Abandoning places.

Abandonment is defined in Black's Law Dictionary as "[t]he surrender, relinquishment, disclaimer, or cession of property or of rights. Voluntary relinquishment of all right title, claim and possession, with the intention of not reclaiming it." (1) Abandonment issues commonly arise (2) in search and seizure situations involving trash, (3) vehicles, (4) locations, and items. A prior FBI Law Enforcement Bulletin article titled, "Abandonment of Items Associated with the Person" (5) focused on abandonment of items. This article examines the legal issues associated with the abandonment of locations, such as homes, (6) apartments, (7) hotel rooms, (8) and storage lockers. (9) It also addresses the Fourth Amendment concept of a reasonable expectation of privacy and the issues of disclaimer of association with a particular location and the physical relinquishment of a location.

REASONABLE EXPECTATION OF PRIVACY

The Fourth Amendment to the Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause. ... " (10) The U.S. Supreme Court has stated, "[a] 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." (11)

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When an individual abandons a location, the individual's Fourth Amendment rights and protections in relation to that location no longer exist. (12) The Fourth Amendment protections cease to exist because the person has given up his reasonable expectation of privacy in the location. (13) This is important because if an individual has no reasonable expectation of privacy in the location, then an intrusion by the police into that location is not a search under the Fourth Amendment. (14)

The burden rests on the government to prove that the location was abandoned and, therefore, an individual had no reasonable expectation of privacy in the area. (15) As courts have noted, "the critical inquiry is 'whether the person prejudiced by the search ... voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" (16)

To demonstrate that an individual had no reasonable expectation of privacy in an abandoned location, courts will look to the intent of the individual "which may be inferred from acts, words and 'other objective facts.'" (17) In undertaking this analysis, courts will look to the totality of the circumstances and, particularly, to the words and acts of the individual regarding the abandonment. (18) As in abandonment situations regarding the abandonment of items of property associated with the person, location abandonment situations involve close examination of the two primary issues of disclaimers and the physical relinquishment of a location. (19)

DISCLAIMERS

An individual's statement that he does not own or has not rented a particular location can provide strong evidence of abandonment. Such disclaimers may be written, verbal, or nonverbal in nature. Because the government has the burden of proving that an individual disclaimed a particular location, law enforcement officers should be very clear regarding the exact location they asked about and exactly how the individual disclaimed or denied association with the location.

In abandonment of location cases, a person may abandon the actual location or both the location and the items within it. The U.S. Court of Appeals for the Eighth Circuit decision United States v. Caballero-Chavez (20) involved assessment of disclaimers and abandonment of both a location and specific items. In Caballero-Chavez, the defendants hired a 70-year-old woman to transport seven kilograms of cocaine from El Paso, Texas, to Omaha, Nebraska. In Omaha, the woman rented In Omaha, the woman rented rooms 123 and 222 under her name. The defendants arrived at the hotel and paid the woman. She then gave them the keys to the car she had driven and the key to room 222.

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The next day, officers working on a large drug investigation learned from an intercepted call that a Hispanic man staying in room 222 of the hotel would be involved in a drug delivery at 8:00 that evening. When the officers went to the hotel to investigate, they received information that a woman had rented rooms 123 and 222. The officers then watched both rooms. They saw two Hispanic males through the window to room 222 but observed no other activity at either room. The officers later observed two Hispanic males leaving the hotel in the car that the woman had driven, but the officers had not seen anyone leave room 222. The two males in the car returned to the hotel about 35 minutes later and went to the hotel restaurant.

A short time later, the officers decided to contact the occupants of rooms 123 and 222. At room 222, no one responded. At room 123, the officers identified themselves to the woman and obtained consent to search both rooms 123 and 222. The officers found a large roll of cash in room 123 and 7 kilograms of cocaine in the unoccupied room 222. At the hotel restaurant, the officers spoke to the two Hispanic males they had seen earlier in the car. The men denied that they were guests at the hotel and said that they were at the hotel to meet a woman named Maria. The men agreed to show the officers Maria's room at the hotel. On the way to room 123 they agreed to follow the officers to room 222. Outside of room 222 the men "denied that room 222 was theirs, denied they had ever been in the room, and said they did not care whether the officers searched the room because it was not their room." (21) The men also denied ownership of the bags in the room, including the bag in which the cocaine was hidden.

