State v. Taylor

• Decision Date: 25 November 1998
• Docket Number: No. 31258,31258
• Citation: 968 P.2d 315,114 Nev. 1071
• Parties: The STATE of Nevada, Appellant, v. Derrick Augustus TAYLOR, Respondent.
• Court: Nevada Supreme Court

Page 315

968 P.2d 315

114 Nev. 1071

The STATE of Nevada, Appellant, v. Derrick Augustus TAYLOR, Respondent.

No. 31258.

Supreme Court of Nevada.

Nov. 25, 1998.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, and Gerald Gardner, Deputy District Attorneys, Clark County, for Appellant.

Patrick E. McDonald, Las Vegas, for Respondent.

OPINION

PER CURIAM:

On March 26, 1996, a Las Vegas Metropolitan Police ("LVMPD") narcotics detection dog "alerted" to the presence of narcotics in a suitcase in the baggage transfer area at McCarran International Airport in Las Vegas. The bag was locked and bore a computerized numbered claim tag with the name "Gillis, Sarin." The final destination of the bag was Newark, New Jersey. The detective ("Kelley") working with the dog detained the bag, contacted LVMPD Detective Butterfield ("Butterfield"), relayed the information, and asked Butterfield to attempt to contact Sarin Gillis in the terminal.

Butterfield then recalled observing a woman, who seemed very disoriented and confused, deplane from a flight from Burbank, California. Butterfield and LVMPD Detectives McGowan ("McGowan") and Briscoe ("Briscoe") proceeded to the departure gate for the flight to Newark and observed the same woman. They approached, identified themselves, and inquired whether they could ask her a few questions. She agreed.

The woman indicated that she was traveling from "Los Angeles somewhere" to Newark and agreed to show Butterfield her ticket. The airline ticket was issued in the name of "Sarina Gillis" for travel from Burbank to Las Vegas with a connection to Newark. The baggage claim ticket stapled inside the airline envelope was issued to "Gillis, Sarin," and its number, HP-724397, matched the number on the bag on which the narcotics detection dog had alerted.

Butterfield asked Gillis if she had a key for the lock, to which Gillis replied in the negative. Upon inquiry as to how she was going to open the bag at her final destination, Gillis shrugged her shoulders and stated that "she did not know."

Although Gillis denied packing the checked bag, she also stated that the bag belonged to her uncle who had done the packing, but that she had checked it and was taking it to Newark. Butterfield then informed Gillis that the dog had alerted on the bag for the presence of narcotics. Gillis denied knowing why and consented to a search of the bag and to LVMPD'S breaking of the lock. After Briscoe advised Kelley of the consent by radio transmission, Gillis stated that she was traveling with her uncle, "Derrick Taylor."

Kelley cut the lock on the suitcase and examined the contents, finding several cellophane bundles containing a green leafy substance that were wrapped in men's clothing. Upon notification that the suitcase apparently contained contraband, Butterfield asked Gillis to accompany the detectives to the police substation.

At the substation, in the presence of Kelley, Gillis reiterated that she had checked the suitcase with the airline, that it belonged to her uncle and, further, that she was unaware of its contents. Twenty-eight pounds of marijuana were recovered from the suitcase. Gillis was then placed under arrest.

Meanwhile, the detectives learned that Gillis and appellant, Derrick Taylor ("Taylor"), were traveling under the same reservation through Las Vegas to Newark, New Jersey. With this information, officers approached Taylor and identified themselves. Taylor then consented to an interview.

Taylor confirmed that he was traveling from Burbank to Newark. With Taylor's permission, officers examined Taylor's ticket and noted the identical itineraries. This notwithstanding, Taylor claimed to be traveling alone, denied knowing anyone on the flight from Burbank, including "Sarina Gillis," and denied carrying contraband. He then consented to a search of his person and carry-on luggage.

After finding what they believed was a luggage key, the detectives detained Taylor and escorted him to the substation to determine whether the key fit the suitcase. Taylor consented to the detention. Upon reaching the substation, the officers found that Taylor's key did not fit the lock.

