State v. Flynn, 84-393

• Decision Date: 16 January 1985
• Docket Number: No. 84-393,84-393
• Citation: 360 N.W.2d 762
• Parties: STATE of Iowa, Appellee, v. James Joseph FLYNN, Appellant.
• Court: Iowa Supreme Court

Page 762

360 N.W.2d 762

STATE of Iowa, Appellee, v. James Joseph FLYNN, Appellant.

No. 84-393.

Supreme Court of Iowa.

Jan. 16, 1985.

Lylea M. Dodson, Des Moines, and William L. Kutmus and Mark S. Pennington of Kutmus & Pennington, P.C., Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Steven K. Hansen, Asst. Atty. Gen., and Dan L. Johnston, Co. Atty., for appellee.

Considered en banc.

WOLLE, Justice.

Defendant James Joseph Flynn was tried and convicted on one count of keeping a gambling house in violation of Iowa Code section 722.5 and five counts of bookmaking in violation of Iowa Code section 725.7. Defendant contends the trial court committed error of constitutional magnitude when it admitted into evidence the contents of cassette tapes found by a private citizen and delivered into the custody of police. Finding no error, we affirm the convictions.

An abbreviated, jury-waived trial resulted from the parties' stipulation to most of the pertinent facts. Because defendant's only ground of appeal is that the admission of seized records violated his constitutional rights under the Fourth Amendment, we make an independent de novo review of the totality of the relevant circumstances. State v. Eubanks, 355 N.W.2d 57, 58 (Iowa 1984).

In December of 1982, defendant learned that his home was under police surveillance. As a result, he decided to move certain records of financial transactions located in his home to a different location. The records in question consisted of thirty-three cassette tapes, two notebooks, two sheets of paper with names and numbers, and a ledger book. Defendant considered various locations for the records, and he decided to transfer these records to a locker contained in a locked Quonset building on the premises of the Urbandale Golf and Country Club of which he was a member. The Quonset building in question was the location where defendant stored his motorized golfing cart during the winter season when the club was closed.

On December 11, 1982, defendant took these records in two paper sacks to the golf club grounds. The club was closed for the season. Defendant observed no one in the area. The area was not visible to the general public, was fenced, and was posted with "no trespassing" signs. When defendant reached the building, his key would not unlock the door. Believing he had brought the wrong key, defendant temporarily placed the two sacks containing the records beneath a tarpaulin which was covering a quantity of peat moss used for golf course maintenance. Defendant then left the golf club premises to obtain the proper key. He did not return for approximately two and one-half hours. When he returned the sacks and their contents had disappeared.

After being indicted on the present charges, defendant learned that the records in question were in the hands of the police. He moved to suppress these records on the basis that they had been obtained as a result of an illegal search contrary to the guarantees of the fourth amendment to the federal constitution. At the suppression hearing the evidence disclosed that a private person had found the records in question beneath the tarpaulin where defendant had left them. That person had called a police officer with whom he was acquainted, and on the officer's advice the private person brought the records to the police station. There the police officer looked at the records, played two cassette tapes, and learned the identity of defendant and the nature of his gambling activity. He then turned the sacks of records and tapes over to vice investigation officers.

The defendant sought the identity of this private citizen, but the trial court refused to require the disclosure of that person's name. In lieu of such a disclosure, the trial court conducted an in camera hearing out of the presence of defendant and his counsel with respect to the circumstances under which the records in question came into police possession. In its ruling denying the motion to suppress, the court made a finding of fact, not challenged on this appeal, that the private person who found the records was not working for or under the direction of the police before he made his phone call to the police officer with whom he was acquainted. The court held that the actions of the police officers had not rendered illegal the private person's initial seizure of the two sacks of records.

The case was tried to the court. Three witnesses testified that they had placed bets with the defendant. The parties stipulated to the testimony of a police officer who had listened to the cassette tapes. The contents of the tapes implicated defendant in illegal betting activities. The district court found from this evidence that defendant was guilty of five counts of bookmaking and one count of keeping a gambling house.

Defendant contends on appeal that the private citizen status of the initial finder of the two sacks of records did no more than excuse that person's seizure of the records at the golf club. Defendant argues that the police officers' warrantless playing of the cassette tapes infringed his Fourth Amendment privilege against an unreasonable search and seizure of his personal effects. The State responds that no warrant was required because the defendant left the sacks of records in a place where he had no reasonable expectation of privacy in their contents. Analogizing from cases involving seizure of contraband in open fields, the State argues that defendant could not reasonably expect the records to retain their protected status when all 100 members of the private club, their guests, and other persons frequenting the grounds would have ready access to them.

The Fourth Amendment protects only against the government's intrusion upon a person's legitimate expectation of privacy. State v. Manning, 323 N.W.2d 217, 218 (Iowa 1982). The correct test of legitimacy is not whether the individual has chosen to conceal some private activity but "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Oliver v. United States, 466 U.S. 170, ----, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214, 227 (1984); see United States v. Jacobsen, 466 U.S. 109, ----, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, 94 (1984) ("A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed."). The question we must answer under the circumstances of this case--and which we answer in the negative--is whether the defendant was entitled to expect that his sacks of records would be protected from a government search, regardless of who might discover them, when he placed them temporarily under a tarpaulin-covered pile of peat moss at his golf club.

We have previously noted that the place where seized property is located may be so exposed as to negate any reasonable expectation of privacy. See State v. Kramer, 231 N.W.2d 874, 879 (Iowa 1975); State v. Davis, 228 N.W.2d 67, 72 (Iowa 1975). Moreover, since the United States Supreme Court first stated its "open fields" doctrine in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), it has been clear that the location of property seized by authorities may be of critical importance in determining whether the search and seizure were lawful. In Hester, federal revenue agents trespassed upon an open field to seize broken bootleg-whiskey containers in an open field where defendant had dropped them. The court rejected Hester's Fourth Amendment contention, holding

[T]he special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law.

265 U.S. at 59, 44 S.Ct. at 446, 68 L.Ed. at 900. Since Hester, courts have struggled to decide whether places where contraband has been found were more like an open field or a private residence. See Conrad v. State, 63 Wis.2d 616, 218 N.W.2d 252 (1974) (discussing numerous cases applying or rejecting "open fields" doctrine, then holding doctrine applicable to body covered by rocks in field).

The United States Supreme Court has now eased somewhat the difficulty of applying the open fields doctrine in borderline cases. In Oliver v. United States, --- U.S. ----, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), a case decided after the trial court admitted into evidence defendant's sacks of records and tapes, the Court reaffirmed the open fields doctrine and elaborated on reasons why it matters where a person places the items which later are the subject of a search and seizure.

Oliver decided two cases with slightly differing factual circumstances. In one case, two narcotics agents went to a farm to investigate reports of marijuana cultivation. At the farm, they drove past a locked gate with a "no trespassing" sign. The agents walked around the gate and found a field of marijuana over one mile from the defendant's home. The Court affirmed the conviction of defendant for manufacturing a controlled substance. In the second case, two police officers entered woods behind the defendant's house and found marijuana patches. They thereafter seized marijuana using warrants which were premised on information obtained during the warrantless search of the woods. The warrants were upheld.

The Court concluded that neither defendant had a reasonable expectation of privacy in the controlled substances found in open fields, even though governmental authorities had trespassed in locating the substances. The Court explained how location of contraband relates to the determination whether an expectation of privacy is legitimate and reasonable.

[O]pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.

There is no societal interest in protecting the privacy of those activities, such as the...