(dissenting):
I cannot agree with my colleagues that there was any unconstitutional search and seizure in this case.
It seems to me that in determining the legality of the alleged search and seizure, three questions are presented: (1) whether there was in fact and in law an abandonment of the property in question, (2) whether the hallway where the alleged search and seizure took place was a constitutionally protected area, and (3) whether under the circumstances the appellee had a reasonable expectation of privacy.
Relying upon Peyton v. United States, D.C.App., 275 A.2d 229, 230 (1971); Friedman v. United States, 347 F.2d 697, 704 (8th Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965); United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973), my colleagues have concluded that the evidence in the case at bar was insufficient to establish that the appellee intended to abandon the television set in the hallway. The cases relied upon by the majority are distinguishable on their facts. In Peyton v. United States, supra, it was claimed, as a defense to a charge of larceny, that cartons of matches unloaded from a delivery truck and placed on the sidewalk at the front of a drug store had been abandoned. This court held that there was no evidence whatsoever that the property had been abandoned by the drug store.
Involved in Friedman v. United States, supra, was the question whether property, left in leased premises after the lessee quit *277the premises owing back rent, had been abandoned. Holding that there had been an abandonment of such property, the court relied principally upon the holding in a civil action for replevin.1 In this connection, however, it has been repeatedly pointed out that the “subtle distinctions . of private property law” are not to be applied to the determination of search and seizure issues. Smith v. United States, D.C.App., 292 A.2d 150, 151 (1972); Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697 (1960); United States v. Edwards, 441 F. 2d 749, 753 (5th Cir. 1971).
In United States v. Colbert, supra, the question presented was whether the defendants had abandoned two briefcases left by them on the public sidewalk as they were approached by police officers for questioning. Holding that there had been a pre-search abandonment of the briefcases which deprived the defendants of standing to complain of the search and seizure of the articles, the court said:
The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. . . . [Id., 474 F.2d at 176; emphasis supplied.]
The majority opinion places great stress upon the necessity of establishing an intent to abandon. This court, however, has made it clear that the question of the defendant’s intent is irrelevant. Thus, in Smith v. United States, supra, where the appellant threw away a revolver as he was being pursued by a police officer and the defense contended that he had not abandoned it but intended to return and retrieve it, this court declared that:
On the abandonment issue, the question of whether or not appellant intended eventually to return and retrieve the revolver is irrelevant. By removing this article from his coat pocket and tossing it into the street, he had obviously given up its possession by leaving it in a public place where it might have been discovered and picked up by any passerby. . . . [Id., 292 A.2d at 151.]
Other cases decided by this court, none of which are mentioned in the majority opinion, also involved the question of abandonment. In United States v. Smith, D.C.App., 293 A.2d 856 (1972), the defendant was observed with a companion in a public toilet stall. When the officers ordered the two men out of the stall, a pouch containing articles usually employed for the injection of narcotics was dropped on the floor. The subsequent search and seizure of this pouch was held permissible on the ground that the pouch was abandoned property. Somewhat to the same effect was Campbell v. United States, D.C.App., 273 A.2d 252 (1971) (cited for different point in the majority opinion). In that case appellant and a companion were observed on a public sidewalk. Appellant was holding a screwdriver and his companion was carrying a television set. As police officers approached, appellant dropped the screwdriver and this court said in a footnote at 253 that the screwdriver was clearly abandoned property, properly subject to seizure by the police. And in Brown v. United States, D.C.App., 261 A.2d 834 (1970), this court upheld the seizure of a shopping bag which the appellant had dropped at the approach of the police, holding that “the officers’ recovery of the bag was not a ‘seizure’ in the fourth amendment sense, but merely a retrieval of abandoned property.” See also Keiningham v. United States, 113 U.S.App.D.C. 295, 307 F.2d 632 (1962); Lee v. United States, 95 U.S.App.D.C. 156, 221 F. 2d 29 (1954).
*278In United States v. Brown, 473 F.2d 952 (5th Cir. 1973), the defendant buried, under a chicken coop on an abandoned farm, a suitcase containing the loot from a bank robbery. Acting on information received from other sources, the FBI conducted a warrantless search on the farm and recovered the suitcase. The court, quoting with approval from United States v. Colbert, supra, sustained the search and seizure of the suitcase, saying that :
We construe the leaving of the suitcase buried in the chicken coop in an open field as an abandonment of it by Brown, and hold that the officers were justified in opening it without first obtaining a warrant. [Id. at 954; footnote omitted.]
In United States v. Edwards, supra, the defendant, pursued by police officers in a wild automobile chase, failed to negotiate a turn, stopped the automobile, and ran away leaving the lights on and the motor running. The police conducted a warrantless search of the vehicle and seized contraband whiskey. The court held that the defendant had no standing to question the legality of the search and seizure as he had abandoned the car, thus forfeiting “any reasonable expectation to a continuation of his personal right against having his car searched . . . .” [Id., 441 F.2d at 753.]
Generally, all of the cases involving the concept of abandonment find their support in the Supreme Court decision in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), where the defendant, pursued across a field by revenue officers, threw away a jug of moonshine whiskey. Holding admissible in evidence the testimony of the officers as to the contents of the jug, the Court stated at 58, 44 S.Ct. at 446:
It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure. The defendant’s own acts, and those of his associates, disclosed the jug . and there was no seizure in the sense of the law when the officers examined the contents . . . after it had been abandoned. .