The court examined the totality of the circumstances surrounding the abandonment and took particular note of "two factors: whether the suspect denied ownership of the property and whether he physically relinquished the property." (22) The court affirmed the trial court's denial of the defendants' motion to suppress, holding that the defendants had abandoned any interest in room 222 because of their repeated denials that the room was theirs, that they had ever been in the room, and that anything in the room was theirs. The court also concluded that the abandonment was voluntary and untainted by the initial search of the room and duffle bag based upon the earlier consent from the renter of room 222. (23)

PHYSICAL RELINQUISHMENT

Courts have frequently stated that the Fourth Amendment analysis within the context of abandonment cases is not driven by property law rules. (24) However, the status of any lease or rental agreement associated with the location is important because, as noted by the U.S. Court of Appeals for the Second Circuit in United States v. Parizo, (25) "[p]reliminary to the inquiry into intentional abandonment by the defendant, it must be shown that the defendant had sufficient control over the premises to establish a right to privacy therein." (26)

The U.S. Supreme Court has ruled that under ordinary circumstances, a landlord may not consent to a search of a tenant's property. (27) The Court also has specifically held that hotel employees do not have the authority to consent to police searches of hotel rooms. (28) The general rule in cases involving hotel rooms is that after the room rental period has expired, the hotel guest no longer has a reasonable expectation of privacy in the room. (29) After the rental period, hotel personnel have the authority to give consent to search the room or items within or that have been taken from the room. (30)

In United States v. Croft, (31) the defendant rented a room at a motel on July 8 for 2 days. On July 10, shortly after the noon checkout time, the owner of the motel allowed the local county attorney and county sheriff to search the room the defendant had rented. The lower court did not suppress the evidence discovered during the warrantless search of the room. The U.S. Court of Appeals for the Tenth Circuit found that "after the rental period expires a guest has no right of privacy, there can be no invasion thereof." (32)

At first glance, the general rule as stated above appears to be simple to understand and easy to apply. However, there are nuanced issues that frequently arise in abandonment of location cases that officers need to know, including whether a lease or rental agreement has expired, an abandonment occurred before the expiration of a lease or rental agreement, and, if the subject has been arrested.

Lease Expiration

In cases involving the expiration of leases or rental agreements, the nature of the property involved, (33) the lease terms, (34) the timeliness of rent or lease payment, (35) the practice of a business, (36) the condition of the property, (37) the actions taken by the renter, (38) the actions taken by the property owner, (39) and any statements made in relation to the location (40) are all important factors to consider in determining when a lease actually has expired. (41) This article focuses on examples involving hotels because the most frequently litigated scenarios involve whether abandonment of a hotel room occurred. (42) However, law enforcement officers must be aware that the issues are different than in hotel room situations, and potentially more complex, in cases involving alleged abandonment of homes, condominiums, and apartments because an individual has a significantly higher expectation of privacy. (43) At least one court has held law enforcement to a higher standard of proof of abandonment because the renter's privacy interests are greater in more permanent housing. (44)

In United States v. Parizo, (45) a man and his companion checked into a hotel on April 22. They paid for one night at the hotel in advance in accordance with hotel policy. The desk clerk told them that checkout time was 2:00 p.m. The man subsequently mentioned to both a busboy and a maid that he would be staying at the hotel for a few days; however, neither employee told hotel management of the man's intention to stay beyond the 2:00 p.m., a maid entered the man's room to clean, found a hidden marijuana pipe and marijuana, (46) and informed hotel management of the discovery. The manager ordered the man to be checked out of the hotel and then called the police. In the meantime, the man returned to the hotel and, upon the arrival of law enforcement, was asked to go with the police to the police station. The manager then went to the empty room and found a gun, which the police removed without a search warrant. The U.S. Circuit Court of Appeals for the Second Circuit affirmed the trial court's decision that the defendant had no expectation of privacy in the room. The court stated

[t]he appellant had not communicated to the front desk or to the management any desire to stay beyond checkout time. The room was cleaned and readied for new occupancy. After discovery of the marijuana, the manager attempted to regain his exclusive possession of the room by checking out the appellant, by calling the police, and, subsequently, by searching the room. On the other hand, the appellant on his return to the room may have thought that his conversations with the employees were sufficient to extend his stay and that his term of occupancy had not expired. ... Thus, the facts as found indicate that even if the defendant had not completely vacated the room, the motel manager had the right to enter and examine the room as if it had been relinquished. (47)

In United States v. Owens. (48) the defendant checked into a hotel and paid $28.45 in advance for a 1-night stay. The defendant failed to check out by the usual noon checkout time. Shortly thereafter, hotel employees called the defendant's room to find out if he intended to extend his stay. At approximately 3:00 p.m., and apparently in response to that call, the defendant's companion deposited $100 with the front desk as advanced payment for the room rental. There was a dispute regarding whether the defendant was being charged a weekly or daily rental rate and how phone charges were calculated. If the defendant were a weekly renter, his room would have been paid for through noon on September 13; however, if he were a daily renter, his room would have been paid for through noon on September 12.

On September 11, hotel personnel noticed a large number of calls to the defendant's room and advised hotel security. Shortly after noon on September 12, the defendant was arrested in the hotel parking lot for receiving stolen property. Officers who arrested the defendant called the hotel front desk and told an employee about the arrest and that there was a second person still in the room. The hotel manager told the police that the room had been rented for one person only and that the term of paid occupancy had expired. The defendant, who was handcuffed to a railing outside of the hotel, urged the officers not to enter the room because his girlfriend was sleeping there naked. The officers entered the room, saw the girlfriend in bed; observed marijuana cigarettes, white powder, and drug paraphernalia in plain view; and found 2 ounces of cocaine in a bag in a drawer.

