The Supreme Court of Ohio has handed down a merit decision in State v. Gould, 2012-Ohio-71. The issue is whether a warrantless search of abandoned property is permissible under the Fourth Amendment.
After being laid off from his job, Dennis Gould moved in with his mother, Sharon Easterwood, in Toledo. While living there, he gave his mother a computer hard drive and told her to keep it and not let anyone else have it. About six months later he moved into his own place and took his things with him. But he left the computer hard drive at his mother’s.
A month later Gould’s mother returned the hard drive to Gould after Gould’s twin brother Douglas told her to get rid of it because it probably contained child pornography. Several months after that Gould’s older brother Gregory moved in with him. Gould stole Gregory’s truck and vanished. He left all of his belongings behind, including the hard drive. Gregory sold all of Gould’s stuff at a yard sale, but Easterwood took the hard drive out of concern for what was on it.
Ultimately, Easterwood brought the hard drive to Detective Gina Lester at the Toledo Police Department. Easterwood told the detective that her son had given her the hard drive and had instructed her not to allow anyone else to have it. Easterwood also told the detective that she suspected the hard drive contained child pornography and that she believed Gould had abandoned the hard drive. After the detective tried unsuccessfully for months to contact Gould, Easterwood gave the police her consent to search the hard drive, which was found to contain child pornography. Gould was subsequently arrested in Michigan and brought back to Toledo.
At Gould’s trial, the court refused to suppress evidence of the materials found on the hard drive, finding that Gould had abandoned the hard drive and had no expectation of privacy in it. Gould was convicted of a number of sexual and child pornography offenses, and sentenced accordingly. The Sixth District Court of Appeals reversed, finding the state had failed to prove abandonment, and that the warrantless search of the hard drive was unconstitutional.
In a unanimous decision (Justice Pfeifer concurred only in the judgment) written by Justice Terrence O’Donnell, the Supreme Court of Ohio reversed the court of appeals, and reinstated Gould’s conviction and sentence.
In this state’s appeal the prosecution had urged the Court to adopt this proposition of law in reliance on Herring v. United States, a recent U.S. Supreme Court decision limiting the reach of the exclusionary rule to egregious or systemic police misconduct:
“ The exclusionary rule applies only when a violation of Fourth Amendment rights is the result of deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights or involves circumstances of recurring or systemic negligence. Evidence may not be excluded unless the conduct is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” (citing Herring).
The defense had responded that suppression of the hard drive in this case was necessary to deter this kind of police mistake.
The Court did not adopt this proposition of law, and stayed away from this approach. Instead, the Court took the easier way out in this case, deciding it strictly on the issues of abandonment, and the lack of any reasonable expectation of privacy.
To resolve the case in this way, the Court had to answer the question of whether Gould had a reasonable expectation of privacy in the hard drive at the time the police searched it.
The Court noted that it is settled law that “the Fourth Amendment prohibition against unreasonable searches does not apply to property that has been voluntarily abandoned, because society does not recognize an expectation of privacy in abandoned property as being objectively reasonable.”
In 1972, in Smith v. Maryland (1979), 442 U.S. 735, the U.S. Supreme Court held that to “establish a legitimate expectation of privacy in property protected by the Fourth Amendment, a person must exhibit a subjective expectation of privacy that, viewed objectively, is reasonable under the circumstances.”
The Supreme Court of Ohio follows the Smith v. Maryland decision in this case, and makes it a part of the syllabus. Applying that test to the facts of Gould’s case the Court found that Gould had no objectively reasonable expectation of privacy in his hard drive, and the police could reasonably assume he had abandoned it. Further, a warrantless search of abandoned property does not violate the Fourth Amendment because any expectation of privacy is relinquished when the property is abandoned.
Here’s the case syllabus:
1. A warrantless search of abandoned property does not violate the Fourth Amendment because any expectation of privacy is forfeited upon abandonment. (United States v. Chandler (C.A.8, 1999), 197 F.3d 1198, followed.)
2. To establish a legitimate expectation of privacy in property protected by the Fourth Amendment, a person must exhibit a subjective expectation of privacy that, viewed objectively, is reasonable under the circumstances.(Smith v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220, followed.)
Here was my prediction after the oral argument:
“The Court seemed far more concerned (and dubious) about the merits of Gould’s argument that the hard drive had not been abandoned than it was about the application of Herring to the facts of the case. A majority of the justices seemed skeptical that there even was any police misconduct in the case. The Court may just engage in some error correction here, and stay away from any sweeping Herring analysis.”