State v. Kealey

Decision Date19 December 1995
Docket NumberNo. 17527-4-II,17527-4-II
Citation907 P.2d 319,80 Wn.App. 162
PartiesThe STATE of Washington, Appellant, v. Carolyn Ann KEALEY, Respondent.
CourtWashington Court of Appeals
Winnifred Ann Clements, Cowlitz County Pros. Atty. Office, Kelso, for Appellant

Steven Whitman Thayer, Thayer & Muenster, Vancouver, for Respondent.

WIGGINS, Judge.

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

expected that her purse would remain private. We further hold that police may search misplaced property for identification without a search warrant. The police officers' knowledge of the presence of unlawful drugs did not undermine the right to search for identification. We reverse the trial court's order suppressing the identification evidence and remand for trial.

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 make-up 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 make-up 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 make-up 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 makeup bag that had been left on her desk. She picked it up and smelled marijuana. She unzipped the make-up bag and saw a baggie containing what appeared to be marijuana. The department manager incorrectly assumed that the make-up bag belonged to the clerk. The assistant store manager searched the bag and found, not only the baggie of marijuana, but also a larger package containing a white powdery substance and a smaller bag containing a hard rock crystal substance.

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. 1

                States Constitution and article 1, section 7 of the Washington State Constitution.  The court suppressed all evidence seized during the search.  The court determined that "[b]ut-for the unlawful search of the purse law enforcement would have had no means of locating and/or identifying Carolyn Kealey."   Consequently, the court suppressed all evidence gained from the sting operation as fruits of the unlawful purse search.  The trial court dismissed the charges against Kealey because of the lack of identification tying her to the drugs
                

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. 2 Katz and following cases have held that a search occurs if the police intrude into affairs in which a person has a reasonable expectation of privacy. 3 The Katz court found a search when government agents monitored the defendant's 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? 7 These subjective and objective elements tend to merge into one another.

                conversation in a public telephone booth, and held that the defendant was entitled to assume that the words he uttered into the mouthpiece would not be broadcast to the world. 4  By contrast, the Court held that there was no search in  Smith v. Maryland when government agents installed a pen register at the telephone company to monitor telephone numbers dialed by the defendant. 5  The  Smith court reasoned that people do not expect dialed telephone numbers to remain confidential. 6
                
Subjective Expectation of Privacy

The burden is on the defendant to establish a subjective expectation of privacy. 8 The court must determine whether the defendant "took normal precautions to maintain his [or her] privacy." 9 "What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection. But what he [or she] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." 10

Kealey demonstrated she took normal precautions to Misplacing the purse is not enough to demonstrate that she did not seek to keep it private. 13 "Just because the accused temporarily relinquishes physical possession of the object, he [or she] does not ipso facto forego his [or her] expectation of privacy." 14 By returning shortly after misplacing the purse, Kealey demonstrated that she sought to preserve the privacy of her purse. 15 Kealey subjectively expected that the contents of her purse would remain private.

                preserve the privacy of her purse. 11  The purse was zipped shut and closed to public viewing.  She left the purse in the area where she was trying on shoes.  It was left unattended for only a few minutes before the women returned for the purse.  Engaging the assistance of the store manager and the clerk, the women searched the shoe department and the rest of the store for the purse.  The fact that Kealey did not succeed in regaining her purse is not critical to our analysis;  rather, we focus on her efforts to maintain her privacy. 12
                
Reasonable/Objective Expectation of Privacy

An expectation of privacy must be reasonable, i.e., one "rooted in 'understandings that are recognized and permitted by society.' " 16 Purses, briefcases, and luggage constitute traditional repositories of personal belongings protected under the Fourth Amendment. 17 The very purpose of a purse is to serve "as a repository for personal, private effects" when one wishes to carry them. 18 In State v. Johnston, police arrested the defendant at the restaurant where she worked and seized her purse from a nearby trailer office. 19 The police then searched the purse without a warrant, and this court suppressed the results of the search, stating: "It would be difficult to define an object more inherently private than the contents of a woman's purse. Most certainly there was a reasonable expectation of privacy in the contents of Mrs. Johnston's purse." 20 Thus, a purse is inevitably associated with an expectation of privacy. 21

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 We recognize that Fourth Amendment interests are not coextensive with common law...

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