State v. Rynhart

THORNE, Judge

(concurring and dissenting):

T20 I concur with the majority's conclusion that the trial court erred in admitting the evidence under the emergency aid doe-trine. However, we part ways when the majority concludes that Rynhart maintained a reasonable expectation of privacy in the van and its contents when, following a single car accident, she left it, unsecured and parked on property not owned by Rymhart.1 My reasons for dissenting are threefold: (1) The majority, in summarily deciding that Rynbart did not abandon her expectation of privacy, relies on a series of cases that have little or nothing to do with the issue of abandonment; (2) the abandonment standard relied upon by the majority is actually a standard applicable to property law and it flies in the face of widely accepted abandonment analysis for Fourth Amendment purposes; and (8) even under the existing Utah standard, Rynhart abandoned her subjective expectation of privacy.

121 The majority, in drawing its conclusion, relies on a series of cases found in State v. Bissegger, 2008 UT App 256,M%41 18-15, 76 P.3d 178. However, not only did the Bisseg-ger court cite these cases for a different proposition altogether, see id. at TT9-11, none of the cited cases addresses the abandonment of a legitimate expectation of privacy. See United States v. Buchner, 7 F.3d 1149, 1154-55 (5th Cir.1998) (addressing the seope of third party consent and probable cause to search); United States v. Welch, 4 F.3d 761, 765 (Oth Cir.1998) (addressing the scope and effect of third party consent to search); Unmited States v. Salazar, 805 F.2d 1394, 1396-98 (9th Cir.1986) (addressing a car passenger's standing to object to a search and the scope of the automobile exception to the Fourth Amendment's warrant requirement), overruled by implication by United States v. Lopes-Angulo, 1992 LEXIS 26380, *2 (Oth Cir. October 8, 1992); State v. Manke, 181 Ill. App.3d 374, 180 Ill.Dec. 192, 537 N.E.2d 13, 15 (1989) (addressing a passenger's standing to object to an automobile search, as well as the voluntariness of the driver's consent to a search); State v. Frie-*821del, 714 N.E.2d 1231, 1240 (Ind.Ct.App.1999) (addressing the scope and effect of a car owner's consent to search an automobile on a passenger's property contained within the car)2 State v. Armendares, 188 Mich.App. 61, 468 N.W.2d 898, 900-01 (1991) (examining a passenger's standing to object to a search of his personal belongings found in the car and concluding that the passenger's belongings were subject to search pursuant to the automobile exception to the Fourth Amendment warrant requirement); State v. McCarthy, 258 Mont. 51, 852 P.2d 111, 113-14 (1993) (addressing the scope of the automobile exception and its applicability to containers and other objects found within the car to be searched); Arnold v. Virginia, 17 Va.App. 318, 487 285, 288 (1998) (addressing a person's standing to object to searches of their own property, but disposing of the argument under the plain view exception to the Fourth Amendment warrant requirement).

T 22 In relying on these cases, the majority mistakenly focuses its attention on the existence of a passenger's legitimate expectation of privacy in personal belongings located in a vehicle. From the aforementioned cases, clearly cited in Bissegger, there is no question that passengers in automobiles may possess a legitimate expectation of privacy in their own belongings located in a vehicle. See also Wyoming v. Houghton, 526 U.S. 295, 308, 119 S.Ct. 1297, 1302, 148 L.Ed.2d 408 (1999) ("Passengers, no less than drivers, possess a reduced expectation of privacy with regard to property that they transport in cars, which 'trave[l] public thoroughfares." ") (alteration in original) (citation omitted).

123 However, these cases do not support the conclusion that Rynhart maintained a legitimate or reasonable expectation of privacy in either the van or the purse.3

124 Instead, our analysis should follow either United States v. Barlow, 17 F.8d 85 (5th Cir.1994), or United States v. Oswald, 783 F.2d 668 (6th Cir.1986), in addressing this issue.4 In Barlow, following a robbery, *823a police officer followed the robber's escape path. See Barlow, 17 F.3d at 87. Along this path, the officer discovered "a car parked at the end of a street, away from any businesses and pointed toward the freeway." Id. The officer approached the car and found that it was unlocked, that the engine was warm, and that a key was in the ignition. See id. The officer then reported the car's license plate number and was informed that the listed owner claimed "no longer to own the car." Id. The officer then looked in the car in an attempt to identify the current owner. See id. He opened the glove compartment and found a wallet, Barlow's identification, and some .38 caliber bullets. See id. Soon thereafter, the officer caught up to Barlow, arrested him, and, during a search incident to the arrest, discovered a loaded .38 caliber pistol. See id. Barlow moved to suppress the evidence discovered during the officer's search of the car, which the trial court denied. See id.

125 On appeal, Barlow renewed his suppression argument. See id. The court, in analyzing his claim, set forth the following standard to apply when analyzing abandonment claims:

Under Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967), no warrantless search is lawful if the accused manifested a reasonable expectation of privacy in the object searched. One cannot, however, manifest a reasonable expectation of privacy in an item onee it has been abandoned. The test for determining when an object has been abandoned is one of intent, which "may be inferred from words spoken, acts done, and other objective facts." The accused need not have abandoned the searched item in the strict property sense, when an intent to relinquish ownership must be shown; merely an intent voluntarily to relinquish his privacy interest is sufficient. A defendant has abandoned his reasonable expectation of privacy when he leaves an item in a public place.

