W.D.N.Y.: Abandonment during an illegal arrest is subject to suppression

In this dropsy case, the court first finds that defendant’s arrest was without probable cause. A bag of pills was found at his feet. No officer saw him drop it, but that’s the inference the government wants to draw. Abandonment during an illegal arrest is subject to suppression. United States v. Seldinas, 2014 U.S. Dist. LEXIS 164433 (W.D. N.Y. October 23, 2014):

In an attempt to avoid suppression of the bag of pills, the government argues that “[a] warrantless seizure of abandoned property does not offend the Fourth Amendment … especially … when an individual discards property during a police approach or chase”. Government’s Post-Hearing Memorandum of Law [64], p. 5 of 9 (citing California v. Hodari D., 449 U.S. 621 (1991)). However, in Hodari D., the Supreme Court held that an abandonment occurred where, prior to be being seized, the defendant discarded drugs while fleeing from law enforcement. 499 U.S. at 629 (Since “Hodari … was not seized until he was tackled[,] [t]he cocaine abandoned while he was running was in this case not the fruit of a seizure”). See United States v. McCullough, 2013 WL 6022096, *10 (E.D.Tenn. 2013) (“A defendant who abandons contraband prior to his seizure cannot challenge its admission even if the abandonment was prompted by unlawful police conduct”). Here, by contrast, any abandonment of the pills occurred during Seldinas’ seizure. Although Seldinas was not physically restrained at the time he dropped the bag, he was complying with law enforcement’s commands and show of force. See Seldinas’ Memorandum of Law [63], pp. 10-11; Hodari D., 499 U.S. at 626 (“An arrest requires either physical force … or, where that is absent, submission to the assertion of authority”).

The other cases relied upon by the government are equally distinguishable. See Government’s Post-Hearing Memorandum of Law [64], p. 5 of 9 (citing United States v. Welbeck, 145 F.3d 493, 498 (2d Cir.), cert. denied, 525 U.S. 892 (1998) (finding abandonment where the defendant “repeatedly and expressly disclaimed any possessory interest in the Gap bag”); United States v. Washington, 677 F.2d 394, 396 (4th Cir.), cert. denied, 459 U.S. 854 (1982) (“When [the defendant] three times denied that the bag belonged to her, and then specifically stated ‘It’s not my bag, I don’t care what you do,’ the agents could justifiably rely on her statements to think they would not violate her rights by opening the bag”)). Therefore, I conclude that the seized bag of pills is the fruit of Seldinas’ illegal arrest.