01-1497 STATE V. K.W.

State: Florida

Court: Florida Third District Court

Docket No: 01-1497 STATE V. K.W.

Case Date: 12/26/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002 THE STATE OF FLORIDA, Appellant, vs. K.W., a juvenile, Appellee. ** ** ** ** ** CASE NO. 3D01-1497 LOWER TRIBUNAL NO. 01-1646

Opinion filed December 26, 2002. An appeal from the Circuit Court for Dade County, Florida, Mindy Glazer, Judge. Richard E. Doran, Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee. Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellee.

Before GERSTEN, and FLETCHER, JJ., and NESBITT, Senior Judge.

ON REHEARING DENIED PER CURIAM. The State's Motion for Rehearing of this court's opinion filed September 30, 2002, is denied.

State v. K.W., a juv Case No.: 3D01-1497

NESBITT, Senior Judge, specially concurring. I concur with the majority decision, but write separately to explain why I believe the trial court properly granted the juvenile's motion to suppress. While I do not question

consideration of California v. Hodari, 499 U.S. 621(1991), I conclude affirmance is nonetheless mandated, where the boy shed his shorts on his own property and the shorts were immediately placed in the family washing machine. Under the facts at hand, I find that O'Shaughnessy v. State, 420 So.2d 377(Fla. 3d DCA 1982), as cited by the juvenile, supports the conclusion that the shorts should not be viewed as abandoned property subject to police inspection. [T]he test to be applied in determining whether a person has abandoned property is an objective one--the words used, the conduct exhibited, and other objective facts such as where and for what length of time the property is relinquished and the condition of the property. United States v. Kendall, [655 F.2d 199 (9th Cir.1981) ] supra, United States v. Williams, 569 F.2d 823 (5th Cir.1978); Morton v. State, [284 Md. 526, 397 A.2d 1385 (1979) ]. The burden is on the state to establish abandonment and it has been said that the proof thereof must be by 'clear, unequivocal and decisive evidence.' O'Shaughnessy v. State, 420 So.2d at 379.

When

addressing

an

abandonment

issue,

the

question

is

whether, under the totality of the circumstances, a defendant 2

has a reasonable expectation of privacy in the invaded property. See Kelly v. State, 536 So.2d 1113 (Fla. 1st DCA 1988). "Whether property has been 'abandoned' for search and seizure purposes is viewed primarily as a question of intent, to be inferred from the words and actions of the parties and other circumstances surrounding the purported abandonment." 1114. Kelly, 536 So.2d at

See State v. Kennon, 652 So.2d 396, 397-98 (Fla. 2d DCA

1995)(citing 1 Wayne R. LaFave, Search and Seizure

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