Barlow, 17 F.3d at 88 (citations omitted). In applying this standard, the court determined that "it was reasonable [for the officer} to assume that the car had been abandoned, and the officer was justified in searching the car to identify its owner." Id. In so conelud-ing, the court stated that "[t]he only relevant *824facts in determining the reasonableness of Barlow's privacy expectation are the location of the vehicle, its condition, the time ..., and other factors that might have indicated an intent to relinquish ownership." Id. at 89.5

26 In Oswald, the defendant's car "burst into flames" while he was driving through rural Tennessee. Oswald, 788 F.2d at 664. The defendant pulled the car to the roadside and leapt from the car, leaving the key in the ignition and a briefcase full of cocaine in the trunk. See id. A passing motorist stopped and offered to help, however, the defendant instead asked the driver to take him to a telephone. See id. The defendant then left the scene in the car of the passing motorist, an act that was witnessed by a number of others in the area. See id. Soon thereafter, local fire and police officials responded to the burning car, and, after the flames were extinguished, the police officer searched the car, finding, among other things, the case containing the cocaine. See id. at 664-65.

127 The officer transferred the items he had found to his patrol car's trunk, took the key (and the steering column to which the key was fused after the fire) and continued prosecuting his duties. See id. at 665. Approximately two hours later, knowing full well that the car's owner or driver had neither reported the fire, nor returned to the scene, the officer began to search the items collected from the car. See id. Among the belongings, the officer first discovered the defendant's identification, and then the officer pried the briefcase open, discovering a large quantity of cocaine. See id. Some time later, the defendant was arrested and charged with possession with intent to distribute, whereupon he moved to suppress the evidence pulled from his car. See id. The trial court denied the motion, and the defendant entered a conditional guilty plea. See id.

28 On appeal, the defendant renewed his argument. See id. The court, in examining the issue, stated, "[wlhether property has been 'abandoned,' in this sense does not depend on where legal title rests, or whether one asserting a Fourth Amendment right has a legally enforceable possessory interest in the property; the question, rather, is whether the person claiming the protection of the Fourth Amendment 'has a legitimate expectation of privacy in the invaded place."" Id. at 666 (quoting Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)). The court further stated that "[nlot only will privacy expectations vary with the type of property involved, but they will vary with the location of the property." Id. at 666-67 (citation omitted); see Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924) (establishing the "open fields" doctrine, wherein Fourth Amendment protections are diminished in open fields). Thus, "[olne who [chooses] to leave luggage in an unlocked burned-out automobile at the side of a highway in the country can fairly be thought to have a much lower expectation of privacy." Oswald, 783 F.2d at 666. Moreover, the fact that "the person happens to be guilty of a crime" does not change the fact that it is reasonable to conclude that a person is considered to have abandoned any reasonable expectation of privacy when they fail to come forward within a short, but reasonable time to claim their property. Id.; see United States v. Ramapuram, 682 F.2d 1149, 1155 (4th Cir.1980) ("It is sufficient here to observe that whatever expectation of privacy attends a closed but unsecured 'effect' generally is diminished where the 'effect' itself is placed in an area totally without the protection of the Fourth Amendment such as in an open field.").

129 In conjunction with Barlow and Oswald, I also believe Ramapuram to be instructive, not, however, on the issue of abandonment, but instead regarding the existence of a reasonable or legitimate expectation of privacy. In Ramapuram, the defendant was accused of stealing 100 sticks of dynamite, *825which federal agents subsequently discovered during a warrantless search. See Ramapu-ram, 632 F.2d at 1151. The defendant had secreted the dynamite in "the trunk of a Chevrolet automobile which was parked in a field on a farm located in Baltimore County, Maryland, and owned by [the defendant's] father." Id. The court described the car as a "junker," but noted that it was titled in the name of the defendant's father, for the benefit of his son; thus, the court treated the defendant as the owner of the car. Id. at 1152, 1156 n. 12. The car itself was without "current state licence tags, the trunk lock assembly had been removed and the doors were unlocked." Id. at 1152. After examining these cireumstances, the court determined that the defendant "had no reasonable expectation of privacy" in the car, the contents of its trunk, or its passenger compartment. See id. at 1158. The court based this conclusion, in part, on the fact that "the thrust of the Fourth Amendment simply does not extend to locations lacking a foundation for reasonably expecting that the materials will be accorded privacy." Id. The court further stated that " [what is a reasonable expectation of privacy is by definition related to time, place and cireumstance'" Id. at 1154 (citation omitted). The court then invoked the United States Supreme Court's test for determining whether a legitimate expectation of privacy "has been invaded by government action." Id. at 1154 (quotations and citation omitted). .

" 'This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable'" whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the cireum-stances." "

Id. (citations omitted).

