*1 MONTANA, OF STATE Respondent, Plaintiff v. HAMILTON,
KALLIE Appellant. Defendant No. 02-305. on Briefs October 2002. Submitted April Decided 2003.
JUSTICE of the Court. Opinion TRIEWEILER delivered Hamilton, Appellant, charged 1 The Kallie was in the District Court ¶ felony Eighteenth County, for the Judicial District in Gallatin with Criminal of Dangerous Drugs. Possession Hamilton entered a not guilty plea and filed suppress a motion to both the evidence discovered by the Bozeman Police Department during two warrantless searches of her lost wallet and the incriminating subsequent statements made Following hearing, to the searches. the District Court concluded that subjective expectation individual’s in lost or abandoned objectively is not suppress reasonable. Hamilton’s motion to denied; and, evidence she guilty plea; entered a she reserved the right appeal the denial of her suppress. motion to Based on that appeal, we reverse the order of the District Court. We restate the appeal issues on as follows:
¶2 1. Is there an expectation ¶3 reasonable in a lost wallet? 2. Did the District Court err when it denied Hamilton’s motion to
suppress evidence during obtained the initial warrantless search of Hamilton’s wallet? 3. Did the District Court err when it denied Hamilton’s motion to
suppress evidence obtained and statements made result of the second warrantless search of Hamilton’s wallet?
FACTUAL AND PROCEDURAL BACKGROUND On March a woman’s wallet was turned over Department. Bozeman Police The officer entrusted with the wallet completed requisite paperwork gave it to Thompson, Dennis a public employee. Thompson relations was directed to find the owner of the wallet and return it. The wallet consisted of opposing compartments two and a
zippered purse coin in the center. The compartment featured a plastic clear window which revealed a driver’s license. The left checkbook, compartment held a which phone included the owner’s number and address. The contents ofthe zippered purse coin could not viewed unless the coin was unzipped. When folded the wallet was secured a flap which concealed its contents. Thompson opened the wallet to determine the identity
owner and conducted an “inventory search” without a warrant. He “inventory routinely testified an search” of lost conducted to determine if the If property contains valuables. a wallet contains *4 valuables, it is stored in the safekeeping. evidence room for search, During Thompson opened zipper the the of the coin purse and an amount powder escaped. investigation white Further revealed the purse coin contained a substantial amount of the white
511 and Drug turned the wallet over to the Task Force powder. Thompson “suspicious.” No Greg Megargel informed Detective that the wallet was inventory by Thompson was recorded and he could not recall if he had identity determined the of the wallet’s owner before he searched the powder. coin the discovered Megargel Detective conducted a second search of the wallet bag containing
without a warrant and found a small crushed red and capsules powder Megargel white with a white residue. Detective Roxilox, powder determined that the white was a Schedule II wallet, Hamilton, controlled narcotic. The of owner Kallie was finally using contacted identification information found wallet. Hamilton informed that was her wallet had been turned over to the police and that a controlled substance had been found the coin purse. Initially, Hamilton claimed she had a prescription for the Later, Roxilox. drug she admitted that the prescribed was not for her and that acquire she did not it from a pharmacist. charged by Hamilton was information in Eighteenth Judicial
District Court Dangerous with Criminal Possession of Drugs, felony, (1999). 45-9-102, in violation of MCA She plea guilty § entered a of not and filed a motion suppress to evidence. argued Hamilton drugs wallet, discovered in her and the admissions she made subsequent discovery, to that were attained in violation of the United States Constitution and the Montana Constitution because the searches were conducted without a warrant. 31,2002. A hearing January 4,2002, was held on February On
District Court concluded that Hamilton had a subjective expectation wallet, in her lost but that her expectation not reasonable. The court held that no search had occurred within contemplation of the Fourth Amendment of the United II, States Constitution or Article Section of the Montana Constitution. Hamilton’s motion to suppress was denied. Consequently, she plea guilty February 5, 2002, entered a on appeal reserved the the District Court’s Order.
STANDARD OF REVIEW Our standard of review of a district court’s denial a motion suppress findings clearly whether court’s of fact are erroneous correctly and whether those facts applied were as a matter of law. (1995), State v. Williams 1021.
