finding that the defendants had abandoned their briefcases when, in response to police ques- tions, “they both disclaimed any interest in the briefcases and be- gan to walk away from them”
How later courts described this case
- finding that the defendants had abandoned their briefcases when, in response to police ques- tions, “they both disclaimed any interest in the briefcases and be- gan to walk away from them”
- finding that defendants’ disclaimer of any interest in briefcases and walking away precluded any finding of reasonable expectation of privacy
- finding abandonment where two individuals, in response to police questioning, verbally disclaimed any interest in briefcases and began to walk away from them
- stating "[a] defendant's No. 15AP-1091 12 intent is a question of fact"
Written by the judges who cited it.
The opinion
JOHN R. BROWN, Chief Judge, with whom COLEMAN, SIMPSON, CLARK, INGRAHAM and RONEY, Circuit Judges,
join (concurring):
I join in the Court’s opinion and the decision. Whatever doubt there might reasonably be about the abandonment approach followed by the Court, both as to that theory and generally, all of the doubts are removed by a circumstance not mentioned.
Before any search of the briefcases was made one of the officers saw one of the two defendants furtively dispose of several shotgun shells from his pocket 5 which were then recovered and identified.
When tested in terms of a reasonable basis for the search, not the arrest as a basis for the search, this factor, in the circumstances presented, gave ample grounds to the officers.
True, people may possess shotgun shells and may transport and use them, most often perhaps in the role of sportsmen matching skills against nature’s feathered or other small creatures. But a couple of casual “hippie” dressed persons walking around in busy metropolitan Birmingham would not normally be carrying shotgun shells — certainly not without shotguns. Whatever innocuous *179 inferences the law, with its laudable Fourth Amendment indulgence, might momentarily have to draw were radically changed by active, though furtive, behavior in trying to get rid of the shells, coupled with the even more strange actions in walking away from briefcases they had just previously been carrying. 6
At that stage a prudent officer could reasonably conclude that something was rotten in Denmark.
Adding altogether, at that moment there was reason to believe that the shells and the briefcases were not unrelated. If there were sawed-off guns in the briefcases, it was presumptively a crime. So the decision to search was a reasonable one in the classic statement of the Rule.
Although what was found does not itself justify the search, when what is found is what was suspected I do not consider that the law rejects the common experience of mankind which — in its everyday judgments having momentous consequences — at least treats what is discovered as a factor in determining the reasonableness of that which was anticipated.
The prudent officer must first be a prudent man. In testing the officer’s on-the-spot judgments we should not deny him the judgmental processes of the prudent man.
I would put it on the basis of a reasonable search as of the moment of the search and avoid the problems of search incident to arrest, abandonment or the like.
. The panel opinion described it in this way:
. “Then Officer Trimm requested that each defendant produce his draft card. When both defendants denied possessing Selective Service cards, they were placed under arrest and charged with violating 50 U.S.C.A.App. § 462. As the defendants were being placed in the patrol car Officer Pitts noticed one of the defendants withdraw a number of shotgun shells from his pocket and throw them on the ground.”
The defendants do not challenge the factual accuracy of the Government’s brief to the panel (p. 3) :
“As they were being placed in the car, one of the officers observed one of the defendants throwing some shotgun shells to the ground. Defense counsel clearly established that the shells were found prior to the search of the briefcases.”
Nor do they as to the supplemental brief en banc (p. 3) :
“As defendants were being placed in the patrol car, Reese threw some shotgun shells to the ground. Thereafter, while defendants were sitting in the car, the officers returned to the briefcases and opened them, finding a shotgun in each.”
. The Court casts this in terms of search and seizure abandonment. I think it is easier, better and more realistic to avoid the intricate nuances of this standing concept by treating this activity for what it really is — strong, immediate evidence of conduct which may properly give rise to a conclusion that a crime is taking place.