30 The court then determined that because, (1) the car had been left in an open field, and (2) under the logic supporting the " 'automobile exception,'" and based on "the actual characteristics of the container" involved, the defendant had no legitimate or reasonable expectation of privacy in the car or its interior. Id. at 1155-56. Finally, the court examined the impact of the defendant's ownership status on his expectations, and concluded that ownership, in and of itself, was insufficient to change the outcome. See id. Instead, the court focused on the defendant's failure to secure the vehicle, either its doors or its trunk, and the fact the defendant did not live on the property where the car .was sitting. See id. Thus, the court concluded that the trial court had not erred in denying defendant's motion to suppress. See id.; see also State v. Rubert, 2001 WL 1285989, *3, 2001 Tenn.Crim.App. LEXIS 858, **8, 9 (stating "[when an individual flees from a vehicle, he or she is deemed to have abandoned the vehicle, thereby losing an expectation of privacy in that vehicle").

31 I believe these cases are much more salient to the instant case. Moreover, rather than assuming that Rynhart had a reasonable expectation of privacy in the contents of her purse merely because it was a purse, I believe we must examine the totality of the circumstances to determine whether, under these cireumstance, any such expectation would have been legitimate. We will only conclude that the expectation was legitimate "if the individual exhibited an actual, subjective expectation of privacy and [the person's] actual expectation is one that society recognizes as reasonable." People v. Taylor, 258 Mich.App. 899, 655 NW.2d 291, 296-97 (2002). "To determine Whether [Rynhart] had a reasonable expectation of privacy in [either her purse or her van] sufficient to challenge the search under the Fourth Amendment, we must inquire whether [Ryn-hart] 'took the normal precautions to maintain her privacy-that is, precautions normally taken by those seeking privacy'" Id. (citations omitted); see also Rakas v. Illinois, 489 U.S. 128, 152-55, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (Powell, J., concurring) (stating "the Court has examined whether a *826person invoking the protection of the Fourth Amendment took normal precautions to maintain his privacy" (citing United States v. Chadwick, 488 U.S. 1, 11, 97 S.Ct. 2476, 2488, 53 L.Ed.2d 588 (1977))).

132 In this case, following an accident resulting in her van coming to rest on the property of another, Rynhart chose to leave the van where it sat. She left it unlocked, illegally parked, and in an uncovered, open field. The analysis is thus guided by the objective fact that any expectation of privacy Rynhart may have had in the vehicle is reduced, as a matter of law, because the object in question is an automobile. See Wyoming v. Houghton, 526 U.S. 295, 808, 119 S.Ct. 1297, 1302, 148 L.Ed.2d 408 (1999) (noting that drivers and passengers "possess a reduced expectation of privacy with regard to property that they transport in cars, which 'trave[l] public thoroughfares.'" (alterations in original) (citation omitted)); California v. Acevedo, 500 U.S. 565, 569-71, 111 S.Ct. 1982, 1985-86, 114 LEd.2d 619 (1991) (discussing the nature of the automobile exception to the warrant requirement of the Fourth Amendment).6 Second, Rynhart left the van in an open field, which, as earlier noted, is not subject to the protections afforded hearth and home under the Fourth Amendment. See Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924); see also Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1785, 1741, 80 L.Ed.2d 214 (1984) (affirming Hester and its principle that no legitimate expectation of privacy arises in open fields). Thus, Rynhart left her vehicle-which traditionally enjoys reduced Fourth Amendment protections-in a field, which enjoys none. She left the vehicle, and its contents, illegally parked and unsecured for several hours following her accident.

33 In behaving in this fashion, Rynhart, much like the defendant in Ramapuram, " 'exhibited [no] actual (subjective) expectation of privacy,'" in that, through her actions, she made no effort to "seek to preserve [something] as private." Ramapuram, 682 F.2d at 1154 (alterations in original) (citation omitted); see Pierre v. State, 782 So.2d 376, 379 (Fla.Dist.Ct.App.1999) ("'Sometimes an automobile takes on the characteristics of a man's castle. Other times an automobile takes on the characteristics of an overcoat that is, it is moveable and can be discarded by the possessor at will'") (quoting Thom v. State, 248 Ark. 180, 450 S.W.2d 550 (1970); 7 see also State v. Bradford, 25 Ariz.App. 518, 544 P.2d 1119, 1120 (1976) (concluding that the defendant abandoned his vehicle when he "fled after attempting to elude a pursuing police car and crashed into a shed on private property"); Walker v. State, 228 Ga.App. 509, 493 S.E.2d 198, 194-95 (1997) (concluding that the defendant voluntarily abandoned his vehicle when he left it parked on the roadside in anticipation of an encounter with *827the police) Hunt v. Commonwealth, 488 S.W.2d 692, 6983-94 (Ky.Ct.App.1972) (concluding that the defendant abandoned his vehicle after he ran from the police and left his vehicle in a public park for four hours without making any effort to retrieve it); of. People v. Hall, 5 Cal.App.3d 116, 122, 85 Cal.Rptr. 188, 191-92 (Cal.Ct.App.1970); State v. Rubert, 2001 WL 1285939, *3, 2001 Tenn.Crim.App. LEXIS 853, **8, 9 (Tenn. Crim.App. October 25, 2001) ("When an individual flees from a vehicle, he or she is deemed to have abandoned the vehicle, thereby losing an expectation of privacy in that vehicle.").