A comparison of the separate tickets issued to Gillis and Taylor confirmed the following: the tickets appeared to have been written by the same person and matched the writing on the envelope in Gillis' possession; both tickets were purchased through the same travel agent; both tickets were purchased on March 26, 1996, with the same reservation number of JRKENH; the ticket numbers were consecutive; and the total fare for the two tickets was $725.00, paid in cash.

Butterfield also noted the handwritten names of D. Taylor and S. Gillis on a white business envelope in Gillis' possession. Additionally, a search of Gillis' handbag incidental to Gillis' arrest revealed a Wyndham Hotel room receipt in the name of Derrick Taylor, showing a one-night stay, check-in on March 25, and check-out on March 26, 1996. Taylor's pants pocket contained a piece of paper with the letterhead of the Wyndham Hotel. Following these discoveries, Taylor was placed under arrest.

Gillis waived her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), after Taylor's arrest. Gillis then stated that Taylor was not her uncle, that he was a friend whom she had known for a couple of months and dated a couple of times, that he had paid her airfare to Los Angeles, and that she was not being paid any money to transport marijuana back to Newark. Although Gillis again denied knowing the contents of the suitcase, she stated that Taylor told her that he had flown to Los Angeles to give someone money and that she believed the money was in the suitcase. Gillis denied ever seeing the contents.

En route to the Clark County Detention Center, the transporting officer advised Taylor of his Miranda rights. Taylor indicated that he understood his rights and then waived them. Upon reaching the detention center, Taylor admitted he knew Gillis and was very concerned for her "because she had never done anything like this before." Taylor also confessed that the marijuana and clothing found in the suitcase belonged to him, that he had purchased both of the airline tickets, that the lock was a built-in "safeguard" to deter police from opening the suitcase, and that the lock would have been cut off at their final destination.

Taylor was charged in separate counts with possession of a controlled substance, conspiracy to sell a controlled substance, and transportation of a controlled substance. Taylor moved the district court to suppress the evidence found inside the suitcase and the statements made by him, arguing that the search of his suitcase was illegal because Gillis had no authority to consent to the search, and that his statements at the airport and at the detention center were the product of an illegal search and seizure.

The court granted Taylor's motion to suppress the evidence and the statements, concluding:

It is true that [Gillis] was at the McCarran International Airport. She had her ticket, along with that ticket were baggage claims for the various luggage. Like counsel has indicated she did identify that that baggage belonged to her uncle. The state's correct at one point we have a common situation that the luggage always belongs to somebody else. Based upon the information I have that the luggage was not necessarily marked with any identifiable information that it actually belonged to another party and the party was there in the airport and based upon the totality of the circumstances I'm going to grant your motion to suppress as to both issues because we find that the officers in this case, their actions not reasonable under the circumstances.

We reverse.

Taylor's standing to assert a Fourth Amendment violation.

The state failed to raise the issue of standing before the district court. Generally, failure to raise an issue below bars consideration on appeal. See Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991). However, this court will address constitutional issues raised for the first time on appeal. See McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983).

The state contends that Taylor has no standing to object to the police's search of his suitcase because he had no reasonable expectation of privacy in the contents of the suitcase. Specifically, the state asserts that Taylor effectively abandoned his suitcase when he relinquished exclusive control of it to Gillis and disclaimed ownership of it by denying that he knew her.

In order to assert a violation under the Fourth Amendment, one must have a subjective and objective expectation of privacy in the place searched or items seized. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). A person who voluntarily abandons his property has no standing to object to its search or seizure because he "loses a legitimate expectation of privacy in the property and thereby disclaims any concern about whether the property or its contents remain private." United States v. Veatch, 674 F.2d 1217, 1220 (9th Cir.1981).

Whether a person has abandoned his property is a question of intent, which we infer from words, acts, and other objective facts. See United States v. Jackson, 544 F.2d 407, 409 (9th Cir.1976). "Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search." Id.

We conclude Taylor did not abandon his suitcase. An individual does not abandon property upon a mere failure to openly exercise control over it prior to its search or where access and control over the property is shared with a third party. See United States v. Canada, 527 F.2d 1374, 1378 (9th Cir.1975...