The defense attorneys in the room were arguing that something not in the possession couldn't possibly be stolen because nothing was taken. Larceny is the taking of another's property with the intent to permanently deprive the other of that property. If the other person isn't in possession it can't be taken from him.
The Duskendale County prosecutor countered that there was a difference between mislaid property and abandoned property. Abandoned property cannot be stolen. Mislaid property could. After all, we've all been to SuperMegaMart and not been able to find our car in the massive parking lot afterwards. If someone took your car in row 215 while you were looking for the car in row 178 it would still be a larceny.
Then they turned and looked at me. Dang it. You teach a few CLE's and people start to think you know more than you actually do. Slowly, the gears in my brain started to clang into motion. Heck, I've never had to research that question before. I was looking forward to watching them argue this out in court so I could see what cases they were going to cite and how the appellate courts have handled this issue. My sense of the matter was that the prosecutor had the better of the argument, but I did find the defense attorney's argument interesting.
Anyway, the best I was immediately able to tell them was that I knew that under the 4th Amendment the fact that an item was lost did not preclude an individual from having a continuing privacy interest in the item. In other words, if a police officer finds a purse or wallet or backpack, the officer is only allowed to look inside in a manner meant to find identification; he is not allowed to do a general search of the item.
Of course, that wasn't satisfying for anyone - "That's the Constitution, not the common law." - so I did what every lawyer does. I jumped on the internet. It took a few minutes and there didn't seem to be any modern cases on point, but eventually I found Tanner v. Commonwealth, 14 Gratt. 635 (1857).
Tanner is about the taking of lost property and lays out the rules as follows:
A. Lost property remains in the constructive possession of its owner.Of course, the language in Tanner isn't in the exact terms of art we now use, but the rule is pretty clear when you read it.
B. Larceny of lost property occurs when
1. The taker intends to exercise dominion over the lost property when she took it, and
2. The taker knows the owner or has means of ascertaining the owner.
C. However, if there is no way of ascertaining ownership there can be no larceny of the lost property.
So, if anyone leaves their purse or wallet sitting on a shelf at SuperMegaMart and another person comes along and snatches it, that is almost always a larceny because of identification materials carried within. On the other hand, if someone comes across a fifty dollar bill on the sidewalk or a finds a diamond ring in a gutter it won't be a larceny - even if the person intends to keep it when she picks it up - because there is no way to identify the actual owner.