DISCUSSION required Whether law enforcement is to obtain warrant before ¶14 searching impression a lost wallet is an issue of first in Montana. The provides Fourth Amendment to the United States Constitution However, protections against traditional unwarranted searches. heightened expectation privacy pursuant Montanans have a of to the II, 11, protections found at Article Sections 10 and of the Montana (1997), 41, 45, 722, Constitution. State v. Scheetz 286 Mont. 950 P.2d 724. II, 10, right Article Section states: “The of individual privacy
¶15 is well-being society essential to the of a free and shall not infringed be without the showing compelling of state interest.” II, 11, Article Section states: ¶16 people persons, papers,
The shall be secure in their homes and effects from unreasonable searches and seizures. No warrant to any place, any person thing search or seize or shall issue without describing place searched person thing or the or to be seized, cause, or probable supported by without oath or writing. affirmation reduced to guaranteed Whether an individual’s to privacy
¶17
Montana
infringed by
Constitution has been
an unlawful search
depends
government
on whether there has been a
intrusion into an
subject
Scheetz,
area
to a
expectation
privacy.
reasonable
of
286 Mont.
46,
at
ISSUE 1 of in a lost objectively expectation privacy Is there an reasonable wallet? that the Court incorrect it Hamilton asserts District when expectation
concluded that she did not have an reasonable privacy in her lost wallet. She contends that she retained a expectation privacy diminished in her lost wallet. The State contends that once individual abandons her
property, intentionally either accidently, expectation or recognized by society non-existent; that, nearly consequently, there was no search purposes. of her wallet for constitutional There question is no that Hamilton had an actual expectation respect with to the expected contents of her lost wallet. She *6 that person who found her wallet would look inside for identification, checkbook, see her driver’s license or and return the wallet to her without further intrusion. Moreover, question there is no that society person’s views a
expectation privacy of in a wallet objectively or as reasonable. things inherently Few are more private than the contents aof wallet (1982 (“It purse. or Wash.), 63, See State v. Johnson 645 P.2d 64 would object be difficult to define an inherently more private than the (1992 contents of a purse”); May Me.), 772, woman’s State v. 608 A.2d (Defendant’s 774-75 wallet was held to a repository personal for inevitably effects expectation privacy). associated with an of We see no meaningful distinction between expectation privacy of a person has in the contents of a purse security and the contents of a wallet. Social cards, cards, cash, credit stamps, numbers, food phone pictures of ones, loved and other personal effects are often stowed in a to wallet readily owner, make them yet available to the hidden from the eyes uninvited strangers. of question The we must society answer is whether continues to view person’s expectation actual privacy objectively of as reasonable when
she loses her wallet. analysis begins Our with the District Court’s erroneous
characterization of suppress. Hamilton’s motion to The District Court stated that: “The motion to suppress challenges law enforcement’s warrantless search of an item of lost or It property.” abandoned appears that the District Court did distinguish not an individual’s expectation privacy regard of to property with abandoned from expectation privacy regard property. individual’s of with to lost However, is property distinction between abandoned and lost any
critical there is a reasonable consideration of whether subject of in the wallet. expectation privacy person intentionally This Court has held that when a property, person’s expectation privacy abandons her of with Amaya regard property to that as See State v. abandoned well. (1987), P.2d In of a 957. the case lost item, however, intentionally voluntarily not owner has or property. expectation abandoned his or her It follows that of privacy voluntarily one has his or her wallet was not surrendered substantially recognized remains intact. Courts have that the owner of lost or mislaid retains a of property expectation reasonable diminished item, in that privacy may to the extent that the finder necessary examine the contents of that item as to determine rightful owner. (1984 Haw.), In Ching State v. Hawaii
Supreme Court Ching considered whether had an expectation privacy cylinder reasonable in a small contained brass license, in a pouch by police that also held his driver’s which was found prior searching cylinder. prosecution argued Ching The had and, therefore, expectation privacy no reasonable in the lost items cylinder the search of the constitutionally prohibited. brass was not held, The however: court
Moreover, Ching’s expectation
cylinder
in the
socially
though
misplaced
Property
reasonable even
he had
it....
inadvertence,
through
Although
is lost
not intent.
owners of lost
may
expect
some intrusion
finders common sense
they
dictates that
do not forfeit all
expectations
their
they
though
had abandoned it.