The officers never obtained an arrest or search warrant during their investigation. The U.S. Court of Appeals for the Tenth Circuit addressed the issue of whether the defendant had abandoned his reasonable expectation of privacy in the hotel room by staying in the room after noon on September 12. The court stated that the defendant "testified that he believed his $100 deposit had converted his status to that of a weekly rate tenant. His vigorous attempts to persuade the police not to enter his room further demonstrated that he held a subjective expectation of privacy." (49) The court found this expectation to be reasonable, noting that a reasonable person in Owens' situation might well have expected a weekly rental rate in exchange for a $128.45 advance deposit. All motel guests cannot be expected to be familiar with the detailed internal policies and bookkeeping procedures of the inns where they lodge. Even assuming that Owens was renting on a day-to-day basis, his reasonable expectation of privacy continued past check-out time for at least the short period in question here. On September 9, Owens had remained in his room past checkout time without consequence. Some time after noon, on the 9th, the Inn merely had inquired politely whether he planned to stay an extra day. Eventually, after 3:00 p.m., he had paid in advance for continued occupancy. (50)

The court held that "Owens had a reasonable expectation of privacy in his hotel room and in the contents of the closed bag inside the dresser drawer. For that reason a warrant was required to justify the search, absent application of some exception to the warrant requirement." (51) Officers should be aware that in another case, a court noted that "[a] guest may still have a legitimate expectation of privacy even after his rental period has terminated if there is a pattern or practice which would make that expectation reasonable." (52)

Physical Relinquishment Prior to Lease Expiration

Sometimes, it can be difficult to determine whether an individual has relinquished a reasonable expectation of privacy in a location. It may be hard to determine how long a lease lasts or what the practice is of the hotel, storage area, or other location. Where there is enough evidence that an individual has physically relinquished a location, some courts have found that the location can be considered abandoned even if an existing lease or rental agreement has not yet expired at the time of the search, (53) while other courts have concluded the opposite. (54) Courts have considered the following factors in analyzing whether an area has been physically relinquished: the type of location in question; (55) statements made or actions taken by individuals involved with the location, including making payment; (56) observations made by individuals familiar with the location; (57) and law enforcement officer observations of the location. (58)

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The most notable example of the U.S. Supreme Court's analysis of the issue of abandonment is Abel v. United States. (59) In Abel, the FBI was investigating Abel's involvement in espionage. FBI agents accompanied Immigration and Naturalization Service agents when they executed an administrative deportation warrant and order to show cause on Abel at his hotel. Abel was arrested in the hotel room. He was allowed to dress and gather his belongings from the room. He then checked out of the hotel and turned in his room key. The bill the defendant paid entitled him to occupy the room until 3:00 p.m. that day. However, the hotel's practice was that once a guest turned in the key and took his luggage, the room was considered vacated. In Abel, FBI agents searched the defendant's vacated room without a warrant for approximately 3 hours after he had checked out. The agents found a hollowed-out pencil and a block of wood containing a "cipher pad" the defendant had put in the garbage can while packing his things. With respect to these items, the Court stated it [the search] was entirely lawful, although undertaken without a warrant. This is so for the reason that at the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. ... There can be nothing unlawful in the Government's appropriation of such abandoned property. (60)

In the U.S. Court of Appeals for the Fifth Circuit case United States v. Hunter, (61) personnel at an airfield found a general aviation aircraft on a grassy area about 20 feet off the airport runway at approximately 7:00 a.m. The plane had a flat tire. Airport personnel went to the plane, opened the unlocked door, and found that it contained large plastic covered bales that smelled like marijuana. Law enforcement officers called to the scene at 7:30 a.m. moved the plane and found that it contained 2,081 pounds of marijuana.

At 6:00 a.m., the defendant had called for a hotel courtesy van to pick him up at a restaurant approximately 2.5 miles from the airport. The defendant told the desk clerk at the hotel that his car had broken down. The defendant, who had no luggage, checked in and paid for a room at 6:25 a.m. He made a long distance call between 7:00 a.m. and 7:30 a.m. After paying for the phone call in cash and eating breakfast, the defendant was told that checkout time was at noon. The defendant told the desk clerk he would be out around noon. DEA agents went to the hotel that morning and spoke to the assistant manager. They asked the manager to have the housekeeper find out if the defendant was still in his room. The housekeeper knocked on the door to the room at 11:00 a.m. After receiving no reply to the knock, the housekeeper entered the room where she found a disarrayed bed and the room key on the night stand. She also found two keys on a chain and a single key in the toilet. The agents then entered the room and seized the keys, which later were determined to fit the master lock on the airplane. They also found a fingerprint that matched the defendant's.