1 34 Furthermore, from the available case law, it seems clear that whether or not Ryn-hart had a subjective expectation of privacy in her vehicle, when she left it as she did, she created a situation wherein society is not prepared to recognize her expectation as reasonable. See Ramapuram, 632 F.2d at 1154 ("The second question is whether the individual's subjective expectation of privacy is 'one that society is prepared to recognize as "reasonable," ' whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is '"justifiable' under the cireum-stances." (citations omitted)); see also United States v. Barlow, 17 F.3d 85, 88-89 (5th Cir.1994) (discussing voluntary relinquishment of a person's legitimate expectation of privacy in a vehicle); accord United States v. Oswald, 788 F.2d 663, 666-67 (6th Cir.1986); People v. Hall, 5 Cal.App.83d 116, 122, 85 Cal.Rptr. 188 (Cal.Ct.App.1970); State v. Wynn, 6283 So.2d 848, 848-49 (Fla.Dist.Ct. App.1998); Walker v. State, 228 Ga.App. 509, 493 S.E.2d 1983, 195 (1997); Hunt v. Commonwealth, 488 S.W.2d 692, 694 (Ky.Ct.App. 1972); State v. Rubert, No. M2000-00914-CCA-R3-CD, 2001 WL 1285939, *3, 2001 Tenn.Crim.App. LEXIS 8538, **8-9 (Tenn. Crim.App. October 25, 2001); ef State v. Bradford, 25 Ariz.App. 518, 544 P.2d 1119, 1120 (1976) (vehicle deemed to be abandoned following an accident from which the defendant fled); Commonwealth v. Sinclair, No. 1018-01-2, 2001 WL 1117050, *3, 2001 Va. App. LEXIS 527, **7-8 (Va.Ct.App. September 25, 2001). I can discern no significant difference between the instant case and the aforementioned cases. Thus, there is no principled reason to conclude that society is prepared to recognize Rynhart's subjective expectation of privacy.

35 Assuming, for the sake of argument, that Rynhart's actions did not demonstrate her wholesale failure "to preserve [something] as private," Ramapuram, 632 F.2d at 1154 (alteration in original), I would conclude Rynhart's action resulted in the reasonable conclusion that she abandoned her expectation of privacy, even under existing Utah law.8

*828In Utah, "the abandonment determination [currently] involves two inquiries: (1) whether the individual relinquished a legitimate expectation of privacy in the item; and (2) whether the relinquishment was voluntary." State v. Bissegger, 20083 UT App 256," 14, 76 P.3d 178. Moreover, again under our case law, "'[tlhe burden of proving abandonment falls on the state, ... and must be shown by clear, unequivocal and decisive evidence." Id. (quoting State v. Rows, 806 P.2d 730, 736 (Utah Ct.App.1991)).

136 Here, the van had been involved in a single car accident. After crashing through a fence, it came to rest in a marsh, owned by someone other than Rynhart. Following the accident, Rynhart, for reasons unclear from the record, got out of the van, leaving her purse, briefcase, and a half-consumed bottle of liquor, and left the seene. She left the van unlocked, its contents fully available to any curious passerby. She reported the accident to neither the police, nor the property owner. Over five hours later, the police were called to the accident by the property owner, yet Rynhart had made no effort to contact the authorities. Therefore, even if we were to assume that Rynhart maintained a legitimate privacy interest in the van immediately following the accident, the record clearly reflects that Rynhart relinquished her privacy interest in the van and its contents. See Bissegger, 2008 UT App 256 at 1 14, 76 P.3d 178; cf. California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 1629, 100 LEd.2d 30 (1988) (stating "the police cannot reasonably be expected to avert their eyes from evidence of eriminal activity that could have been observed by any member of the public," and "'what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection'" (citation and alteration omitted)).

137 It is also clear from the record that the relinquishment was her own decision and not the product of official coercion or force. Cf. State v. Vancleave, 2001 UT App 228,112, 29 P.3d 680 (equating voluntariness to being " 'free from official coercion'" in the context of waiver of counsel (citation omitted)), cert. denied, 40 P.3d 1185; accord Unmited States v. Flynn, 309 F.3d 736, 738 (10th Cir.2002) ("In order to be effective, abandonment must be voluntary. It is considered involuntary if *829it results from a violation of the Fourth Amendment.... [PJroperty is considered to have been involuntarily abandoned if the defendant discards it as a consequence of illegal police conduct." (citations omitted)); Hypo!-ite v. State, 985 S.W.2d 181, 187 (Tex.App. 1998) ("In order for an abandonment to occur, the decision to abandon must not be the product of police misconduct."); Commonwealth v. Sinclair, 2001 WL 1117050, *2, 2001 Va App. LEXIS 527, *7 (Va.Ct.App. September 25, 2001) ("[IIntention is a prime factor in determining whether there has been an abandonment. And courts must determine intent ... from the objective facts at hand. Abandonment may be demonstrated, for example, when a suspect leaves an object unattended in a public place." (second alteration in original) (quotations and citations omitted)).