Ching,
¶28 Supreme Kealey reasonably objective Court considered whether had a expectation privacy by of in a lost that purse was searched without a warrant. The court held: eyes
[T]he in property, owner of lost or mislaid who is bailor, common law an inadvertent retains a reasonable expectation privacy property expectation of in the ... This of diminished, however, privacy by is the fact that the finder/bailee obligation goods try has an to seek out the owner of the to words, return them. In other of expectation privacy owner’s diminished may to the extent that the finder examine and search the lost to determine its owner. property
515
(citations omitted).
Kealey,
law and a difference between right who loses but retains the person property and a integral relationship The regain possession property. desire to of that expectation privacy, of one’s intent to the of is not new to this Court: knowingly protected a to the is not ...’ person exposes public “‘What [the defendant’s] ‘the of of turned expectation privacy reasonableness Scheetz, right on the defendant’s to exclude others the premises.’” from (citations omitted). 286 Mont. at at P.2d 726-27 case, Hamilton intentionally In this did not knowingly expose or her public right wallet to the and her to exclude others from the reality people contents of her wallet remained intact. The that certain lack for the respect property of another is no reason to diminish the expectation in privacy protect jealously we so Montana. Pursuant Constitution, every person Montana who has a reasonable expectation privacy expectation maintains that even though the property misplaced. privacy may has been That interest not closely be violated the state unless the intrusion is tailored to further a compelling state interest. Consequently, objectively we conclude that Hamilton had an expectation privacy
reasonable in her lost wallet. Her expectation only necessary was diminished to the extent for the police to determine ownership. We conclude that the District Court erred when it held that Hamilton did not an have reasonable expectation of her lost wallet.
ISSUE Did the District Court err when it denied Hamilton’s motion suppress evidence during obtained the initial warrantless search of Hamilton’s wallet? Hamilton asserts that the search of her purse coin cannot be
justified inventory as an search because it did not the least incorporate only justification intrusive means. She Thompson contends that searching had for her wallet without warrant was to determine ownership. argues Hamilton identification was information readily apparent compartments in the and left of her wallet and that, therefore, was not to search the coin Thompson permitted The State the search responds without warrant. inventory permitted by
administrative search similar to the search this Court in State v. Pastos.
516 per A search is se unreasonable unless it falls within warrantless requirement.
one to the warrant Reeves v. exceptions narrow (1973 735; Alaska), 727, P.2d Katz v. United States State 599 see 347, 88 507, 19 (1967), L.Ed.2d have considered 389 U.S. S.Ct. 576. We permitted the extent to which the State is to conduct warrantless inventory the station personal property search of an arrestee’s at house and incident arrest on numerous occasions. The searches by in decisions seemingly inconsistent results reached this Court those slight Consequently, factual in each while reflect the variations case. provide guidance, by those value limited precedential cases their factual and circumstantial differences. Court, however, principles This has established some fundamental applicable inventory
of law
to searches and seizures of
for
property
(1977),
512,
Sawyer
In State v.
174 Mont.
692 P.2d
1277
on other
State v. Pastos
(1994),
199, 208),
we concluded that the
required
ofthe
privacy protections
broader
Montana Constitution
incorporate
possible
the State
the least intrusive means
when it
inventory
belonged
person
conducted an
search of a
to a
briefcase
(1983),
custody.
rejected
Lafayette
462
police
This Court
Illinois v.
justification
as a
in that
Protection of the arrestee’s
was discounted
case because the arrestee was available for consultation.
65,
U.S.
103 S.Ct.
77 L.Ed.2d
case which the United
States Supreme
inventory
Court held that the State’s interest in an
preserve
search conducted to
property, protect
police
from claims
property,
identify
owner,
for lost
protect
from
*9
presented by
hazards
packages
uninventoried
outweighed the
Sierra,
475-76,
defendant’s
interest.
Court confirmed may only that the to privacy infringed by be a compelling state interest procedure closely and a tailored to effectuate that interest. We held that: legitimate
[T]he State has a and compelling interest in protecting, to the extent possible, safety the ofthe arrestee and other persons in and about the station house weapons, from dangerous instrumentalities, and hazardous might substances which personal concealed on or in the property possessions and arrestee.
