Is it garbage or evidence? Don’t throw away your right against illegal search & seizure
Our criminal defense lawyers represent individuals and persons charged with the illegal possession of drugs, firearms, and handguns in Pennsylvania and New Jersey. A lot of this criminal practice focuses on the concept of illegal search and seizure, a person’s rights under the 4th Amendment to the United States Constitution and the exceptions to it.
The exceptions to your constitutional rights often work against your right against search and seizure. They are, therefore, very important to a case especially if you or a friend is facing a potential state prison sentence. One important concept and exception to an illegal search is abandonment (a.k.a. your garbage).
Is it a search if you throw it in the garbage?
In most situations, when a police officer observes or retrieves abandoned property, it is not considered a search under the Constitution. A person’s constitutional rights do not apply unless his or her criminal defense lawyer can establish that the item retrieved was actually retrieved following the search. If, for example, a person is arrested prior to the “throw away” and the arrest was illegal, then it is considered a search. In addition, if the evidence was abandoned in circumstances where the defendant was reacting to illegal police stop, the retrieval or observations of the object throw away may be tainted by the illegal conduct of the police officer.
Courts & Abandonment – When do your constitutional rights kick in?
The Supreme Court has ruled that coerced abandonment can be evoked where a person was “seized” or where a reasonable person subject to police pursuit would have concluded that police had in some way restricted his or her liberty. In another Supreme Court case however, (California v. Hodari), the Supreme Court ruled that no seizure occurs under the 4th Amendment where a person is not physically seized and does not stop before he discards evidence even though police actually used physical force and a show of authority in attempting to make the stop.
Pennsylvania, however, has ruled that an unlawful pursuit by a police officer of a suspect requires suppression of an item thrown out. If the police officer however is merely approaching the defendant without making any attempt to stop or search, the abandonment of contraband is not coerced, and therefore the 4th Amendment would not apply to the situation. This is a very important distinction which could make a huge difference in a criminal case!
Who has the burden of proof to establish abandonment?
The burden is always on the prosecution to prove that the abandonment actually occurred if a person leaves a laptop computer on a bench and police (without probable cause to believe the item is stolen) seizes the item, this is not abandonment and police do not have probable cause to even establish the search.
Why you need to understand abandonment and how it relates to items like guns and narcotics?
Abandonment is an important concept, and you must understand that throwing away an item potentially negates your constitutional rights against illegal search and seizure. Throwing away any item like an illegal gun or any gun, legal or non-legal, in addition to any type of drugs, is not advisable as it could have legal consequences. Guns and narcotics are not like other household items and are highly regulated in both Pennsylvania and New Jersey. If you do want to discard your handgun or any type of firearm, you should sell it to a licensed dealer or bring it to your local police station so they may dispose of it. The same rule applies to drugs and narcotics. Your local pharmacy has disposal containers or at least should be able to provide you with information regarding how to dispose of unused medications and other drugs.
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