T38 In this case, at the time Rynhart crashed through the fence, she was not, in any way, involved with the police, nor was the police department even aware of the accident until over five hours after it occurred. Thus, her decision was neither the product of police coercion or any other police misconduct, and was, accordingly, made voluntarily. As a result, Rynhart voluntarily relinquished any legitimate expectation of privacy in her vehicle in leaving it as she did following the accident. Consequently, the officer's search of the vehicle did not, in any way, violate Rynhart's Fourth Amendment rights.

139 For the foregoing reasons, I believe that the abandonment standard we have adopted in Utah is flawed and contrary to generally accepted Fourth Amendment abandonment analysis. At a minimum, we should abandon the subjective approach to the analysis in favor of an objective analysis of intent. However, whether analyzed under the generally accepted standard, or under our flawed approach, I believe that Rynhart abandoned her expectation of privacy in the van. Thus, the trial court's order should be affirmed. Accordingly, I dissent from the majority decision to suppress the evidence discovered during the search.

. The majority points out the [act that the State failed to file a cross appeal on the issue of abandonment. However, the State was under no duty to do so. We are permitted to affirm the trial court's order-in this case the denial of the motion to suppress-on any grounds apparent from the record, even if the trial court addressed the ground we rely upon in a subsidiary ruling. See State v. South, 924 P.2d 354, 356 (Utah 1996). Thus, if we are able to conclude from the record before us that Rynhart abandoned her reasonable expectation of privacy in the van, we can affirm the trial court's denial of Rynhart's motion to suppress on these grounds. See id. at 357.

. State v. Friedel, 714 N.E.2d 1231 (Ind.Ct.App. 1999), briefly mentions, then summarily disposes of, the doctrine of abandonment, without venturing into any substantive analysis of the issue, presumably due to its inapplicability in the case. See id. at 1241.

. I am also puzzled by the majority's focus on the purse. While, admittedly, the critical evidence was discovered in the purse, had this situation involved only the purse, and not the van, there is little question that the officer's conduct would be considered eminently reasonable. The officer would have reasonably concluded that the purse, or at least the owner's reasonable expectation of privacy, had been abandoned. Thus, the critical question is whether Rynhart had or retained a legitimate privacy interest in the van, and, through the van, in its contents. See Wyoming v. Houghton, 526 U.S. 295, 306-07, 119 S.Ct. 1297, 1303-04, 143 L.Ed.2d 408 (1999) (acknowledging that containers in a vehicle are to be treated as a part of the vehicle for purposes of Fourth Amendment analysis).

. The Bissegger court, in addressing the State's abandonment argument, relied upon State v. Rowe, 806 P.2d 730 (Utah Ct.App.1991), rev'd, 850 P.2d 427 (Utah 1992) (reversing our conclusion that the warrant was invalid, thus, the supreme court had no reason to address the abandonment issue). See State v. Bissegger, 2003 UT App 256,M1 13-15, 76 P.3d 178. However, while the Bissegger court noted that Rowe had been reversed, it failed to acknowledge that the Rowe decision is at best a plurality. See Rowe, 806 P.2d at 739 (Garff, J., concurring); 806 P.2d at 740 (Jackson, J., dissenting). Thus, the prece-dential value of Rowe is limited. Moreover, I believe that our particular abandonment standard, based on the Fourth Amendment to the United States Constitution, is fatally flawed. Through this standard, we have placed the burden on the state to show by clear, unequivocal, and decisive evidence, that the defendant actually intended to abandon his or her legitimate right to privacy. See Bissegger, 2003 UT App 256 at T14, 76 P.3d 178. There are two problems with this standard.

First, the expectation that the state must, essentially, prove abandonment by clear and convincing evidence, see Rowe, 806 P.2d at 736 (stating that "[the burden of proving abandonment falls on the state, and must be shown by 'clear, unequivocal and decisive evidence' " (citation omitted)), does not comport with the expectations of most other courts. See United States v. Pitts, 322 F.3d 449, 456 (7th Cir.2003) ("'To demonstrate abandonment, the government must prove by a preponderance of the evidence that the defendant's ... actions would lead a reasonable person in the searching officer's position to believe that the defendant relinquished his property interests in the item to be searched."), cert. denied, -- U.S. --, 124 S.Ct. 128, 157 LEd.2d 90 (2003); United States v. Basinski, 226 F.3d 829, 836 (7th Cir.2000) ("To demonstrate abandonment, the government must establish by a preponderance of the evidence that the defendant's voluntary words or conduct would lead a reasonable person in the searching officer's position to believe that the defendant relinquished his *822property interests in the item searched or seized.").

