80 Wash. App. 162 | Wash. Ct. App. | 1995
Defendant Carolyn Ann Kealey misplaced her purse in a department store. Store personnel found unlawful drugs in the purse and contacted the police. Knowing the purse contained drugs, the police officers did not obtain a warrant, but searched the purse for identification. We hold that Kealey reasonably
Facts
During the evening of April 6, 1993, two women entered the shoe department of the Bon Marche department store in Kelso. One woman purchased a pair of shoes and the two left for another department to purchase a matching dress. A shoe department clerk noticed one of the women had left her purse at the end of a shoe department couch. The clerk put the purse behind the counter, thinking that the women would return to retrieve it.
After a few minutes, the clerk took the purse into the back room and opened it because "I was curious, I wanted to see what was in it. I just looked in it.” She removed a makeup bag from the purse, and thought she smelled marijuana in the bag. She did not see any drugs inside, and she did not attempt to look for identification. Without replacing the makeup bag, she shut and tossed the purse into a corner. Five minutes later, the two women returned to the shoe department and asked the clerk if she had seen the purse. The clerk lied and said she had not. The clerk explained at the suppression hearing that she did not want the women to know she had found marijuana in the bag.
The women looked for the purse throughout the shoe department and elsewhere in the store. The store manager helped them search the shoe department. The women were frantic because the purse was missing and "real mad, real angry, real frustrated.” Unable to find the purse, the two women left shortly after the store’s closing time.
The next morning the shoe department manager noticed
The assistant store manager then contacted the local narcotics task force. Detective Ray Hartley examined the makeup bag, finding a baggie of marijuana and a larger baggie containing white powder, which he believed to be methamphetamine. The clerk who had originally found the purse explained that two women shoppers had left the purse. The clerk then produced the zipped leather purse and the police examined it. According to Detective Hartley, "no thought was ever given to obtaining a warrant before searching the purse. Nor was any thought given to justification for a warrantless search. The search of the purse was undertaken simply to establish its ownership.” The detectives reexamined the purse after returning to their office. "Once again, no effort to obtain a warrant was made. The only justification for the search of the purse was to locate identification.”
The detectives found in the bag two rent checks made out to Carolyn Kealey and an AT&T long distance card in her name. These items were the only evidence of the ownership of the purse. After discovering Kealey’s name, the police officers set up a sting operation, resulting in Kealey’s arrest. She was charged by information with five counts of drug related charges under RCW 69.50.401.
Kealey moved to suppress all evidence gathered as a result of learning Kealey’s identity, including evidence gathered from the sting operation. The trial court determined that the warrantless search of the purse was not within any exception to the warrant requirement and therefore violated the Fourth Amendment to the United
The State appeals the trial court’s suppression of the evidence and dismissal of the action. The State does not assign error to the findings of facts, which we treat as verities on appeal.
Analysis
Search
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . .” U.S. Const, amend. IV. Since the detectives examined the purse without a warrant, we determine whether the State’s actions were within the scope of the Fourth Amendment, specifically whether a "search” occurred.
The landmark case for determining whether a search has occurred is Katz v. United States.
The test to determine if a person has a reasonable expectation of privacy is twofold: (1) Did the person exhibit an actual (subjective) expectation of privacy by seeking to preserve something as private? (2) Does society recognize that expectation as reasonable?
Subjective Expectation of Privacy
The burden is on the defendant to establish a subjective expectation of privacy.
Kealey demonstrated she took normal precautions to
Misplacing the purse is not enough to demonstrate that she did not seek to keep it private.
An expectation of privacy must be reasonable, i.e., one "rooted in 'understandings that are recognized and permitted by society.’ ”
The precise issue here is whether, in the eyes of society, a person loses a reasonable expectation of privacy in a purse after misplacing the purse. We resort to the common law of personal property to assist us:
The laws of trespass and tort are not controlling when considering whether the Fourth Amendment applies or is violated in a particular case, but reference to those laws may be helpful in resolving whether a person has a reasonable expectation of privacy under the Fourth Amendment.[22]
We recognize that Fourth Amendment interests are not
The common law distinguishes among property that is abandoned, lost, or misplaced. Property is abandoned when the owner intentionally relinquishes possession and rights in the property.
A person who abandons property loses any ownership
The owner of property retains a reasonable expectation of privacy when the owner deliberately places the property in the hands of a bailee, such as a package consigned to a mail or delivery service or luggage consigned to a common carrier.
We hold that the owner of lost or mislaid property, who is in the eyes of the common law an inadvertent bailor, retains a reasonable expectation of privacy in the property, just as she would retain a reasonable expectation of privacy if she were a deliberate bailor who had intentionally consigned the property to a courier, postal service, or common carrier. This expectation of privacy is diminished, however, by the fact that the finder /bailee has an obligation to seek out the owner of the goods and to try to return them.
The Supreme Courts of Hawaii and Maine have similarly concluded under the Fourth Amendment that the owner retains a reasonable expectation of privacy in lost property. In State v. May, the Supreme Judicial Court of Maine held that controlled substances found in the defendant’s misplaced wallet must be suppressed because he did not abandon the wallet and that the contents of the wallet would remain private.
