STATE OF OREGON, Respondent, v. THOMAS WARREN PURVIS, Appellant.
Supreme Court of Oregon
Argued December 4, 1967, affirmed March 27, 1968
438 P.2d 1002 | 249 Or. 404
John E. Moore, Deputy District Attorney, Eugene, argued the cause for respondent. With him on the brief was John B. Leahy, District Attorney, Eugene.
Before PERRY, Chief Justice, and MCALLISTER, SLOAN, O‘CONNELL, GOODWIN, DENECKE and HOLMAN, Justices.
O‘CONNELL, J.
This is an appeal from a judgment of conviction for the crime of illegal possession of narcotics.
Defendant rented a room at the Eugene Hotel. The Eugene Police Department was informed by employees of the hotel that they suspected defendant of using narcotics. Detective Matoon of the Eugene Police Department went to the hotel and made inquiry of the manager of the hotel and other employees concerning defendant‘s activities. Matoon, learning that defendant was occupying room 705 went up to the seventh floor of the hotel where he enlisted the help of two maids who were in the process of cleaning and making ready the rooms on that floor. He asked them to keep the trash from room 705 separate from the trash collected from the other rooms. He explained to them that he thought that defendant was using narcotics and that he wanted to examine the trash taken from the room for narcotics. More specifically, he instructed them to look for “homemade cigarettes.” During this time the hotel manager came up to the seventh floor and instructed the maids to commence cleaning room 705. The maids went into the room at approximately 2:30 p.m. and began cleaning the room. They deposited all items which they regarded as waste or trash and
Matoon examined the contents of the receptacle brought to him while the maids returned to room 705 and resumed their cleaning. They then found on the floor between the bed and a chair a cigarette butt wrapped in a cardboard cover of a matchbook. They decided that this was what the officer was looking for so they brought it out to him. Matoon tentatively identified the butt as containing marijuana.
Thereafter Matoon sought out defendant and arrested him for illegal possession of narcotics. Following the arrest, the officer searched defendant and seized another cigarette butt similar in appearance to that which was found in the hotel room, a wax paper bag containing marijuana, and a book of brown cigarette papers.
It is the state‘s position that the police did not engage in an unlawful search and seizure because the hotel maids did not remove from the room any item which they would not have removed in the customary course of their work and that the only deviation in their usual cleaning procedure was to allow the police officer to examine the trash removed from the room.
Defendant first contends that the maids had no right to clean the room when they did because he had instructed them not to clean it until after he checked out. The maids’ testimony left in doubt the precise instructions defendant gave them with respect to cleaning the room. We are of the opinion, however, that the evidence was sufficient to establish that when the maids entered room 705 at 2:30 p.m. they were privileged to enter.
The state takes the position that the maids did not engage in a search of the premises on behalf of the police, but simply performed their regular duties in cleaning the room. The only deviation from their normal method of cleaning the room, it is argued, was in allowing the police officer to examine the trash before it was dumped into the bag on the cleaning cart.
Officer Matoon testified as follows:
“* * * I had asked the maid cleaning the 7th Floor that when she cleaned Room 705, that I would like to see the contents that she would normally remove * * *. I didn‘t ask them to look for anything in the room. * * * I asked them if they would keep the trash from the room separate from the other trash that they had in their cart, so that I could examine it * * *. That, as they thought Mr. Purvis was using narcotics, that I wanted to examine the contents of the room for any narcotics.”
Ethel Simmons, one of the maids, testified as follows:
“Q. Can you tell us what the conversation [with Officer Matoon] concerned, to the best of your recollection?
“A. Something that we were supposed to be looking for when we cleaned the room.
“Q. What did he tell you to look for?
“A. A homemade cigarette.
“Q. Then he told you, specifically to look for a homemade cigarette?
“A. Yes.
“* * *
“Q. * * * [T]ell us what you did while you were in the room.
“A. Well, we were supposed to—We gathered
all the trash and took it so that the officer could look it over. “* * *
“Q. Now, when you were in the room, were you looking for cigarette butts for the officer?
“A. Yes.
“* * *
“Q. As I understand your testimony, he told you to look for homemade cigarettes when you cleaned the room?
“A. Uh-huh.