Moreover, the "clear, unequivocal and decisive evidence" standard adopted in Rowe is actually the standard of evidence applied in civil cases dealing with the abandonment of a property right, not the abandonment of a legitimate expectation of privacy, see Friedman v. United States, 347 F.2d 697, 704-06 (8th Cir.1965) (addressing the question of whether the defendants in the case had abandoned their property rights to certain premises or its contents), and it seems to have been unwisely imported into Fourth Amendment jurisprudence. Accord State v. Fin-ney, No. 21180, 2003 WL 245727, *5, 2003 Ohio App. LEXIS 518, *14 (Ohio Ct.App. February 5, 2003) (" '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.'" (citation omitted)); State v. Villegas, No. 21100-2-III, 116 Wash.App. 1014, 2003 WL 1091032, *2 2003 Wash.App. LEXIS 416, *6 (Wash.Ct.App. March 13, 2003) (stating "the crux of our analysis is not [the defendant's] interest [in the container] as applied under property law, but his reasonable expectation of privacy in the [container] under a potential illegal search analysis."), amended by No. 21100-2-III, 2003 Wash.App. LEXIS 1097 (June 3, 2003); see Lin-scomb v. Goodyear Tire & Rubber Co., 199 F.2d 431, 433 (8th Cir.1952) (abandonment as an affirmative defense in replevin action); Williams v. Barnette, No. CA98-1261, 1999 WL 360291, **1-5 1999 Ark.App. LEXIS 409, **1-4 (Ark.Ct.App. June 2, 1999) (abandonment and easements); Stone v. Geyser Quicksilver Mining Co., 52 Cal. 315, 317-18 (1877) (abandonment and mining rights); Mineral Mgmt. Group, Inc. v. Chandler, NO.2002-CA-001178-MR, 2003 WL 21246036, **1.3 2003 Ky.App. LEXIS 135, **1-3 (Ky.Ct. App. May 30, 2003) (abandonment and natural gas leases); Phillips v. Gregg, 628 A.2d 151, 152-53 (Me.1993) (abandonment and easements); Doherty v. Russell, 116 Me. 269, 101 A. 305, 306-07 (1917) (abandonment and life estates); Stieff v. Collins, 237 Md. 601, 207 A.2d 489, 490-91 (1965) (abandonment of nonconforming use); Clausi v. Meddaugh, 116 AD.2d 850, 498 N.Y.S.2d 267, 268 (N.Y¥.App.Div.1986) (abandonment and easements); Consolidated Rail Corp. v. MASP Equip. Corp., 67 NY.2d 35, 499 N.Y.S.2d 647, 490 N.E.2d 514 1986 N.Y. LEXIS 16334, **4-6 (N.Y. February 11, 1986) (abandonment and easements); New York Connecting R. Co. v. Queens Used Auto Parts, Inc., 72 N.Y.S.2d 546, 549-50 (N.Y.Sup.1947) (abandonment and easements), modified, 273 A.D. 908, T7 N.Y.S.2d 505 (N.Y.App.Div.1948); Moore v. DeVault, No. M2001-02225-COA-R3-CV, 2002 WL 31769110, **1-3 2002 Tenn.App. LEXIS 864, **8-10 (Tenn. Ct.App. December 11, 2002) (abandonment and easements); Second Chance Farms, Inc. v. Perry County, No. M200-00513-COA-R3-CV, 2001 WL 219642, **5-6 2001 Tenn.App. LEXIS 145, **11-15 (Tenn.Ct.App. March 7, 2001) (abandonment and public roads); Lipscomb v. Commins, 212 Va. 543, 186 S.E.2d 74, 74-75 (1972) (per cu-riam) (abandonment and rights of way); see also Simms v. District of Columbia, 612 A.2d 215, 218-19 (D.C.1992) (abandonment of property as an affirmative defense); Williams v. United States, 337 A2d 772, 774 (D.C.1975) (same). Second, our requirement that the state prove the defendant's intent, in other words the adoption of a subjective standard of proof, also fails to comport with most other courts' analyses of this issue. See, eg., United States v. Lonedog, 67 Fed.Appx. 543, 2003 WL 21357264 2003 U.S.App. LEXIS 11687 (10th Cir.2003) ('The abandonment determination is made by objective standards. However, an expectation of privacy is a question of intent which may be inferred from words spoken, acts done, and other objective facts."); Pitts, 322 F.3d at 456; ("[Abandonment] is an objective test[.]"); Basinski, 226 F.3d at 836 ("'Because this is an objective test, it does not matter whether the defendant harbors a desire to later reclaim an item; we look solely to the external manifestations of his intent as judged by a reasonable person possessing the same knowledge available to the government agents."); United States v. Yiu-Pong Liu, 180 F.3d 957, 960 (8th Cir.1999) (" '[WJhether an abandonment has occurred is determined on the basis of objective facts available to the investigating officers, not on the basis of the owner's subjective intent.'" (citation omitted)); United States v. Jones, 707 F.2d 1169, 1172 (10th Cir. 1983) (''The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. This determination is to be made by objective standards." (citation omitted)); United States v. Gutierrez-Medina, 41 F.Supp.2d 1191, 1195 (E.D.Wash.1998) ("The test [for abandonment of a legitimate expectation of privacy] is an objective one and intent may be inferred from words spoken, acts done and other objective acts." (emphasis added)); State v. Dixon, 2001 WL 209907, *4 2001 Del.Super. LEXIS 66, *15 (Del.Super.Ct. February 15, 2001) ("'When determining whether property has been abandoned in the context of search and seizure analysis, the Court must administer an objective test."); State v. KW., 832 So.2d 803, 805 (Fla.Ct. App.2002) (per curiam) (Nesbitt, J., concurring) (''The test to be applied in determining whether a person has abandoned property is an objective onel.]"); State v. Harwood, 133 Idaho 50, 981 P.2d 1160, 1162 (Idaho Ct.App.1999) ("Abandonment, in the Fourth Amendment context, occurs through words, acts, or other objective facts indicating that the defendant voluntarily discarded, left behind, or otherwise relinquished his interest in property."); State v. Villegas, 116 Wash.App. 1014, 2003 WL 1091032, *2 2003 Wash.App. LEXIS 416, *6 (Wash.Ct.App. March 13, 2003) ("Abandonment is an ultimate fact or conclusion based generally upon a combination of act and intent.... [Intent may be inferred from words spoken, acts done, and other objective facts with all relevant circumstances surrounding the alleged abandonment considered." (second alteration in original) (quotations and citations omitted)).