Applying these principles to this case, the trial court correctly determined that Kealey did not abandon her purse.
Justification
The Fourth Amendment renders a search conducted without a warrant per se unreasonable unless it falls within the parameters of " 'a few specifically established and well-delineated exceptions.’ ”
The police officers justified their search on the grounds that they were searching for identification. The police had a right, if not an obligation, to search the purse for identification for the purpose of returning the purse.
Several further reasons support our holding. First, the Fourth Amendment prohibits unreasonable searches, but it does not metamorphose reasonable searches into unreasonable ones simply because the police officers have additional information of wrongdoing. Second, Kealey’s privacy interest in the contents of her purse was already subject to the right of the police to search for identification, and knowledge that Kealey was probably involved in illegal activities does not increase her privacy interest. Third, requiring a search warrant would create a paradox under the circumstances of this case. If we required a warrant, and the magistrate found probable cause to search, then the police would search the purse. But if the magistrate found no probable cause, then the police would be back where they began, and would presumably be entitled to search the purse for identification for the purpose of returning the purse to its owner. Fourth, in the analogous context of inventory searches, courts have held that the presence of an investigatory motive does not invalidate a nonpretexual search to inventory the contents of property seized by police.
Our holding that the police may search lost property for
Article I, Section 7
Kealey asserts that article I, section 7 of the Washington State Constitution precluded a warrantless search of her purse. We do not reach this issue because Kealey did not adequately brief it.
Conclusion
Kealey reasonably expected that the contents of her purse would remain private, except to the extent that the finder of the purse, or the police, might search for identification. We hold that searches of misplaced property for identification are an exception to the Fourth Amendment requirement of a search warrant. When the purse was delivered to the police with the information that the purse contained controlled substances, the additional information did not undermine the right of the police to search the purse for identification. Therefore, we hold that the trial court erred in suppressing the evidence of identification. We reverse and remand for further proceedings consistent with this decision.
Seinfeld, C.J., and Morgan, J., concur.
After modification, further reconsideration denied February 26, 1996.
Review denied at 129 Wn.2d 1021 (1996).
State v. Rivera, 76 Wn. App. 519, 520-21, 888 P.2d 740 (1995).
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)
See Katz, 389 U.S. at 353; Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).
Katz, 389 U.S. at 352.
Smith, 442 U.S. at 737.
Smith, 442 U.S. at 742-43.
Smith, 442 U.S. at 740; see State v. Young, 123 Wn.2d 173, 189, 867 P.2d 593 (1994).
State v. Jones, 68 Wn. App. 843, 850, 845 P.2d 1358, review denied, 122 Wn.2d 1018 (1993).
Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S. Ct. 2556, 65 L. Ed. 633 (1980)). See also John Wesley Hall, Jr., 1 Search and Seizure § 2.6 at 56 (2d ed. 1991).
Katz, 389 U.S. at 351-52 (citations omitted). See State v. Wolohan, 23 Wn. App. 813, 818, 598 P.2d 421 (1979) (upholding use of police dog to sniff shipped package in semipublic area), review denied, 93 Wn.2d 1008 (1980).
Since the purse belonged to her, we infer that Kealey was one of the two women who left the purse in the department store, although there is no direct evidence on this point. Kealey does not contest that she left the purse in the store. This inference does not affect our analysis.
State v. Jordan, 29 Wn. App. 924, 927, 631 P.2d 989 (1981) (by drawing curtains, individuals demonstrated an expectation of privacy, fact that occupants did not completely succeed in drawing curtains does not diminish the reasonableness of their expectation of privacy); State v. McAlpin, 36 Wn. App. 707, 716, 677 P.2d 185 (by locking briefcase, defendant exhibited a legitimate expectation of privacy), review denied, 102 Wn.2d 1011 (1984).
See State v. May, 608 A.2d 772, 775-76 (Me. 1992) (defendant did not intentionally discard wallet and, therefore, did not relinquish expectation of privacy).
Hall, supra, § 13:3 at 568-69. See Rios v. United States, 364 U.S. 253, 262 n.6, 80 S. Ct. 1431, 4 L. Ed. 2d 1688 (1960) ("passenger who lets a package drop to the floor of the taxicab in which he is riding can hardly be said to have ’abandoned’ it”). See also State v. Moore, 29 Wn. App. 354, 359 n.1, 628 P.2d 522 (defendant missed bus but still retained privacy in contents of checked luggage), review denied, 96 Wn.2d 1003 (1981).
People v. Loveless, 80 Ill. App. 3d 1052, 400 N.E.2d 540, 542-43 (1980) (by telling officer to put his coat down, defendant regained privacy formerly relinquished when he placed the coat in a public area).
Jones, 68 Wn. App. at 850 (quoting Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (quoting Rakas v. Illinois, 439 U.S. 128, 144 n.12, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978))).