The court rejected the defendant's argument that he had not abandoned either the plane or the hotel room and that, therefore, the searches by law enforcement officers were unlawful. With respect to the hotel room, the court stated

[i]t also appears clear that the appellant had given up his rental interest in the motel room. He had paid his bill in full, indicated that he was departing by checkout time that day and left the motel with the room key locked inside the room. The mere fact that the room was entered prior to checkout time to ascertain whether it was occupied, and then searched, does not aid appellant's arguments. (62)

Impact of Arrest

There are a number of reported cases involving searches of hotel rooms rented by people arrested during the course of the rental period. In these cases, the arrestee has failed to pay for the continued rental of the room because of his arrest. Some courts have found such rooms abandoned by the occupant at the end of the time through which the rent had been paid. In those cases, courts have generally found that the defendant's own actions caused the situation to arise, but that did not change the finding that the location was abandoned. (63)

In United States v. Ramirez, (64) DEA agents arrested multiple defendants who had completed a series of cocaine transactions. During the arrests, another DEA agent went to a motel where several of the defendants had been staying. The agent set up surveillance on the room registered to one of the defendants that had been rented through noon the next day. No one was seen either going in or out of the room by either the agent or hotel staff during the evening. Upon returning to the hotel on the checkout day, the agent told the hotel manager that "if the room were later determined to be abandoned, he [the agent] would like to view any personal property." (65) When no one returned to the room and the rental period expired, the manager followed his usual procedure with an abandoned room by examining the property in the room and readying the room for new occupants. The manager notified the agent the following day about the property. The agent retrieved suitcases containing nondrug evidence in the room.

The defendant argued that the DEA agent "improperly exploited an exception to the exclusionary rule" by waiting for the rental period to expire and not getting a search warrant. (66)

The court rejected the defendant's argument and found that

[b]ecause the hotel room was abandoned, appellants had forfeited their reasonable expectation of privacy in it, and a search by the hotel manager did not trespass on appellants' fourth amendment rights. An equally compelling refutation of appellants' position, as will be discussed below, is that the hotel manager was not acting in the capacity of a government agent, and his independent conduct implicated no fourth amendment concerns. (67)

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CONCLUSION

This article has explored Fourth Amendment issues in cases involving the abandonment of locations. To determine whether an individual has abandoned a location, courts will look at whether an individual disclaimed any interest in or physically relinquished the location.

In cases involving the denial or disclaimer of a location, officers should carefully document the disclaimer. Because the government has the burden of proving that an abandonment occurred, officers should clarify exactly what is being disclaimed. The disclaimer should be specific and, if possible, in writing.

In cases involving physical relinquishment of a location, officers always should consider the totality of the circumstances in determining whether a location has been abandoned. Significant factors to consider could include, but are not limited to, the existence of a lease, the type of location, the practice of a lessor, statements made by the defendant, statements made by other people with knowledge of the property, and the condition of the location.

When individuals abandon a location, the protections afforded by the Fourth Amendment no longer apply because they have given up their reasonable expectation of privacy. Such an abandonment must not be the result of improper police behavior. (68) Officers should obtain search warrants whenever possible prior to the search of a location. In situations where obtaining a search warrant is not possible but a location has been abandoned, officers need to remain alert and focused on the details determining and focused on the details determining that the location is abandoned. Officers also must be aware of other related Fourth Amendment issues that exist in these cases but are beyond the scope of this article. Such issues include, but are not limited to, consent searches, private searches, protective sweeps, and exigent circumstances. As in all situations, officers need to be conscientious, diligent, and thorough in documenting the facts that led them to conclude that a location has been abandoned.

Endnotes

(1) Black's Law Dictionary 2 (6th ed. 1990).

(2) Additional information regarding the different contexts in which abandonment issues can arise involving the Fourth Amendment are addressed in John P. Ludington, Annotation, Search and Seizure: What Constitutes Abandonment of Personal Property Within the Rule that Search and Seizure of Abandoned Property Is Not Unreasonable--Modern Cases, 40 A.L.R. 4th 381 (1985).

(3) See T. Kukura, "Trash Inspections and the Fourth Amendment," FBI Law Enforcement Bullentin. February 1991. p. 27-32.

(4) See. e.g., United States v. Hunter, 647 F.2d 566 (5th Cir. 1981) (airplane).

(5) See J.W. Holcomb, "Abandonment of Items Associated with the Person," FBI Law Enforcement Bulletin, August 2007. p. 23-32.

(6) Sec. e.g., United States v. Winchester, 9l6F.2d60l (llthCir. 1990); United States v. Sellers, 667 F.2d 1123 (4th Cir. 1981): United States v. Haynie, 637 F.2d 227 (4th Cir. 1980).