*823Finally, I believe the holding of Rowe conflicts-if not in fact, at least in spirit-with California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), which was decided after we issued Rowe. In Hodari, the Supreme Court addressed whether the defendant had an expectation of privacy in evidence picked-up by the police after the defendant had tossed it away. See id. at 623-24, 111 S.Ct. at 1549. Although the opinion focused on whether the defendant had been unlawfully seized prior to discarding the evidence, the Court, relying on Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924), concluded that the evidence had been abandoned by the defendant, even though he was being pursued by the police. See Flodari, 499 U.S. at 629, 111 S.Ct. at 1552. In Rowe, during a search incident to a warrant, police officers informed the defendant that she was free to leave and escorted her to a bedroom to retrieve her belongings. See State v. Rowe, 806 P.2d 730, 736 (Utah Ct.App.1991), rev'd, 850 P.2d 427 (Utah 1992). After she retrieved her shoes, she affirmatively claimed that she owned nothing else in the room. See id. ("'Defendant was allowed to leave the party.... She was conducted to the bedroom to retrieve her shoes and was given the opportunity to claim any other property that belonged to her. When asked ... she stated that she had retrieved everything in the bedroom that was hers."). Later, police officers discovered defendant's purse, in which they found methamphetamine as well as defendant's identification. See id. at 732. Defendant was subsequently arrested, and eventually filed a motion to suppress the evidence. See id. On appeal, this court, after first determining that the warrant was flawed (a determination later reversed by the Utah Supreme Court), decided that the defendant had not abandoned her expeciation of privacy, but instead she had made "a mere disclaimer of interest to avoid selfin-crimination." Id. at 736. However, in retrospect it appears that, much like the defendant in Hodari, the defendant in Rowe essentially tossed away her purse. Thus, she abandoned her privacy interest in the purse. Consequently, it appears that the United States Supreme Court, sub silencio, reversed Rowe's abandonment analysis and conclusion.

Accordingly, I believe our abandonment standard to be incorrect and it is our duty to amend it to comport with Federal Fourth Amendment jurisprudence on this issue. Of course, it is possible that the Rowe standard comports with the protections afforded under the Utah Constitution. However, that question is not today before this court and is best left to another time.

. The court also found that "[the only fact weighing against the conclusion that the vehicle had been abandoned was that it was still warm." United States v. Barlow, 17 F.3d 85, 89 (5th Cir.1994). However, even taking the warm hood into account, the court concluded that "a police officer who discovers an unlocked car at the end of a public street with the key in the ignition could reasonably conclude that the car had been abandoned." Id. Thus, the court determined that under the circumstances, signs of recent use were not sufficient to revive a reasonable expectation of privacy.

. In citing the automobile exception, I in no way mean to assert that the search was justifiable under this exception. Rather, I point to the automobile exception to highlight one of the factors that suggest Rynhart abandoned any legitimate expectation of privacy she may have had under these circumstances.

. The instant case is not dissimilar to State v. Wynn, 623 So.2d 848 (Fla.Dist.Ct.App.1993). In Wynn, police officers were investigating a possible drug transaction when they noticed two illegally parked vehicles, one of which was the defendant's truck. See id. at 848. The officers also noticed known drug dealers standing near the vehicles talking with the occupants. See id. After the officers approached, and the drug dealers fled, the defendant "got out of the truck and departed without saying anything to the officers." Id. He "left his truck unlocked and ille gally parked.... After forty-five minutes, during which lime no one returned to the truck, the officer entered the truck to search for identification or registration." Id. at 848-49. "During this search, the officer saw a balled-up brown paper bag on the floorboard, opened it, and discovered a large quantity of cocaine in individual plastic bags." Id. at 849. On appeal from the trial court's denial of a motion to suppress, the Florida Court of Appeals determined that the defendant had abandoned any expectation of privacy he may have had in the vehicle, thus the search did not implicate the Fourth Amendment. See id. at 849; see also Simmons v. State, 118 S.W.3d 136 (Ark.App.2003) (concluding that the defendant abandoned his privacy interests in a container when he discarded it as he fled from the police); State v. Kauffman, 162 Or.App. 402, 986 P.2d 696, 699 (1999) (concluding that the defendant abandoned his privacy interest when he ceded control of the involved container to a third party and "asked them to hide the bag in the bushes on property that did not belong to him").