Pastos,
51,
to ensure that property an arrestee possessed when he was arrested did not pose threat to those he would come into contact with at the station. Nothing in permits Pastos the police to conduct a general property search of police held in custody when the asserted justification only relates to protecting the property for the owner and protecting the police from a claim for lost or property. stolen ¶39 We conclude that danger posed by property possessed by arrestee, Pastos, an as was the case in is not present here-there was no risk that Hamilton pull would a weapon out of her lost wallet. The Constitution does not allow a general search of a benign object based on such a possibility remote of harm as is suggested the State in posed belief that wallet an reasonable
this case. Absent claim that there was a safety, the State’s some real threat general search ofthe wallet justified interest which compelling safety See implausible. materials is explosives or hazardous weapons, for P.2d at 1093. Ching, 678 (1) by the State: have been asserted Three additional interests (2) any identity; protect the need to to determine the owner’s
need (3) from a claim that the valuables; protect police the need to custody. In police lost or stolen while contents of the wallet were Sierra, conducted while the inventory search was Sawyer both custody. we Consequently, property owner of the need to identify protect the owner and the concluded the need inventory search in either justify for the owner did not However, requirement that the State use case. the fundamental or stolen itself from a claim for lost protect least intrusive method to to the current case. applicable in those cases is discussed State, considered the Supreme In v. the Alaska Court Reeves inventory search permitted to conduct an extent to which the state was property for an arrestee and purpose protecting for the dual The court property. itself from claims for lost or stolen protecting *10 heightened expectation to the pursuant reviewed the search Alaska court stated: by for the Alaska Constitution. The provided by sufficiently protected simply can be property An arrestee’s state’s bag’ in ... However benevolent the placing ‘property it a valuables] cannot regard, protection [the in this intentions general search of the arrestee’s justification as a for a serve possessions. bailee, state, involuntary ‘only ‘slight’ duty a as an has
[T]he ‘duty ... and this property possession to in its respect care’ with inventory.’ The state can easily be met without extensive could by simply claims effectively against insulate itself fraudulent taken from an listing by description any property items secure arrestee; property bag items in a or other securing those in arrestee’s facility, preferably in the the storage container used presence... against protecting interest in itself government’s
FN 28. The damage property to claims ofloss or post-incarceration fraudulent of an infringing the tenuous reason for is at best a inventory search should Consequently, an belongings. individual’s
519 any than other rigidly scope, in more so perhaps be circumscribed justified type of warrantless search. omitted). (citations
Reeves, P.2d 599 at 736-37 inventory inventory of a lost post-arrest A and the search wallet under circumstances. The search of a lost item should occur different necessary its by identify be the least means to owner and intrusive in Reeves securing the The method of is property. secure this Court by consistent with the least intrusive means discussed Sawyer Sierra. and bailee, a a gratuitous police charged slight duty As the are with negligence. Sawyer, only by which gross
of care
is violated
Mont.