From all of the foregoing, it appears that the question of the accused’s intent with respect to the television set (upon which the majority opinion apparently places paramount reliance) is of little consequence. Certainly it can hardly be said that the accused in United States v. Edwards, supra, intended to forever relinquish his property rights in a valuable motor vehicle or that the accused in United States v. Brown, supra, did not intend to return and retrieve the loot that he had so carefully concealed under the chicken coop. The common factor in those cases, and the appropriate one for consideration in the case at bar, is that the accused relinquished, even though for a short while, his possession and control of the property. Under the circumstances it can properly be said that the property was “abandoned” and that the accused forfeited any Fourth Amendment right he may have had to be secure in such property.
An additional consideration in the determination of an accused’s right to claim the protection of the Fourth Amendment is the question of the place where the alleged infringement took place. The Supreme Court has held that
What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. [Footnote omitted; Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966).]
In People v. Carroll, 12 Ill.App.3d 869, 299 N.E.2d 134 (1973), cert. denied, 417 U.S. *279972, 94 S.Ct. 3180, 41 L.Ed.2d 1144 (1974), the police obtained a house key from a jacket discarded by the accused at the scene of a robbery. The key was thereafter tested in the lock of a door to the apartment where the accused resided. Because the door was accessible from a common hallway of the building it was held that “A police officer who is in the common hallway of a building is not in a constitutionally protected area.” Id., 299 N.E.2d at 139.
In Commonwealth v. Battle, 304 N.E.2d 202, 205 n.7 (Mass.App.1973), aff’d on further appeal, 313 N.E.2d 554 (Mass.App.1974), the defendant was pursued by a police officer into the hallway of an apartment building and was seen to throw something to the floor, which was later determined to be four bags of heroin. In addition to holding that the defendant had “voluntarily given up all control over the bags and could have no expectation of privacy with respect thereto” (citing inter alia, Hester v. United States, supra, and United States v. Edwards, supra), the court said that the defendant had no right of privacy in the hallway.
However, it should be noted that the viability of the concept of a constitutionally protected area has been considerably weakened by the Supreme Court’s decision in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967), where it was said:
[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. . . . [Citations omitted; id. at 351—52, 88 S.Ct. at 511.]
In his concurring opinion in that case, Mr. Justice Harlan elaborated on the concept expressed in the majority opinion saying:
As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. [Id. at 361, 88 S.Ct. at 516.]
Thus, the current view is that the protections of the Fourth Amendment are personal and are not tied to any property concepts. The courts have increasingly applied the test of whether the accused’s “reasonable expectations of privacy” have been unreasonably disturbed by the activities of the police. In determining whether an accused has a reasonable expectation of privacy under a given set of circumstances, it must be remembered that “[w]hat a person knowingly exposes to the public is not a subject of Fourth Amendment protection.” Katz v. United States, supra at 351, 88 S.Ct. at 511.
In United States v. Colbert, supra (quoting in the majority opinion), the court held that by walking away from their briefcases and disclaiming any interest in them, the defendants had abandoned their property and “could entertain no reasonable expectation of privacy in them.” In United States v. Edwards, supra, the court held that the defendant had abandoned his vehicle and could have “no reasonable expectation of privacy with respect to his automobile. . . .” [Id. at 751.]
*280The concept of no-reasonable-expectation-of-privacy has been particularly applied in cases involving the seizure of articles placed in public trash cans, the courts holding that the defendants had surrendered their privacy with regard to such articles. United States v. Mustone, 469 F.2d 970 (1st Cir. 1972); United States v. Jackson, 448 F.2d 963, 971 (9th Cir. 1971). It has also been applied where the defendant’s suitcase, containing heroin, had been placed either by himself or by his girl friend in the home of the girl friend’s stepfather. It appeared that the defendant was not a guest in the home, and that his girl friend was residing there only temporarily. The heroin was discovered when the stepfather became suspicious and notified the police. The court held that there was no violation of the defendant’s Fourth Amendment rights since by leaving the suitcase at the residence he “could have no reasonable expectation of privacy.” State v. Edwards, 5 Wash.App. 852, 490 P.2d 1337 (1971).
Determining that the defendant forfeited his right, under the Fourth Amendment, to complain of a search and seizure of personal property left by him when he vacated rented premises, the Ninth Circuit Court of Appeals stated:
The proper test for abandonment is not whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned. . . . [United States v. Wilson, 472 F.2d 901, 902 (9th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 176, 38 L.Ed.2d 116 (1973).] [Citations omitted.]
From all of the foregoing the conclusion seems compelled that the conduct of the appellee in placing and leaving the television set in a common hallway when he departed the building, thus relinquishng his possession and control over it and exposing it to public scrutiny, constituted an abandonment of the property in contemplation of law. Because the television set when first seen by police was not in a constitutionally protected area, appellant could not have had at that time any reasonable expectation of privacy. Consequently, the order of the trial court, suppressing as evidence the television set, should not be permitted to stand.2 Accordingly, I respectfully dissent.
. Linscomb v. Goodyear Tire & Rubber Co., 199 F.2d 431 (8th Cir. 1952).
. The doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), simply has no application. What is involved here is a search and seizure of property and not a search of the person.