CA7: Despite govt’s not raising abandonment, the court finds it anyway

The government conceded no abandonment and sought other exceptions to the warrant requirement. The court of appeals finds abandonment anyway because the record is clear. In addition, an allegation of a Franks violation fails without alleging that probable cause does not remain without it is insufficient, and there is no Franks violation. United States v. Edwards, 2022 U.S. App. LEXIS 13122 (7th Cir. May 16, 2022):

Based on the facts of this case, it qualifies as exceptional. In failing to challenge Edwards’s privacy interest in the Outlander, the government presents alternate reasons for affirmance that would require us to examine unresolved nuances to the Fourth Amendment constitutional doctrine. Yet, the record provides a clear disposition under our established constitutional precedent. As such, we exercise our discretion to forgive the forfeiture and avoid the needless exploration of unchartered constitutional matters which could bring unintended consequences for future litigants.

Presented with the magistrate judge’s well-reasoned report, we agree with its recommendation regarding abandonment. Law enforcement was wise to seek a search warrant for the Outlander in the first instance. It is best practice to rely on a warrant instead of gamble on a court’s evidentiary determination. But the record here shows Edwards had no expectation of privacy in the abandoned Outlander. Handed a peculiar set of facts, the district court did not err when it denied Edwards’s motion to suppress, albeit on different grounds than we affirm on today.