State v. Purvis
| Decision Date | 27 March 1968 |
| Citation | 249 Or. 404,438 P.2d 1002 |
| Parties | STATE of Oregon, Respondent, v. Thomas Warren PURVIS, Appellant. |
| Court | Oregon Supreme Court |
William Wiswall, Springfield, argued the cause for appellant. With him on the brief were Sanders, Lively, Camarot & Wiswall, Springfield.
John E. Moore, Deputy Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was John B. Leahy, Dist. Atty., Eugene.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.
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 brought them out in a flat cardboard box to Matoon. If they had followed their usual procedure, they would have dumped the trash into a bag on their cleaning cart.
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:
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.
'* * *
'* * *
'* * *
'* * *
'
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 warrantless search and seizure by the police under the circumstances and a seizure of the property of defendant would therefore violate the Fourth Amendment and its counterpart in our own constitution. 1 It is arguable that under such circumstances the product of the search would not be admissible in evidence even if it consisted of an item which would have been removed by the maids in the usual course of cleaning the room without any direction from the police. 2 However, we are not required to decide that question in this case because, as we interpret the evidence, the trial court was entitled to regard the direction given to the maids as limited to the removal of items which would otherwise to removed in the normal process of cleaning the room.
Under these circumstances a different problem is presented. The items collected by the maids were destined to be thrown away. The evidence in this case would support a finding that the maids were authorized by defendant to clean the room when they did and to remove the trash, including the cigarette butt found on the floor of the room. Defendant's claim to privacy terminated with respect to items discarded by him and which he impliedly authorized to be hauled away. Certainly, once the discarded items were outside of the room they were in the public domain and open to inspection by anyone. 3 And so, in the present case if the police had given no instructions to the maids and simply waited until the trash from room 705 was brought out into the hallway and then intercepted it, defendant would have had no legitimate claim to privacy in the items examined. 4 The same result would obtain if the assistance of the maids was enlisted only to the extent of requiring them to deliver the trash to the police so that it could be examined by them.
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 keeping the objects from room 705 separate from the objects taken from the other rooms was helpful to the police and, in fact, could be regarded as a part of the process of search, we do not think that the recruitment of the maids by the police for this purpose constituted an invasion of defendant's constitutional right of privacy.
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.
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 enter an office or a home or any...
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