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Attenuation of Taint — Abandonment of Property — Thrown to Ground during Illegal Patdown

State v. Robert F. Hart, 2001 WI App 283
For Hart: John Deitrich

Issue: Whether a person voluntarily abandons property when throwing it to the ground during an illegal pat-down.

Holding:

¶24. Our own research has uncovered cases that are fatal to the district attorney’s contention. In Lawrence v. Henderson, 478 F. 2d 705, 708 (5th Cir. 1973), the court held that drug evidence found in a police car after an unlawful arrest could not have been voluntarily abandoned because the ‘abandonment’ was compelled by the police misconduct. Two Indiana cases have concluded that where an improper frisk forced the defendant to abandon drugs, the evidence was not admissible. See Swanson v. State, 730 N.E.2d 205, 210 (Ind. Ct. App. 2000), transfer denied by 741 N.E. 2d 1253 (Ind. Sept. 5, 2000); State v. Pease, 531 N.E.2d 1207, 1210-12 (Ind. Ct. App. 1988); cf. In re Welfare of M.D.B., 601 N.W.2d 214, 218 (Minn. Ct. App. 1999) (where during course of illegal frisk defendant’s gun fell to the ground, such evidence was suppressed), review denied (Jan. 18, 200).¶25. We conclude that Hart acted in response to the illegal pat-down. There was no distinct, separate crime or intervening illegal activity which attenuated the link between the discovery of the marijuana pipe and the illegal search. Therefore, the district attorney’s abandonment theory cannot stand under these facts.

However, a chemical test for blood is upheld, even though conducted after the illegal pat-down, because the police already had probable cause to believe the person was drunk; the test, that is, was based on evidence not connected to the pat-down. ¶27.)For additional authority re: property not considered abandoned when left in squad by someone illegally seized, see, State v. Askerooth, MN SCt No. C6-02-318, 6/17/04:

The record is silent as to exactly when Askerooth placed the methamphetamine under the seat of the squad car. But we do know from the complaint and from the district court’s findings of fact in the bench trial that Askerooth abandoned it because he was scared that the police would find it and thus the abandonment was not accidental. There appears to be no feasible way the methamphetamine would have been discovered but for the illegal seizure. Because Askerooth’s abandoning of the methamphetamine is the result of an illegal seizure, we conclude that the methamphetamine must be suppressed. Therefore, we hold that the district court erred when it denied Askerooth’s motion to suppress the methamphetamine discovered in the back seat of Schmidt’s squad car.

There is, to be sure, contrary authority, e.g., State v. Knox, 160 Or App 668, 676, 984 P2d 294 (1999), but the rationale (“His transportation to the police station during which his alleged deposit occurred was an event that intervened between the illegal search and seizure and the seizure at issue here”) is unconvincing: transport is a continuation of the illegal seizure. The larger principle may be efficiently expressed this way: “An abandonment that results from police misconduct is not valid,” U.S. v. McDonald, 100 F.3d 1320, 1328 (7th Cir. 1996); and: “abandonment … is considered involuntary if it results from a violation of the Fourth Amendment,” U.S. v. Flynn, 309 F.3d 736, 738 (10th Cir 2002). Thus, immediately tossing contraband “en route to the officer” who without cause ordered him to “come here” wasn’t mediated by anything that would remove the taint of the illegal order,State v. Crandall, Or App No A119207, 2/16/05. It should also be kept in mind that abandonment occurring before the person has been “seized” by the police (which in turn means that the person must have submitted to assertion of police authority) is not subject to suppression.

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