probable cause reasonably arising out of circumstances known to the officers that Abbott's vehicle contained contraband.
As an additional justification for its warrantless search of Abbott's vehicle, the government contends that Abbott abandoned his car and, therefore, had no reasonable expectation of privacy in its contents. Abbott argues that the abandonment doctrine does not apply to the facts of this case because there was no unambiguous act of intentional discard on his part, as in Abel v. United States, 362 U.S. 217, 241, 4 L. Ed. 2d 668, 80 S. Ct. 683 (1960).
The defendant in the Abel case was convicted for conspiracy to commit to espionage. At his trial several items seized from his hotel room were admitted into evidence. Two of the items were discovered by F.B.I. agents in the course of a warrantless search of Abel's room after he had paid his hotel bill and vacated the room. The hotel gave its consent and the agents searched the room. The incriminating items were discovered in a wastepaper basket. Although warrantless, the government made no pretense that the search was for any purpose other than to gather evidence of crime.
The Supreme Court upheld the search ruling that "there can be nothing unlawful in the Government's appropriation of such abandoned property." Abel, 362 U.S. at 241. In short, the Court reasoned, Abel "had abandoned these articles. He had thrown them away." Id.
In the case sub judice, the government argues that following Abel, courts have consistently held property to be abandoned where a defendant, after being lawfully pursued, throws away or discards property. See, e.g., United States v. Walton, 538 F.2d 1348, 1354 (8th Cir.), cert. denied, 429 U.S. 1025, 97 S. Ct. 647, 50 L. Ed. 2d 628 (1976); United States v. Edwards, 441 F.2d 749 (5th Cir. 1971); United States v. Martin, 386 F.2d 213, 215 (3d Cir. 1967), cert. denied, 393 U.S. 862, 21 L. Ed. 2d 130, 89 S. Ct. 142 (1968). However, Abbott's conduct is dissimilar to the defendant who, finding himself pursued, left his automobile in the street with the lights on and the motor running and fled on foot, or the defendant who throws contraband through the window of his automobile to escape detection. These cases are factually inapposite and offer little guidance beyond stating the applicable principle of law.
Whether there is an "abandonment depends largely on the possessor's intent, and the party relying on it must establish the necessary state of mind by clear and unequivocal evidence." United States v. Moody, 485 F.2d 531, 534 (3d Cir. 1973) (citations omitted). The Second Circuit has defined the abandonment of property as "the relinquishing of all title, possession or claim to or of it -- a virtual throwing away of it. It is not presumed. Proof supporting it must be direct or affirmative or reasonably beget the exclusive inference of throwing away." See United States v. Cowan, 396 F.2d 83, 87 (2d Cir. 1968).
In light of the narrow facts of the Abel decision, this Court agrees with Abbott that the government has not met its burden on the issue of abandonment. On the record before this Court, Abbott did not manifest the requisite intent to abandon his car. Nor has the government shown by clear and unequivocal evidence that he intended to do so. When the police officers discovered Abbott's vehicle it was parked on a private lot, the engine was off, the doors were closed and the keys were gone. The fact that Abbott's vehicle was improperly parked or that it was earlier involved in a chase, does not, ipso facto, give rise to an inference that Abbott had thrown the car away. To hold so would create a dangerous precedent. An officer who sees an interesting package in an improperly parked automobile may consider it abandoned to obtain justification for a search of the package. Thus, the intent to relinquish one's expectation of privacy in his effects must rest on a more substantial basis.
In addition, the record is devoid of evidence that Abbott's vehicle was objectively identified, e.g. by distinctive markings or a license number, as the vehicle pursued. Proper identification is important in cases of this nature, because the intent to abandon is inferred "from words spoken, acts done and other objective facts." United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973) (en banc). Where the defendant, having been pursued, is observed discarding contraband it is proper to infer that the intent to abandon is present. But, as in this case, where the supposed abandoned vehicle is parked, and is not objectively identified as having previously been pursued, the intent to abandon is attenuated. This is because the nexus between the vehicle and the conduct which infers intent has not been objectively drawn. The unacceptably high probability of mistaken identity best illustrates the importance of this concern.
Finally, the application of the abandonment doctrine is especially tenuous in this case because the arresting officers did not consider Abbott's car to be abandoned. Under the police department's Procedural Order Number 145-2, vehicles to be considered abandoned are specifically defined.
In addition, that Order specifies that no vehicle shall be towed unless a "Notice of Abandoned Vehicle" form is completed and the abandoned vehicle is reported. In this case, Officer Martine did not follow the procedures for towing an abandoned vehicle, nor did he complete the required forms. More importantly, Abbott's car did not fall within the police department's definition of an abandoned vehicle.
On the facts of this case, the government has not met its burden of demonstrating Abbott's clear and unequivocal intent to abandon his car. Clearly, Abbott did not throw his car away; nor did the arresting officer believe that he had. Under these circumstances there was no basis for the government's warrantless search of Abbott's vehicle.
In passing, this Court registers its deep concern with the police officers' conduct in this case. The case before this Court does not present the type of egregious facts typically associated with society's notion of official lawlessness. But this case presents the most appealing scenario for criticism of the exclusionary rule and the judiciary for its application. For this reason, the conduct of the city's law enforcement officers and the application of the exclusionary rule merits comment.
