E.D.Mich.: Govt assertion house was abandoned wasn’t reasonable; yard kept, trash bin out front, van in driveway

The officers weren’t reasonable in their conclusion that the house they searched was abandoned. There was no property record check and the yard was “reasonably kept” with a trash bin out for collection, bars on the windows, and a white van in the driveway. United States v. Spence, 2017 U.S. Dist. LEXIS 31034 (E.D. Mich. March 6, 2017) (see Treatise § 19.07):

The Court finds that, based on the totality of the circumstances, the officers were not reasonable in their belief that 8337 Almont was abandoned. The officers had not previously observed 8337 Almont and had no prior knowledge of the property. The officers did not review readily available ownership records or Spence’s identification. Photographs of the house’s exterior introduced by the Government show the following: a reasonably kept front yard; a garbage bin left in the front for collection; intact, closed windows with bars; closed doors with bars; and a white van parked in the driveway. Gov’t’s Exhs. 1, 2, 7. The van parked in the driveway, the garbage bin out for collection, as well as the furnishings, clothing, and personal property inside the house are all evidence of habitation. Spence’s bedroom furnishings and belongings are also indications that the house was not abandoned. The closed doors and windows with bars are evidence that the putative owner or lessee had taken measures to secure the house from intruders.

The Government has not shown that the officers observed clear, unequivocal and unmistakable evidence that the home had been abandoned, and the Court concludes that the Government has not met its high standard. In this case, based on a one-time look at the exterior and interior of 8337 Almont, a reasonably cautious officer would have perhaps assumed that the occupant of the house was living in impoverished conditions, but not that he had clearly manifested an intent to relinquish his expectation of privacy in the home. Having already cleared the house and arrested Spence, and having at least five officers on the scene, a reasonably cautious officer would have then obtained a search warrant in order to return to the house to search for the handgun.