(7) See, e.g., United States v. Stevenson, 39 F.3d 538 (4th Cir. 2005); United States v Ramos, 12 F.3d 1019 (11th Cir. 1994); United States v. Hoey, 983 F.2d 890 (8th Cir. 1993);United States v. Lavasseur, 816 F.2d 37 (2d Cir. 1987); United States v. De Parias, 805 F.2d 1447 (11th Cir. 1986); United States v. Wilson, 472 F.2d 901 (9th Cir. 1972); United States v. Kress 466 F.2d 358 (9th Cir. 1971); United States v. Hocker, 450 F.2d 490 (9th Cir. 1971); United States v. Robinson, 430 F.2d 1141 (6th Cir. 1970); United States v. Parkman, 399 F.2d 559 (D.C. Cir. 1968); United States v. Jordan, 399 F.2d 610 (2d Cir. 1968); United States v. Friedman, 347 F.2d 697 (8th Cir. 1965); United States v. Minker, 312 F.2d 632 (3d Cir. 1963); United States v. Feguer, 302 F.2d 214 (8th Cir. 1962).

(8) See, e.g., United States v. Caballero-Chavez, 260 F.3d 863 (8th Cir. 2001); United States v. Bond, 77 F.3d 1009 (7th Cir. 1996); United States v. Alvarez, 6 F.3d 257 (5th Cir. 1993); United States v. Huffhines, 967 F.2d 314 (9th Cir. 1992); United States v. Rahme. 813 F.2d 31 (2d Cir. 1987); United States v. Ramirez. 810 F.2d 1338 (5th Cir. 1987); United States v. Mulder, 808 F.2d 1346 (9th Cir. 1987); United States v. Rambo, 789 F.2d 1289 (8th Cir. 1986); United States v. Larson, 760 F.2d 852 (8th Cir. 1985); United States v. Rackley, 742 F.2d 852 (8th Cir. 1985); United States v. Garcia, 741 F.2d 363 (11th Cir. 1984); United States v. Lee, 700 F.2d 424 (10th Cir. 1983); United States v. Sledge. 650 F.2d 1075 (9th Cir. 1981); United States v. Diggs, 649 F.2d 731 (9th Cir. 1981); United States v. Hunter, 647 F.2d 566 (5th Cir. 1981); United States v. Callabrass, 607 F.2d 559 (2d Cir. 1979); United States v. Jackson, 585 F.2d 653 (4th Cir. 1978); United States v. Cella, 568 F.2d 1266 (9th Cir. 1978); United States v. Savage, 564 F.2d 728 (5th Cir. 1977); United States v. Akin, 562 F.2d 459 (7th Cir. 1977); United States v. Haddad, 558 F.2d 968 (9th Cir. 1977); United States v. Parizo, 514 F.2d 52 (2d Cir. 1975); United States v. West, 453 F.2d 1351 (3d Cir. 1972); United States v. Edwards, 441 F.2d. 749 (5th Cir. 1971); United States v. Croft. 429 F.2d 884 (10th Cir. 1970); United States v. Cowan, 396 F.2d 83 (2d Cir. 1968); United States v. Granza, 377 F.2d 746 (5th Cir. 1967); United States v. Dargento, 353 F.2d 327 (9th Cir. 1965); United States v. Frank. 347 1:2d 486 (D.C. Cir. 1965).

(9) See, e.g., United States v. Poulsen, 41 F.3d 1330 (9th Cir. 1994); United States v. Reyes, 980 F.2d 281 (8th Cir. 1990).

(10) U.S. CONST. amend. IV.

(11) United States v. Jacobsen, 466 U.S. 109, 113 (1984).

(12) Some courts also address the related issue of standing in abandonment cases. However, the first question to be asked in abandonment cases is whether the individual abandoned the property. If the individual is found to have abandoned the property, the court then may find that he has no standing to challenge a search of the property. See, e.g., United States v. Gilman, 684 F.2d 616, 619 (9th Cir. 1982).

(13.) See, e.g., United States v. Thomas, 451 F.3d 543, 545 (8th Cir. 2006) ("Abandoned property is outside the scope of Fourth Amendment protection because its owner has forfeited any expectation of privacy in it.")

(14.) See, e.g., United States v. Hoey, 983 F.2d 890, 892 (8th Cir. 1993) ("It is well established that the warrantless search of abandoned property does not constitute an unreasonable search and does not violate the Fourth Amendment."); United States v. Levasseur, 816 F.2d 37, 44 (2d Cir. 1987) ("Since one forfeits any reasonable expectation of privacy upon abandoning one's property, a warrantless search or seizure of abandoned property does not violate the fourth amendment.").

(15) See, e.g., United States v. Ramos. 12 F.3d 1019, 1023 (11th Cir. 1994).

