Gleicher, J., dissenting). A footnote in the opinion by the judge who dissented in this case quotes Hill’s testimony at the suppression hearing, in which she said the computer and CD-ROMs the police seized belonged solely to Hart and she did not use any of them. People v. Hart, supra (Gleicher, J., dissenting).

After being charged with the crimes noted above, Hart moved to suppress the evidence, claiming the seizure of his computer and disks violated the 4^th Amendment. People v. Hart, supra. The trial judge granted the motion to suppress:

[Hart] has continuously claimed the personal property as his own private property and Hill also treated this as [his] own personal property. . . . The day the computer was seized, [Hart] and his brother, after [Hart was] released from jail . . . came with a truck to remove his property. He never . . . acted as if he had abandoned this property. . . .

People v. Hart, supra (Gleicher, J., dissenting). (Hart only challenged the seizure because Detective Higgason didn’t rely on Hill’s dubious consent to search the computer and disks; instead, he got a search warrant, which would be valid if the seizure of the computers and if Hill’s showing the child pornography to the officers didn’t violate the 4^th Amendment, neither being issues I’m going to take up here.)

The prosecution appealed the trial judge’s order granting the motion to suppress, and on January 24, 2008 the Michigan Court of Appeals reversed the trial court’s order. People v. Hart, supra. I don’t have the 2008 opinion; all I have is the June 8, 2010 per curiam opinion in which the Michigan Court of Appeals refused to reconsider its decision. The Court of Appeals found that Hart’s “avenue of redress from that order was to apply for rehearing [by the Court of Appeals] or appeal to the Michigan Supreme Court”, but he “did neither.” People v. Hart, supra. The Court of Appeals therefore held that Hart’s attempt to get it to reconsider its earlier decision was foreclosed by the “law of the case doctrine”. People v. Hart, supra.

As Wikipedia notes, the law of the case doctrine refers to the principle that “if an appellate court has passed on a legal question . . . , the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.” As Wikipedia also notes, the law of the case doctrine, like the related doctrine of stare decisis, is based on the premise that litigation should have an end, i.e., an issue once decided cannot be reopened (unless there has been a material change in facts or law).

Judge Gleicher of the Michigan Court of Appeals dissented. She found, first, that the law of the case doctrine did not control because both Michigan courts and the U.S. Supreme Court have noted that its application in criminal cases “is not inflexible” and it should not be applied “if it will create an injustice.” People v. Hart, supra (Gleicher, J., dissenting). Judge Gleicher noted that because the case involved a constitutional issue, the law of the case doctrine should yield “to permit this Court to independently consider the factual record in full.” People v. Hart, supra (Gleicher, J., dissenting). That sounds like they didn’t consider it in full the first time but, not having access to that opinion, I don’t know if that’s true or not. (I ran several searches on the Michigan Court of Appeals’ website, and found some opinions involving defendants named Hart, but none of them were the January 2008 opinion in Edward Hart’s case.)

I suspect it is: When Judge Gleicher took up the issue of abandonment, she noted that in the Court of Appeals’ “peremptory order reversing the trial court's suppression of the computer and related evidence, the Court held that because Hill told the police [Hart] had `abandoned the items at the house’ and had `shown [the police] a Judgment of Divorce,’ the officers `reasonably believed Hill had authority over the items.’” People v. Hart, supra (Gleicher, J., dissenting). She disagreed with this conclusion:

[An] officer in Duffany's shoes could reasonably have concluded that the computer and computer media constituted abandoned property if the circumstances showed [Hart] had deliberately relinquished his property and privacy interests in the computer and computer media. Duffany admitted his awareness that at the time of the seizure [Hart] possessed a conditional bond authorizing him to retrieve his property from Hill's home. Duffany also knew the police had arrested [Hart] at Hill's home a day or two before she called to report the pornography. With minimal inquiry, Duffany would have ascertained that [Hart] had been released from jail and intended to promptly retrieve his property. The evidence of [Hart]'s efforts to . . . reclaim his property reflect his desire to maintain his possessory . . . interests in the property, not to abandon the items. . . . I find patently unreasonable Duffany's conclusion that [Hart] abandoned the property. Furthermore, no evidence suggests that the officers at the scene actually read the divorce judgment, and nothing in that judgment or the law proclaimed [Hart]'s property abandoned if he neglected to retrieve it within a certain time frame.

At a minimum, the situation presented some ambiguity about Hill's authority to consent to a seizure of items that indisputably did not belong to her. Under the totality of the circumstances, I find it unreasonable for Duffany to have proceeded with a warrantless confiscation. Additional investigation would have revealed that [Hart] had [not] `abandoned’ his property . . . but to the contrary repeatedly sought to remove the items from Hill's home. . . . Because Hill did not possess the authority to consent to the seizure and Duffany had no reasonable basis for believing [Hart] had abandoned his computer and computer media, I would reverse.

People v. Hart, supra (Gleicher, J., dissenting).

For a decision that reached the opposite conclusion, i.e., no abandonment, on somewhat similar facts, see U.S. v. Crist, 627 F.Supp.2d 575 (U.S. District Court for the Middle District of Pennsylvania 2008) (tenant whose rent was 26 days overdue and wasn’t living in the rental property hadn’t abandoned computer left there because no eviction proceedings had begun, he had not been given notice his property would be removed and he showed up to retrieve his property after someone had already taken the computer).