June 13, 2012
Abandoned Property & the Fourth Amendment

by Justice Paul E. Pfeifer

The Fourth Amendment to the United States Constitution is the one that prohibits unreasonable searches and seizures. But does that prohibition extend to abandoned property? That’s the issue that we – the Supreme Court of Ohio – recently reviewed in a case that involved a man named Dennis Gould.

When Gould was laid off from his job as a truck driver in December 2005, he moved in with his mother, Sharon Easterwood. At that time, Gould gave Sharon a computer hard drive and told her to keep it and not “let anybody get their hands on it.” Sharon put it in her nightstand.

In May 2006, Gould moved into his own apartment. He took his belongings, but not the hard drive. About a month later Gould’s twin brother, Douglas, told his mother that she should get the hard drive out of her house because it probably contained child pornography. She returned it to Gould.

In August, when Gould’s older brother Gregory moved in with him, Gould stole Gregory’s truck and left Toledo, leaving everything behind. He told no one of his whereabouts.

Gregory eventually sold Gould’s belongings at a garage sale. Before the sale, Sharon retrieved the hard drive.  Shortly after that, she delivered it to Detective Regina Lester in the Special Victims Unit of the Toledo police. Sharon told Lester that she believed Gould had abandoned it and that she didn’t want it in her home because of her suspicions about its contents.

At first, Lester didn’t attempt to access the data on the hard drive, but began efforts to locate Gould. Three months later, Sharon consented to a police search of the hard drive. The police discovered child pornography, including Gould engaging in sexual conduct with the seven-year-old daughter of his former girlfriend.

Gould was ultimately arrested in Michigan and brought back to Toledo. Based on the images on the hard drive, a grand jury indicted him on two counts of rape, one count of gross sexual imposition, six counts of pandering sexually oriented material involving a minor, and five counts of illegal use of a minor in nudity-oriented material or performance.

Gould filed a motion to suppress the evidence, asserting that police had illegally searched the hard drive in violation of the Fourth Amendment. The trial court denied the motion, concluding that Detective Lester “reasonably could have believed that Gould had abandoned any reasonable expectation of privacy in the hard-drive,” so the search didn’t violate the Fourth Amendment.

After a jury trial, Gould was found guilty on all counts. The trial court sentenced him to two concurrent life sentences for the rape convictions, and further sentences for the other charges.

But when the court of appeals reviewed the case, it reversed the conviction and held that the trial court should have suppressed the evidence from the hard drive as the product of an illegal search. The court of appeals concluded that “the state failed to demonstrate by credible, competent evidence that the hard drive was abandoned.”

When the case came before us, we considered this question: Did Gould have a reasonable expectation of privacy in the hard drive at the time the police searched it?

In writing our majority opinion, Justice Terrence O’Donnell noted that the United States Supreme Court “has long held 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.”

There are a number of cases, from several different state and federal courts, that support this position. One such case is from an opinion issued by our court in 1980. In that case we held that the accused, who had dropped his luggage while fleeing from police, could not “object to a search and seizure of property that he has voluntarily abandoned.”

In another case, from a 2010 federal appeals court opinion, a man named William Davis had left a safe with his estranged wife for an extended period of time. The safe contained ammunition and a large quantity of pornographic images of children.

His wife signed an affidavit stating that she had “kicked Davis out” of her apartment after learning that he had sexually abused her daughter and that he had returned to her apartment to retrieve his things but failed to remove the safe. The police later searched the safe with her permission. When Davis filed a motion to suppress that evidence, she testified that he had never told her that he wanted the safe and that she had never prevented him from getting his property from her apartment.

The decision in that case noted that the district court had properly denied the motion to suppress the contents of the abandoned safe.

As in these other cases, the evidence in Gould’s case similarly weighs against a finding that Gould had an objectively reasonable expectation of privacy in the hard drive. He left the hard drive in his apartment with his other things when he stole his brother’s truck and disappeared from Toledo. From the time he left town until his arrest by federal marshals – a span of about ten months – Gould never inquired about the hard drive or attempted to assert control over it. He concealed his whereabouts, and he never knew the hard drive had been removed from his apartment when his brother sold his other things.

As Justice O’Donnell noted, based on Gould’s conduct, he “had no objectively reasonable expectation of privacy in the hard drive because when he relocated to Michigan he abandoned it by leaving it in his Toledo apartment without the ability to exert control over it.” And, as determined by several other courts – including our own – a warrantless search of abandoned property does not offend the Fourth Amendment.

Therefore, by a seven-to-zero vote, we reversed the order of the court of appeals that had ordered the exclusion of the evidence obtained from the hard drive, and we reinstated Gould’s convictions and sentence.

EDITOR'S NOTE: The case referred to is State v. Gould, 131 Ohio St.3d 179, 2012-Ohio-71. Case No. 2010-1315. Decided January 17, 2012. Majority opinion written by Justice Terrence O'Donnell.