at
to conduct a search to the owner. Identification owner paramount objective is the State’s bailee of a lost wallet. See Ching, requires P.2d at 1092-93. This task that the State conduct necessary the minimum search to determine ownership. Ching and Kealey The courts in held that the government was
permitted to conduct a warrantless of lost to the search extent necessary to ownership. agrees determine Hamilton the police were to inside her for permitted look wallet identification so it could be However, returned. opened she contends that her Thompson when coin beyond he went purse, scope of necessary what determine ownership. We conclude that the least intrusive means must possible to identify protect
used the owner of lost property, the contents of owner, personal property protect for the from claims *11 missing for The a valuables. contents of lost wallet can be secured placing bag storing the wallet in an evidence and it in a secure place. method protect This is also sufficient from a claim for lost Consequently, may only or stolen valuables. State conduct a of a ownership. warrantless search lost wallet to determine Furthermore, an pursuant identification search must be conducted than must reach no further police procedure
standardized ownership. necessary to confirm was search exceeded what Thompson’s that We conclude
¶47 a testified that identify owner. Hamilton necessary to the wallet’s right compartment and in the displayed license was driver’s compartment left ofher wallet-both displayed was in the checkbook opening releasing flap apparent upon which would have been checkbook recall if he saw the Thompson could not the wallet. While search, he admitted it was he conducted his or driver’s license before readily apparent. was the identification information possible that wallet, he found custody of the Finally, Megargel when Detective took card, all license, and a checkbook that security a social a driver’s that there the lost wallet. It is clear Kallie Hamilton owned indicated that Hamilton purse the coin to determine was no need to search light of the above facts. owned the lost wallet the result Therefore, evidence discovered as we conclude by Thompson suppressed. must be the search conducted
ISSUE 3 Hamilton’s motion to Court err when it denied Did the District result of the and statements made as the suppress evidence obtained Hamilton’s wallet? second warrantless search of search, by Detective which was conducted subsequent The Force, Thompson after Drug performed Task was Megargel and informed Detective in the coin powder discovered the neither an This search was “suspicious.” that the wallet was Megargel search, inventory search. It was nor was it an identification or not the to determine whether investigative search conducted activity. criminal was evidence of suspicious nature of wallet Therefore, to obtain a search warrant Megargel required Detective was requirement. to the warrant exception absent an pursuant that the search was conducted argue The State does not cites Instead the State requirement. to the warrant exception to an (1996 Kan.), and contends Copridge State v. look”at the wallet. permitted to take a “second Megargel Detective required to conduct held that no warrant was Copridge The court by police because clothing lawfully seized post-arrest search Kansas and Copridgeinterprets expectation privacy. had no arrestee by the than the one raised entirely different issue Federal law on an and is irrelevant. of Hamilton’s wallet search warrantless not the search was record indicates that review of the Our *12 justified by Therefore, any exception requirement. other to the warrant by Megargel the warrantless search conducted Detective illegal and violated expectation privacy. Hamilton’s of Consequently, Megargel’s Detective discovery powder of the and determination that it was a controlled suppressed. substance must be We conclude that the District Court erred when it denied Hamilton’s motion to suppress the evidence during discovered Megargel’s Detective warrantless search. powder The white by Thompson,
¶53 discovered illegal and the nature powder of the white by confirmed Detective Megargel, were both the results of unconstitutional searches. Hamilton contends that the incriminating statements she made subsequent illegal to the searches are “fruits of the poisonous tree” that suppressed should be as well. It is well established that an incriminating statement made as the direct result of an illegal search is by inadmissible virtue of the exclusionary Bassett, 109, rule. State v. 57, 327, 1999 MT ¶ ¶ 57. We ¶ conclude that the by statements made Hamilton following illegal the search by conducted Detective Megargel must suppressed. Based on foregoing conclusions, the the Order of the District reversed,
Court is and we remand this case to the District Court for further proceedings consistent with this Opinion.
CHIEF GRAY, RICE, JUSTICE COTTER, JUSTICES NELSON, LEAPHART and REGNIER concur.
JUSTICE NELSON concurs. I concur in Opinion have, our accordingly, signed the same. It is also noting worth that even Montana’s statutory law does not justify the sort of intrusive search that was conducted in this case. This State’s on law bailments provides that an “involuntary deposit”
or when, bailment among occurs things, other a person accidentally leaves or places personal property possession in the any person, without negligence on part of the 70-6-101(1), owner. Sections 70-6-103(1), MCA and person MCA. The thing with whom a is involuntarily deposited is then charge bound to take if of it able to do 70-6-104, so. Section MCA. Certainly, when accidentally one loses his or her wallet purse or and it possession comes into the police or some other third party, involuntary bailment occurs and the or party third depositaries. become 70-6-201, MCA, Section provides that:
A depositary may thing not use the deposited permit or it to be any used for purpose without depositor. consent of the He open it depositor,
may purposely it is not, fastened if latter, necessity. in case except the consent without added.] [Emphasis depositary open a fastened necessity may dictate that
Again, while minimally intrusive to conduct a required to the extent purse wallet or fulfilled, is identity, purpose the owner’s once search for other fastened opening statute from depositary prohibited under this or absent the consent and containers in the wallet compartments owner. involuntary were bar, depositaries, police, In the case at to learn her to unfasten Hamilton’s wallet authority their within in this case it was However, was determined —and identity. *13 once that unfastened-they go could no further. as soon the wallet I concur.