(16) United States v. Winchester; 916 F.2d 601, 603 (11th Cir. 1990) (quoting United States v. Pirolli, 673 F.2d 1200, 1204 (11th Cir. 1982)). See also United States v. Diggs. 649 F.2d 731, 735 (9th Cir. 1981): United States v. Wilson, 472 F.2d 901, 902 (9th Cir. 1973) ("The proper test for abandonment is not whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned.").

(17) See, e.g., United States v. Ramos, 12 F.3d 1019, 1023 (11th Cir. 1994) ("Whether abandonment occurred is a question of intent which may be inferred from acts, words and 'other objective facts.'"); United States v. Sampol, 636 F. 2d 621, 683 (D.C. Cir. 1980) ("Abandonment is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts."); United States v. Cowan, 396 F. 2d 83, 87 (2nd Cir. 1968) ("Abandonment does not require performing a ritual; rather, it is a question of intent.").

(18) United States v. Levasseur; 816 F. 2d 37, 44 (2d Cir. 1987).

(19) See e.g., United States v. Cabballero-Chavez, 260 F. 3d 863, 866-67 (8th Cir. 2001) ("we 'look to the totality of the circumstances, noting in particular two factors: whether the suspect denied ownership of the property and whether he physically relinquished the property.'").

(20) 260 F. 3d 863 (8th Cir. 2001).

(21) Id. at 866.

(22) Id. at 867.

(23) Id.

(24) See, e.g., United States v. Levasseur: 816 F. 2d 37, 44 (2d Cir. 1987); United States v. Haynie, 637 F. 2d 227, 237 (4th Cir. 1980); United States v Wilson, 472 F. 2d 901, 902 (9th Cir. 1973) ("The proper test for abandonment is not whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned."); Paraman v. United States, 399 F. 2d 559, 565 (D.C. Cir. 1968) ("We are, of course, mindful of the admonition that it is not necessary to import the subtle refinements of property law into the law surrounding search and seizure.").

(25) 514 F. 2d 52 (2d Cir. 1975).

(26) Id. at 55.

(27) Chapman v. United States, 365 U.S. 610 (1961).

(28) Stoner v. California, 376 U.S. 483 (1964).

(29) See, e.g., United States v. Huffines, 967 F. 2d 314, 318 (9th Cir. 1992); United States v. Rahme, 813 F. 2d 31, 34 (2d Cir. 1987); United States v. Ramirez, 810 F. 2d 1338, 1341 n. 3 (5th Cir. 1987); United States v. Rambo, 789 F. 2d 1289, 1296 n. 7 (8th Cir. 1986); United States v. Larson, 760 F. 2d 852, 854-55 (8th Cir. 1985); United States v. Lee. 700 F. 2d 424, 425-26 (10th Cir. 1983); United States v. Jackson, 585 F. 2d 653, 658 (4th Cir. 1978); United States v. Savage. 564 F.2d 728. 733 (5th Cir. 1977); United States v. Akin. 562 F. 2d 459, 464 (7th Cir. 1977); United States v. Haddad, 558 F. 2d 968, 975 (9th Cir. 1977); United States v. Parizo, 514 F. 2d 52, 54-55 (2d Cir. 1975); United States v. Croft, 429 F. 2d 884, 887 (10th Cir. 1970); United States v. Collins, 515 F. Supp. 2d 891 (N.D. Ind. 2007).

(30) A complete discussion of the authority to consent to a search is beyond the scope of this article.

(31) 429 F. 2d 884 (10th Cir. 1970).

(32)Id. at 887. See also United States v. Parizo, 514 F. 2d 52, 54 (2d Cir. 1975) ("when the term of a guest's occupancy of a room expires the guest loses his exclusive right to privacy in the room").

(33) See, e.g., United States v. Thomas, 451 F. 3d 543 (8th Cir. 2006) (rented mailbox store); United States v. Ramos, 12 F. 3d 1019 (11th Cir. 1994) (condo); United States v. Hoey, 983 F. 2d 890 (8th Cir. 1993) (apartment); United States v. Mulder: 808 F. 2d 1346 (9th Cir. 1987) (hotel room); United States v: Larson. 760 F.2d 852 (8th Cir. 1985) (hotel room): United States v. Gilman, 684 F.2d 616 (9th Cir. 1982) (storage locker); United States v. Haynie, 637 F. 2d 227, 237 (4th Cir. 1980); United States v. Wilson, 472 F. 2d 901 (9th Cir. 1973) (apartment).

(34) See, e.g., United States v. Thomas, 451 F. 3d 543 (8th Cir. 2006); United States v. Ramos. 12 F. 3d 1019 (11th Cir. 1994).