See Arkansas v. Sanders, 442 U.S. 753, 762, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979) (citing United States v. Chadwick, 433 U.S. 1, 13, 97 S. Ct. 2476, 2484, 53 L. Ed. 2d 538 (1977)).
Sanders, 442 U.S. at 763 n.9.
31 Wn. App. 889, 890, 645 P.2d 63 (1982).
Johnston, 31 Wn. App. at 892.
See Chadwick, 433 U.S. at 13.
22 Hall, supra, § 1:9 at 17.
See, e.g., Rakas, 439 U.S. at 143; Katz, 398 U.S. at 352-53.
Katz, 398 U.S. at 352-53.
Rakas, 439 U.S. at 153 (Powell, J., concurring).
RCW 4.04.010, 9A.04.060.
1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property §§ 11-13 (Rev. ed. 1994).
Id. at § 4.
Id at § 6.
1 Am. Jur. 2d, supra, §§ 15-16.
State v. Tidwell, 23 Wn. App. 506, 508, 597 P.2d 434 (1979); City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365, 370-71 (1975) (suspect who hid eyeglass case while being pursued by the police abandoned any reasonable expectation of privacy).
Roy Andrews Brown, Law of Personal Property § 3.1 at 24 (Walter B. Raushenbush, ed., 3rd ed. 1975).
Brown, supra, § 3.5 at 30. See also 1 Am. Jur. 2d, supra, § 24 at 32-33.
1 Am. Jur. 2d, supra, § 25 at 32-33; § 10 at 14.
State v. Courtsol, 89 Conn. 564, 94 A. 973, 975 (1915).
Maitlen v. Hazen, 9 Wn.2d 113, 124, 113 P.2d 1008 (1941).
State v. Stanphill, 53 Wn. App. 623, 626-27, 769 P.2d 861 (1989); Moore, 29 Wn. App. at 358-59; Wolohan, 23 Wn. App. at 817.
Wolohan, 23 Wn. App. at 817.
See Maitlen, 9 Wn.2d at 124. See generally Brown, supra, at § 3.5.
67 Haw. 107, 678 P.2d 1088, 1092-93 (1984).
Ching, 678 P.2d at 1093.
"[W]e know specifically that this was just a lost item, that it was only lost momentarily, and that it was inadvertent. There was obviously no intention to
See Moore, 29 Wn. App. at 359 n.1.
The store personnel had a right, if not an obligation, to search the purse for identification, which resulted in finding the marijuana and eventually the other drugs. The clerk complicated matters somewhat when she lied to Kealey and her companion, feigning ignorance of the purse and its location. But the clerk’s actions do not change our analysis because the store manager appropriately notified the police and turned the purse and its contents over to them.
State v. Chrisman, 100 Wn.2d 814, 817, 676 P.2d 419 (1984), quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
RCW 63.21.060 imposes on the police the obligation to attempt to notify the owner of the lost property. See also Wayne R. LaFave, 2 Search and Seizure § 5.5(d) at 553 (2nd Ed. 1987), at 171 (Supp. 1995) ("[Cjourts recognize a police
See, eg., United States v. Cannon, 29 F.3d 472, 476 (9th Cir. 1994) ("We have recently said that an inventory search is valid, even if the searching officer had an investigatory motive, as long as the officer would have conducted the search in question anyway pursuant to police inventory practices.”); United States v. Agofsky, 20 F.3d 866, 873 (8th Cir.), cert. denied, 115 S. Ct. 280 and cert. denied, 115 S. Ct. 363 (1994) ("The presence of an investigatory motive, even if proven,
306 Or. 335, 759 P.2d 1092, 1095-96 (1988), cert. denied, 489 U.S. 1011 (1989). While we agree with the Oregon court that the police had the right to search for identification, for the reasons stated above, we disagree with the dictum, "Had the deputies opened the manila envelopes in search of contraband, they would have violated defendant’s state and probably federal constitutional rights.” Pidcock, 759 P.2d at 1096.
110 Or. App. 219, 822 P.2d 148, 149-50 (1991). The search in Morton violated the defendant’s rights because the police searched a closed cigarette case even after finding seven pieces of identification in the purse. Morton, 822 P.2d at 150.
678 P.2d at 1092-93. As in Morton, the search in Ching exceeded a reasonable search when the police opened a sealed container after finding several pieces of identification. Ching, 678 P.2d at 1093.
State v. Cantrell, 124 Wn.2d 183, 190 n.19, 875 P.2d 1208 (1994); See State v. Wojtyna, 70 Wn. App. 689, 691-93, 855 P.2d 315 (1993), review denied, 123 Wn.2d 1007 (1994).
Justice Robert F. Utter, The Practice of Principled Decision-Making in State Constitutionalism: Washington’s Experience, 65 Temp. L. Rev. 1153, 1162 (1992) (quoted in Collier v. City of Tacoma, 121 Wn.2d 737, 765, 854 P.2d 1046 (1993) (Durham, J., concurring)).
State v. Gunwall, 106 Wn.2d 54, 60, 720 P.2d 808 (1986).