“* * *
“Q. And what did he tell you to do if you found any homemade cigarettes?
“A. He wanted to look at it.
“Q. In other words, he told you to look for homemade cigarettes, and if you found any, he wanted to look at them?
“A. Yes, we were to bring them to him.
“* * *
“Q. You had been specifically directed by the police, or requested to look for cigarette butts and give them to them.
“A. Yes.”
We interpret this testimony to mean that officer Matoon requested the maids to bring to him only those items, including homemade cigarettes or cigarette butts, which would normally be removed in the usual course of cleaning a hotel room.
If the officer had requested the maids to search for a cigarette without regard to whether it would be removed in the usual course of cleaning the room, a different problem would be presented. In such a case the direction to search would be broad enough to embrace items which would not be subject to a warrant-
In the present case the maids were recruited by the police to carry on a form of search within the room, but only for items which had been discarded by defendant and which eventually would be available to the police for inspection even if no instructions had been given. Although the cooperation of the maids in
The objects which defendant deposited in the ash trays and waste baskets can be regarded as abandoned property. During the time the discarded property remained in the room the police were not entitled to seize it, not because defendant claimed a right of privacy in these items, but because the right to the privacy of the room itself would be invaded by such a seizure. However, the removal of the contents of the ash trays and waste baskets into the hallway by the maids, who were privileged to be in the room and were authorized to remove trash in cleaning it, did not constitute an unlawful invasion of defendant‘s privacy. The cigarette butt found on the floor is not essentially different from the trash found in the ash trays and waste baskets. Although it may not have been actually abandoned, it was indistinguishable from the other items normally discarded by hotel guests and defendant, having at least impliedly authorized the removal of trash from the room, is not entitled to have the removal of the cigarette butt regarded any differently than the other trash in the room.
The judgment is affirmed.
SLOAN, J., dissenting.
The majority adopt the “silver platter” doctrine to searches conducted by hotel maids. The same rule would necessarily apply to any other person who can, at the insistence of government agents, permissively
The rule, as enunciated in Byars v. United States, 1927, 273 U.S. 28, at 33, 47 S. Ct. 248, 71 L. Ed. 520, was that the federal government could “* * * avail itself of evidence improperly seized by state officers operating entirely upon their own account. But the rule is otherwise when the federal government itself, through its agents acting as such, participates in the wrongful search and seizure.” And see, Lustig v. United States, 1946, 338 U.S. 74, 69 S. Ct. 1372, 93 L. Ed. 1819, where the federal officers waited until the state officers had entered a hotel room, with a key provided by the manager of the hotel, and searched the room and delivered the evidence to the federal officer. The court suppressed the evidence.
Another equally serious shortcoming is that this procedure “* * * bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification * * *.” Beck v. Ohio, 1964, 379 U.S. 89, 96, 85 S. Ct. 223, 13 L. Ed. 2d 142. Although the record is silent on the matter, it is altogether possible that the hotel manager‘s reason for
But it is claimed that what happened here was not a search because the maids were merely instructed to deliver to the officer the ordinary and usual debris. The evidence and the trial court‘s findings do not support such a conclusion. The trial court found that the maids were specifically directed to look for homemade cigarettes or cigarette butts. They were directed to look and search, not just perform the mechanical task of emptying wastebaskets. Furthermore, when the usual trash was brought to the officer, it did not contain the evidence he was exploring for. It required further searching by the maids to find the cigarette butt that contained marijuana. This cannot be glossed over as merely examining the contents of wastebaskets or ash trays—it was a search. The majority does admit that the cigarette butt was not abandoned. More significantly, neither was the room abandoned. In Abel v. United States, 1960, 362 U.S. 217, at 241, 80 S. Ct. 683, 4 L. Ed. 2d 668, the court only approved the search for trash in a hotel room as abandoned property “for the reason that at the time of the search petitioner had vacated the room.”
But more importantly, and why it is substantially identical to the silver platter doctrine, it allows the use of an agent to accomplish what the police cannot do.