(35) See. e.g., United States v. Hoey, 983 F. 2d 890 (8th Cir. 1993) (apartment rent 6 weeks overdue); United States v. Mulder, 808 F. 2d 1346 (9th Cir. 1987); United States v. Sellers, 667 F. 2d 1123, 1125 (4th Cir. 1981) (defendant 5 months delinquent paying house rent); United States v. Wilson, 472 F. 2d 901 (9th Cir. 1973) (rent 2 weeks late); United States v. Jordan, 399 F. 2d 610. 614 (2d Cir. 1968); United States v. Watson, 783 F. Supp. 258, 263 (E.D. Va. 1992); United States v. Wyler, 502 F. Supp. 959, 967 (S.D.N.Y. 1980).

(36) See, e.g., United States v. Kitchens. 114 F. 3d 29, 32 (4th Cir. 1997); United States v. Ramos, 12 F. 3d 1019 (11th Cir. 1994); United States v. Larson, 760 F. 2d 852 (8th Cir. 1985); United States v. Jordan, 399 F. 2d 610. 614 (2d Cir. 1968); United States v. Watson, 783 F. Supp. 258, 263 (E.D. Va. 1992) ("The presence in the room of many personal items in addition to the hotel's lax enforcement of its check-out policy and Mr. Watson's prior payment history suggest that Mr. Watson intended to continue his stay at the hotel and that it was reasonable for him to intend to continue his stay. The court finds that he did not abandon his room and that, at the time of the search, he had a reasonable expectation of privacy in the room and the personal things he had left in the room.").

(37) See, e.g., United States v. Hoey, 983 F. 2d 890 (8th Cir. 1993); United States v. Larson, 760 F. 2d 852 (8th Cir. 1985) (assistant hotel manager enters room after checkout time and observes empty liquor bottles, prescription pills, keys, and grocery bags containing plastic bags with white powder in them); United States v. Haynie, 637 F. 2d 227, 237 (4th Cir. 1980); United States v Wilson, 472 F. 2d 901 (9th Cir. 1973); United States v. Watson, 783 F. Supp. 258, 263 (E.D. Va. 1992); United States v. Wyler, 502 F. Supp. 959, 967 (S.D.N.Y. 1980).

(38) See e.g., United States v. Hoey, 983 F. 2d 890 (8th Cir. 1993) (defendant has a moving sale and is seen by neighbor leaving apartment); United States v. Larson, 760 F. 2d 852 (8th Cir. 1985) (defendant stays in room after extended checkout time, leaves, and then returns to room 5 hours later without paying for next day's rent); United States v. Sellers, 667 F. 2d 1123, 1125 (4th Cir. 1981) (defendant who was 5 months delinquent paying house rent left a note in the house saying that he was "sorry he could not pay his rent but he told her he was leaving everything in the house and that she could have them" found to have abandoned house); United States v. Wilson, 472 F. 2d 901 (9th Cir. 1973) (defendant leaves apartment door open); United States v. Jordan, 399 F. 2d 610, 614 (2d Cir. 1968); United States v. Wai-Keung, 845 F. Supp. 1548, 1563 (S.D. Fla. 1994); United States v. Wyler, 502 F. Supp. 959, 967 (S.D.N.Y. 1980).

(39) See, e.g., United States v. Hoey, 983 F. 2d 890 (8th Cir. 1993); United States v. Mulder; 808 F. 2d 1346 (9th Cir. 1987); United States v. Larson, 760 F. 2d 852 (8th Cir. 1985): United States v. Gilman. 6841.2d 616 (9th Cir. 1982); United States v. Wilson. 472 F.2d 901 (9th Cir. 1973).

(40) See, e.g., United States v. Haynie, 637 F.2d 227, 237 (4th Cir. 1980); United States v. Mourning, 716 F. Supp. 279. 290 (W.D. Tex. 1989) ("Certain vague statements that the Defendant did not go around the warehouse anymore. whether before or after the search, are insufficient to show an abandonment of the Defendant's interest in that property, particularly when the defendant is the lessee and the rent-payer for that property.").

(41) Many of these factors were present in United States v. Olsen, 245 F. Supp. 641 (D. Mont. 1965). In Olsen, the court found that the tenant had not abandoned the house he rented and that, therefore, agents had not lawfully searched the house with the landlord's consent but without a search warrant. Of particular import in the case was the fact that "both the landlord and the defendant considered the tenancy to be still in effect on February 10th [the day of the search] despite the nonpayment of rent on February 9th." Id. at 644. Additionally, the defendant had paid the utilities through March 8th, retained a key to the house, and still had many personal belongings in the house. The court stated that the failure of the agents "to obtain a search warrant in this case is beyond the court's comprehension." Id. at 645.

(42) United States v. Wyler. 502 F. Supp. 959, 967 (S.D.N.Y. 1980) ("The majority of the precedents in the area of abandonment have arisen in the context of a search of a hotel room.").

(43) In a case involving an apartment, the U.S. Circuit Court of Appeals for the Eighth Circuit stated. "[t]his court has held that an individual has no reasonable expectation of privacy after the expiration of the rental period for a storage locker. In addition, this court has held that one does not have a legitimate expectation of privacy in a hotel room after the rental term has expired. This court does not suggest that there are equivalent privacy interests in storage lockers, hotel rooms, and apartments." United States v. Hoey, 983 F.2d 890, 892 (8th Cir. 1993) (citations omitted).