When reliable and often the most probative evidence bearing on the guilt or innocence of an accused is excluded from trial, society is outraged, and properly so. Understandably, the public is alarmed at the dreadful impact that crime is having on our society, and it is no wonder that people are infuriated at the erroneous notion that the exclusionary rule sets criminals free because the constable has blundered.
Notably, the purpose of the Fourth Amendment is not to protect a handful of drug dealers or let ruthless criminals escape punishment. Nor are courts in the business of getting criminals on the streets as fast as they can. The foremost purpose of the Fourth Amendment is to protect the privacy of all citizens; particularly law abiding citizens who would be otherwise subject to the unbridled seizure of their persons or invasions of their homes, not because the constable has blundered, but because he is overzealously searching for a criminal or evidence of crime, or in some cases, intentionally using his immense power in a vindictive or oppressive manner for personal and unlawful reasons. It is this unfettered discretion the Fourth Amendment prohibits and the law abiding citizen it seeks to protect.
The exclusionary rule is presently the only viable remedy to deter Fourth Amendment violations by suppressing its fruits and denying the government the benefits of its illegal conduct. The rule works in the best interest of the criminal justice system, the law enforcement community and for every American citizen. However, the rule is open to criticism because its values are abstract while the price for its enforcement is obvious. It excludes hard evidence from trial -- usually the fruits and instrumentalities of crime. It appears to the layman to reward the undeserving criminal through legal "technicalities."
We should never forget, however, that the Fourth Amendment extends to protect the innocent and the guilty alike. The values protected under the Fourth Amendment are precious; lest we forget that the right to be secure in our homes and possessions is not a right exclusively to those who break the law. See Weeks v. United States, 232 U.S. 383, 392, 58 L. Ed. 652, 34 S. Ct. 341 (1914). It is the potential innocent victim of an illegal search and seizure that the Fourth Amendment seeks most vigilantly to protect:
It is easy to salute the liberties of the Bill of Rights in the abstract. But these freedoms have a price. It is difficult to remember, but we must never forget, that we cannot apply them selectively. Only insofar as we permit their effective exercise by the guilty will they remain strong protection for the innocent. Rights atrophy with disuse. They must not only be used in times of calm, but in times of passion and fear as well.
Exclusionary Rule Bills: Hearing on S.101, S.751 and S.1955 Before the Subcomm. on Criminal Law of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess. 47 (1981) (testimony of Stephen H. Sachs, Attorney General of Maryland).
Absent the protection of the exclusionary rule, violations of the Fourth Amendment would abound. See, e.g., Williams v. Alioto, 549 F.2d 136 (9th Cir. 1977) (suit filed to stop police department's frisking of thousands of innocent citizens who met description of so-called Zebra killer in San Francisco); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) (injunction sought after Baltimore police invaded 300 private homes based on an unverified anonymous tip). Without the incentive of the exclusionary rule, which encourages law enforcement officials to obey the law, coerced confessions, dragnet arrests and frisks and indiscriminate break-ins of private homes would be far more frequent occurrences.
It is for these reasons that our system of jurisprudence mandates vigilant protection of the sanctity of a man's home and his privacies of life. The Fourth Amendment requires it. The exclusionary rule simply seeks to "encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their [work-a-day] value system." Stone v. Powell, 428 U.S. 465, 492, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). So too, constitutional protection of civil liberties is seriously stymied when the law enforcement community turns a deaf ear to court decisions delimiting the sphere of lawful police conduct. Police officers are not required to observe all of the fine distinctions drawn by men learned in the law. Society, however, rightfully expects that the "cop on-the-beat" will acquaint himself with the common and important provisions of law and operate within their bounds. On this point this case is particularly instructive.
The exclusionary rule makes no distinction between egregious violations of the Fourth Amendment and those occasioned through mistake. It excludes from trial all evidence illegally obtained. The case now before this Court is not one of mistake; nor do the facts, on their face, shock the conscience of the Court. But the patently pretextual nature of the supposed inventory search in this case raises a far weightier concern. Simply, the facts here demonstrate a reckless disregard for the most fundamental rights cherished by a freedom-loving society -- the right to be free from intrusive and arbitrary invasions of privacy. Moreover, the wrong committed is pointedly exacerbated when the offending officer seeks to cover his tracks through subsequent words and conduct.
It is enough to say that this form of police conduct should find no sanction in the law enforcement community. This admonition applies equally to those who formulate policy as well as those who carry it out. The conduct of the City's police officers, in this case, is wholly repugnant to our founding father's concept of law and order. Moreover, official lawlessness will engender numerous adverse consequences to society which far outweigh any benefits obtained. When the "cop on-the-beat" ignores the law and violates the citizens' rights to privacy, it calls into question the integrity of the individual officer; diminishes public respect for the law enforcement community; erodes public confidence in the criminal justice system; undermines the deterrent effect of the exclusionary rule; and adds countless hours to adjudication of criminal offenses at a time when the judicial system is straining under the burden of costly and time-consuming litigation. In sum, the end can never justify the means.
The motion to suppress is granted. An appropriate order follows.
AND NOW, to wit, this 19th day of April 1984, after consideration of the evidence, briefs, and arguments in the above-captioned case and for the reasons more fully set forth in the accompanying opinion, it is ORDERED, ADJUDGED and DECREED that the Defendant's, Charles J. Abbott, Motion to Suppress be and the same is hereby GRANTED.