Tuesday, December 01, 2015

Rosenbaum vs. Martin

And Rosenbaum gets the visiting district judge from Alabama to join her opinion, affirming a denial of a motion to suppress in a child porn case.

It's a fascinating debate between two of our "new" 11th Circuit judges involving whether a lost cellphone has been abandoned. There's all sorts of interplay with the cellphone cases (like Riley) and older 11th Circuit law on standing.

Even though many have claimed that the court has taken a turn to the left with the new judges, this opinion shows pretty definitely that it has not, especially on 4th Amendment issues.

From the majority:
To be clear, we do not suggest a Fourth Amendment jurisprudence of
“finders keepers; losers weepers.” Loss is not the same thing as abandonment.
And loss alone cannot support a finding of abandonment. Nor does the filing of a
claim for a lost item and the replacement of that item with the resulting insurance
money, in and of itself, demonstrate an intent to abandon. Instead, we must view
all of the facts and consider the totality of the circumstances to determine whether
an intent to abandon may objectively be discerned.
And Martin's dissent:
Courts must distinguish between the everyday use of the term
“abandonment” and its use in a context that may result in the loss of Fourth
Amendment protections. Here, Mr. Johnson and Ms. Sparks ended their efforts to
recover their lost cell phone only after several days of active searching. Although
this might colloquially be referred to as “abandonment,” it is not nearly what is
necessary to show abandonment so as to deprive someone of their Fourth
Amendment protections.
But a person may not abandon property for Fourth Amendment purposes by
mere loss, carelessness, or accident, where he has made reasonable efforts to
reclaim the property. See, e.g., Ramos, 12 F.3d at 1026 (11th Cir. 1994) (finding
no abandonment where the defendant left a briefcase in a temporarily leased
condominium a few hours after the scheduled checkout and telephoned the
condominium office the next day to seek the briefcase’s return). In light of their
repeated efforts to reclaim it, Mr. Johnson and Ms. Sparks demonstrated no intent
to abandon the cell phone.4
The fact that they could have conceivably done more is simply
not sufficient, in my view, to constitute abandonment under the Fourth


Anonymous said...

Once a prosecutor, always a prosecutor!

Anonymous said...

Martin is a former prosecutor, too.

Anonymous said...

Judge Martin was both a line AUSA and a U.S. Attorney for the ND of Georgia.

8 of the 11 active judges on the Court are former prosecutors.

Anonymous said...

@ 10:32 AM: Judge Martin was a line AUSA in and the U.S. Attorney for the MD of Georgia, not ND.