In Katz v. United States, 1967, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576, the court struck down two untenable doctrines it had previously followed. One, was that a trespass into a prohibited area was necessary before a search was unlawful and secondly, that the police could not use an electronic aid to gain access to evidence that was otherwise inaccessible. The court
As long ago as Gouled v. United States, 1921, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647, the court prohibited this kind of intrusion. The court‘s language in Gouled is worthy of quotation:
“The prohibition of the Fourth Amendment is against all unreasonable searches and seizures and if for a Government officer to obtain entrance to a man‘s house or office by force or by an illegal threat or show of force, amounting to coercion, and then to search for and seize his private papers, would be an unreasonable, and therefore a prohibited search and seizure, as it certainly would be, it is impossible to successfully contend that a like search and seizure would be a reasonable one if only admission were obtained by stealth instead of by force or coercion. The security and privacy of the home or office and of the papers of the owner would be as much invaded and the search and seizure would be as much against his will in the one case as in the other, and it must therefore be regarded as equally in violation of his constitutional rights.
“Without discussing them, we cannot doubt that such decisions as there are in conflict with this conclusion are unsound, and that, whether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the Government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence falls within the scope of the prohibition of the Fourth Amendment, * * *” (Emphasis supplied). 255 U.S. at 305, 306.
Gouled was tacitly overruled in Warden v. Hayden, 1967, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782, but only to the extent that Gouled had held that a search warrant did not permit the seizing of mere evidence, a part of the Gouled opinion unrelated to the foregoing quotation. The majority are unable to cite a single authority that permits the conduct allowed by the majority in the instant case and denounced in the above quote.
The cases that are somewhat similar to the instant situation have reached the result required by Gouled.
Stoner v. California, 1964, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856, is important because it refutes and denies the argued right of a hotel employe to permit entry into an occupied hotel room in the absence of the occupant of the room. It does not answer this condemnation to say in the instant case that the employes entered in the usual course of hotel cleaning. This is sophistry. The employes entered at the direction of the police, consented to by the manager and contrary to the express order of defendant.
In Chapman v. United States, 1961, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828, the court suppressed distilling equipment found by officers when they were led, by the landlord, into a house occupied by a tenant for the ostensible purpose of checking alleged waste to the premises. The court there recognized the subterfuge for what it was. McDonald v. United States, 1948, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153, involved entry into a room in a rooming house after the officers were aware that a crime was being committed in the room. In McDonald, as here, the prosecution argued that the police had no probable cause to obtain a warrant. The court responded by saying there was no evidence of an emergency or other exceptional circumstances that “* * * excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” 335 U.S. at 456.
In Johnson v. United States, 1948, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436, the court denounced entry into a hotel room from which the smell of opium was coming.
The substance that comes through the grist mill of these and many other cases beginning in specific language, with Agnello v. United States, 1925, 269 U.S. 20, 33, 46 S. Ct. 4, 6, 70 L. Ed. 145, after observing that no state or national statute or court had permitted entry into a house without a warrant except in extreme cases, the court said “Absence of any judicial approval is persuasive authority that it is unlawful. * * * Belief, however well founded, that an article is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.” There have been some exceptional de-
This protection fails when, and only when, the person voluntarily exposes the evidentiary material or it is seized after lawful arrest. If there is doubt of that statement it can be further verified by examining the opinion in Rios v. United States, 1960, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688, where the court set aside a conviction for concealment of narcotics based on the search of a taxicab occupied by defendant Rios. The case was remanded for a determination as to whether or not the defendant had voluntarily exposed the narcotics before the police arrested him. In the absence of such a showing, the search was invalid. This also is the clear impact of Lewis v. United States, 1966, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312.
In State v. Cartwright, 1966, 246 Or. 120, 418 P.2d 822, cert den 386 U.S. 937 (1967), the majority mistakenly held that so long as there was no physical intrusion into protected rights that exploratory search was permissible. Here, the majority say the same thing only here the intrusion is by human aid. The distinction cannot be sanctioned for long and sooner or later the intrusion permitted by the majority must be overruled. The obvious connotations of this decision are too vicious to last.
The evidence should be suppressed.
Notes
“But the evidence would be excludable in the present case even if the TWA employee had not acted solely to satisfy the government‘s interest in viewing the contents of the package, but instead had initiated and participated in the search for reasons contemplated by the inspection clause in TWA‘s tariff. The customs agents joined actively in the search.” 367 F.2d at 5.