(44) In United States v. Wyler. 502 F. Supp. 959, 967 (S.D.N.Y. 1980), the court stated, "the premises involved in this case were the defendants' home where it is reasonable for one to expect the maximum degree of privacy. Accordingly, a very heavy burden of justification must be placed upon officials who enter a house or dwelling without authorization. ... " The court later noted "[t] hus, while the transiently occupied hotel room cases may provide guidance by analogy, stricter scrutiny must be applied when the government seeks to demonstrate that a defendant has abandoned his home. In this Court's view, the government has not met its burden here."

(45) 514 F.2d 52 (2d Cir. 1975).

(46) A complete discussion of the legal issues associated with searches conducted by private parties is beyond the scope of this article.

(47) Id. at 55.

(48) 782 F.2d 146 (10th Cir. 1986).

(49) Id. at 150.

(50) Id.

(51) Id.

(52) United States v. Kitchens, 114 F.3d 29, 32 (4th Cir. 1997) (citing United States v.Watson, 783 F. Supp. 258, 263 (E.D. Va. 1992)). See also United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986); United States v. Wai-Keung, 845 F. Supp. 1548, 1563 (S.D. Fla. 1994).

(53) See, e.g., United States v. Akin. 562 F.2d 459, 464 (7th Cir. 1977) (agents walked through room prior to checkout time but waited to search room until checkout time passed to get management consent to search room): United States v. Feguer, 302 F.2d 214. 249 (8th Cir. 1962) ("Abandonment is not foreclosed here until the paid rent period ran out. ... ").

(54) See, e.g., United States v. Hossbach, 518 F. Supp. 759 (E.D. Pa. 1980) (court found there was no abandonment of office suite and that landlord had no right to permit DEA agents to search rented office without a warrant even though rent was in arrears when mail was being received at the office, the phone worked, and there were files and filing cabinets in good order in the business (apartment similarly not held abandoned but storage locker held to have been abandoned)).

(55) See, e.g., United States v. Binder, 794 F.2d 1195 (7th Cir. 1986) (office); United States v. Sledge, 650 F.2d 1075 (9th Cir. 1981) (apartment): United States v. Hunter: 647 F.2d 566, 568 (5th Cir. 1981) (hotel room).

(56) See, e.g., United States v. Winchester, 916 F.2d 601 (11 th Cir. 1990); United States v. Binder, 794 F.2d 1195 (7th Cir. 1986); United States v. Sledge, 650 F.2d 1075 (9th Cir. 1981); United States v. Hunter, 647 F.2d 566, 568 (5th Cir. 1981) (stated he was leaving by checkout time): United States v. Akin, 562 F.2d 459, 464 (7th Cir. 1977) (there was no luggage or suits in the room, the rent had not been paid, and no arrangements had been made to extend stay).

(57) See. e.g.. United States v: Binder. 794 F.2d 1195 (7th Cir. 1986): United States v: Sledge, 650 F.2d 1075 (9th Cir. 1981): United States v. Akin, 562 F.2d 459, 464 (7th Cir. 1977): United States v. Feguer, 302 F.2d 214. 249 (8th Cir. 1962).

(58) See, e.g., United States v. Akin, 562 F.2d 459, 464 (7th Cir. 1977).

(59) 362 U.S. 217 (1960).

(60) Id at 241.

(61) 647 F.2d 566 (5th Cir. 1981).

(62) Id at 568.

(63) See, e.g., United States v. Huffhines, 967 F.2d 314, 318 (9th Cir. 1992) ("[I]t was Huffhines's own conduct in giving a false name to the police that precipitated his arrest and prevented him from returning to the motel to renew the rental period. He cannot rely on his own misconduct to extend the period of his expectation of privacy in the motel room.") (citing United States v. Croft. 429 F.2d 884, 887 (10th Cir. 1970): United States v. Reyes, 908 F.2d 281. 285-86 (8th Cir. 1990)); United States v. Rahme, 813 F.2d 31, 35 (2d Cir. 1987); United States v. Haddad, 558 F.2d 968 (9th Cir. 1977).

However, in at least one case, a court found that the government failed to meet its burden of proving abandonment when the defendant had not paid rent in over a month and was in jail at the time agents searched his apartment without a warrant. See united States v. Robinson, 430 F.2d 1141 (6th Cir. 1970).

(64) 810 F.2d 1338 (5th Cir. 1987).

(65) Id. at 1340.

(66) Id. at 1341.

(67) Id.

(68) United States v. Alvarez, 6 F.3d 287. 289 (5th Cir. 1993).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

By JAYME W. HOLCOMB, J.D., Ed.D.