. This court, in State v. Rowe, 806 P.2d 730, 736 (Utah Ct.App.1991), rev'd, 850 P.2d 427 (Utah 1992), made the remarkable statement that abandonment is "primarily a factual question of intent." However, not only do I believe that the abandonment issue in Rowe was erroneously decided, see State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993), I see nothing to support this court's decision to separate Fourth Amendment abandonment analysis from our normal Fourth Amendment analysis. Abandonment should be reviewed as "a mixed question of law and fact." United States v. Oswald, 783 F.2d 663, 665-66 (6th. Cir.1986). Thus, as we do in all other search and seizure cases involving the review of a trial court's suppression decision, we should review the trial court's factual findings for clear error, and its conclusions of law for correctness. See State v. Arroyo, 796 P.2d 684, 687 (Utah 1990) ("A finding not supported by substantial, competent evidence must be rejected."); id. at 689 ("Generally, whether the requisite voluntariness exists depends on 'the totality of all the surrounding circumstances.'" (citation omitted)); State v. Navanick, 1999 UT App 265,17, 987 P.2d 1276 ('The trial court's legal conclusions [made regarding a motion to suppress], however, we review for correctness."). Admittedly, "[vJoluntariness is primarily a factual question," Thurman, 846 P.2d at 1262, however, the trial court's ultimate conclusion concerning vol-untariness is reviewed for correctness. See id. at 1271.

Similarly, I believe that when the central issue is whether or not the defendant has abandoned his reasonable expectation of privacy in a container, vehicle, or other object, ''the trial court's underlying factual findings [should] not be set aside unless they are clearly erroneous," but the court's ultimate legal conclusion concerning abandonment should be granted no deference and should be reviewed for correctness. Id.; see also State v. South, 932 P.2d 622, 624 (Uiah Ct.App.1997) ("We review for correctness the trial court's legal conclusions on motions to suppress. We will overturn the trial court's underlying factual findings only if those findings are clearly erroneous." (citation omitted)).

*828In the instant case, the trial court made very few factual findings concerning this issue, and very few of the facts were subject to any dispute. The court found that a property owner called the Box Elder Sheriff's Department to report a van had been left on his property. The owner further reported that the van had crashed through two fences and come to rest in a marsh. The record supports this finding. The court further found that the vehicle had been in the marsh for over five hours, and the record also supports this finding. The final two findings relevant to this issue were (1) that the State failed to introduce evidence "of the state of the vehicle," and (2) that the vehicle's owner did not have sufficient time to make arrangements to retrieve the vehicle. Nothing in the record supports the second finding. Thus, in the absence of "substantial, competent evidence," this finding must be reversed. Arroyo, 796 P.2d at 687. Moreover, given the other facts available to the trial court, I am uncertain of the materiality of the vehicle's condition. Furthermore, the undisputed facts, left undiscussed by the trial court include: (1) Rynhart left the van and its contents unsecured, (2) Rynhart did not report the accident or the location of the vehicle to the authorities, (3) Rynhart did not inform the property owner of the accident or tell him that she was leaving the van on his property, and (4) Rynhart left the scene of the accident, was not hospitalized, and was able to find her way to the impound lot later in the day to collect the vehicle. There was also no evidence, and Rynhart does not argue, that her decision to leave was in any way influenced by the police, removing any possibility that her flight was coerced. See, eg., United States v. Flynn, 309 F.3d 736, 738 (10th Cir.2002). Consequently, I would conclude that Rynhart's behavior was voluntary as a maiter of law.

I would also conclude, again after focusing on the totality of the circumstances, that Rynhart abandoned any legitimate expectation of privacy that she may have otherwise had when she left the van as she did. Following the single car accident, during which Rynhart careened through two fences, the van came to rest in a field or marsh. Said field was not owned by Rynbart, nor was it intended (in that it is a marsh) as a parking area. Rynhart left the van and neither reported the accident to the police, nor did she inform the property owner of the accident or her decision to leave the van. Furthermore, when she left, she did not secure the van or its contents, she left an open bottle of liquor in the van, easily seen by anyone passing by, and she left the van where it had come to rest for over five hours. Thus, Rynhart's failure "to seek to preserve [the materials in the van] as private," United States v. Ramapuram, 632 F.2d 1149, 1154 (4th Cir.1980), doomed her motion to suppress. She either had no expectation of privacy that society was prepared to recognize, or she voluntarily abandoned whatever expectation she had, as a matter of law.