The Fourth Amendment to the United States Constitution (and therefore Article I, Section 12 of the Florida Constitution) aims to protect the people from unreasonable searches and seizures by the government.  In most cases, a  lawyer will try to identify a Fourth Amendment violation in hopes of arguing that its fruits (i.e. the drugs or weapons recovered) should be excluded from evidence.  A successful argument can be a fatal blow to most criminal prosecutions.

Of course, like all rights, the Fourth Amendment’s protections can be waived by our clients before we ever handle the case.  By far, the most common waiver-type situation is one where our client simply consents to a warrantless search of his or her home, car, bag, body, etc.   Caselaw is replete with references to the consent exception to the Fourth Amendment.  But far less common is the abandonment exception to the Fourth Amendment and cases interpreting it.   That’s what makes the recent opinions by the Third District Court of Appeal  so interesting.  In the span of one calendar week the court has issued two written opinions addressing the abandonment exception to the Fourth Amendment. Unfortunately, neither case came out well for the defendant.

Strawder v. State: Another “Garbage” Fourth Amendment Case

In Strawder v. State, No. 3D14-337, argued by appellate specialist Assistant Public Defender Harvey Sepler (the same lawyer who successfully argued Florida v. J.L. before the United States Supreme Court, earning a 9-0 vote in his client’s favor), neighbors called the police when they noticed an RV parked on the lawn next door was on fire.  Police arrived and entered a nearby home (with consent of the homeowner) and warned Strawder and a companion, who were inside it, to evacuate for their own safety, during which police noticed that Strawder was holding a “black box.”

Shortly after they left, police received a call reporting that two males were “acting suspiciously” (that is, one man placed an item in a garbage can in the neighborhood and then left) nearby.  Police went to investigate and, again, noticed Strawder and his companion–only this time, the black box was no longer in Strawder’s hands.  As the police began to look through garbage cans, they found what appeared to be a black box (the same one? different? they weren’t sure at the time).  After the homeowner associated with that garbage can disavowed any knowledge or ownership of it, police began to photograph it and impound it.  That’s when they noticed Strawder again–this time pacing back and forth watching them.

Strawder finally approached the police and claimed that the black box was his; that it contained cash and jewelry; and that he merely stashed it in the garbage to prevent any damage by the nearby fire.  To prove ownership, Strawder was asked to open it; an invitation he declined (you’ll find out why later).  When offered a property receipt and told that he could come by the police station to formerly claim it, Strawder again declined.

For five days nobody came to claim the box.  The police, being police (that is, nosy and incredibly suspicious), they sought a search warrant to open it.  Thankfully, a judge denied that request as there was no connection to any criminal activity whatsoever.  So police being police (that is, not taking no for an answer) decided to skirt any Fourth Amendment issues by performing an x-ray of that black box, which they clearly knew was a small safe.  That x-ray revealed the outline of a gun, BINGO!, which prompted the police to open it up (without a warrant).  Insde was an UZI, two .45 caliber magazines, 3+ grams of cocaine, $1,251, and other personal items — including Strawder’s ID! Things just couldn’t get any better for police.

Strawder was later arrested and charged with possession of a firearm by a convicted felon and possession of cocaine.  His attorney filed a motion to suppress, arguing that the police’s warrantless search of the safe was unreasonable and the physical evidence should be excluded.  Concluding that Strawder had abandoned the safe, the trial court ruled that Strawder had also abandoned any reasonable expectation of privacy in the safe and its contents.  Strawder was convicted of each crime in two separate trials, and his appeal ensued.

On appeal, the Third District Court of Appeal agreed with the trial court.  It noted that whether Strawder “abandoned” the safe was properly addressed with a reasonable expectation of privacy analysis, not  property law concepts.  Citing to the leading Supreme Court Fourth Amendment garbage case, California v. Greenwood, the Third DCA held that when Strawder placed the safe into someone else’s garbage he had, from an objective perspective, abandoned any reasonable expectation of privacy.  Game over.

The great irony in this case, of course, is that had Strawder taken ownership and possession of the safe when police offered him the opportunity (for example, keeping a property receipt and later retrieving it from the police station), he may very well have reclaimed his Fourth Amendment protections and never been arrested, prosecuted, and convicted.

State v. Milewski: Answering What Fourth Amendment Protections Remain in Remains (literally)

Earlier today (1/20/2016), the Third DCA issued its opinion in State v. Milewski, No. 3D13-3140, a case dealing with a sensitive subject for many: animal cruelty.  But it also called for the court to address privacy interests in remains.  For those who don’t want all the details, the end result appears to be that, at least in this jurisdiction, if you pay more money to have private cremation (where you’re guaranteed specific remains), you might have Fourth Amendment protections; opt for the cheaper, group cremation alternative, and you’re SOL.

Milewski walked into an animal hospital with an unresponsive puppy and left with a stabilized puppy.  Sadly, though, he later returned with that same puppy–now deceased–and requested cremation.  The veterinarian advised that private cremation was costly, so Milewski opted for the cheaper group cremation alternative.  Emotions aside, that decision — private (where that specific puppy’s remains would be returned) v. group (where undifferentiated remains from many animals are returned) cremation —  proved fatal to Milewski  (pun intended).

Why? Prior to cremation a necropsy was performed, which showed injuries consistent with sever animal abuse, not a “simple fall” as Milewski reported.  The results of that report (both the documents and a verbal explanation of them) were provided to police, which lead to Milewski’s arrest and prosecution for animal cruelty.  His lawyer argued that Milewski retained an expectation of privacy in his deceased puppy’s remains and necropsy report; an argument that actually persuaded the trial court, which granted the motion — thereby excluding the evidence.  The State (unsurprisingly) appealed and won, arguing that Milewski had abandoned the puppy and therefore his Fourth Amendment protections, too.

In the Third DCA’s view, by “conciously cho[osing] group cremation over private cremation,” and paying for that “less expensive” option, he demonstrated a “lack of intent to receive the puppy’s ashes in return” and, therefore, had abandoned his expectation of privacy.  The end result? He did not have standing to challenge the warrantless search and seizure.

This article was written by top criminal defense attorney, Jordan Redavid, Esq., managing member of Redavid Law PLLC.  If you or a loved one have been arrested and are in need of a criminal lawyer, call Jordan Redavid 24/7 for a FREE consultation.  (305) 938-9939.