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Young v. State (7/3/2003) ap-1886
Young v. State (7/3/2003) ap-1886
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRIAN T. YOUNG, )
) Court of Appeals No.
A-8056
Appellant, )
Trial Court No. 3AN-00-1113 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1886 July 3, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Cynthia L. Strout, Anchorage,
for Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
A police officer saw Brian Young shove a small object
underneath a motel door, in an apparent attempt to hide the
object from the officer. The officer handcuffed Young, then
reached under the door and retrieved two crumpled pieces of
tissue paper. The officer opened the tissue paper bundles and
found several rocks of crack cocaine.
The State offers one justification for the officers act
of seizing and then opening the two tissue paper bundles: the
State asserts that Young abandoned the tissue paper bundles when
he shoved them under the door. We disagree. We conclude that
Youngs conduct did not constitute an abandonment of this
property, but rather an attempt to conceal it.
Because the officer observed Youngs attempt to conceal
the property, the officer would have been authorized to seize
(but not necessarily open) the tissue paper bundles under the
plain view doctrine if the officer had had probable cause to
believe that the tissue paper bundles were evidence of a crime.
But the State does not argue that the officer had probable cause
to believe that the tissue paper bundles contained illicit drugs
at least, not until he opened them. It therefore appears that
the seizure of the tissue paper bundles was unlawful. Moreover,
even assuming that the seizure of the tissue paper bundles was
lawful, the officer had no authority to open the bundles without
a warrant because these bundles were not distinctive, single-
purpose containers for transporting drugs. Therefore, the
cocaine found inside the tissue paper bundles must be suppressed,
and Youngs conviction must be reversed.
Underlying facts
Around midday on February 6, 2000, several
Anchorage police officers responded to a disturbance at
the Mush Inn Motel in Anchorage. While the officers
were wrapping up their investigation, one of them
noticed a young man (Brian T. Young) poke his head
around the corner of a building. When Young observed
the officers, he looked surprised, and then he ducked
back out of the officers sight.
Officer Pablo Jos‚ Paiz decided to
investigate. When Paiz went around the corner, he saw
Young and another man conversing in an entryway inside
the hotel. When these two men saw Paiz approaching,
they separated and went in different directions: Young
went down the stairs, while the other man went up.
Paiz decided to follow Young down the stairs.
As he was coming down the stairs, Paiz saw Young
crouching down on his knees, using both hands to
shov[e] ... something white under a doorway. Paiz
believed that Young was trying to hide something from
him.
Paiz walked up to Young and immediately
handcuffed him. Paiz asserted that he did this to
protect his own safety. (Young was not armed, and he
made no aggressive movements, but the hallway in which
they were standing was confined, and there were three
closed doors nearby.)
After handcuffing Young, Paiz asked Young to
tell him what he had shoved under the door. Young
replied that he had not shoved anything under the door
that he had simply been picking up a condom that he had
dropped.
When back-up officers arrived, Paiz had them
escort Young out of the hallway and back into the
entryway. Paiz then swept his fingers under the door.
He discovered two opaque pieces of crumpled tissue
paper. Paiz opened these tissue paper bundles and
found several rocks of crack cocaine. Based on this
discovery, Young was indicted for fourth-degree
controlled substance misconduct.1
Did Young abandon the tissue paper bundles (for
purposes of search and seizure law) when he tried to
hide them under the door?
Before trial, Young asked the superior court
to suppress the cocaine. Among other things, Young
argued that suppression was required because (1)
Officer Paiz lacked reasonable suspicion of criminal
activity when he seized and handcuffed Young, and
(2) Officer Paiz lacked the authority to open the
tissue paper bundles without a search warrant. Young
renews these arguments on appeal.
The State contends that Youngs first argument
(unlawful seizure of his person) is moot because
Officer Paizs discovery of the cocaine did not stem
from the officers act of stopping and handcuffing
Young. With one exception (which we will explain), we
agree with the State. Paiz observed Young shoving
something white under the motel door while Paiz was
coming down the stairs, before the officer made contact
with Young. Even if the ensuing detention of Young was
illegal, this illegal detention did not give rise to
the officers knowledge that Young had just shoved
something under the door.
However, even though Paiz had seen Young
shove the tissue paper bundles under the door, there is
substantial reason to believe that the officer would
not be authorized to reach under the door and seize
Youngs property unless the officer already had probable
cause to believe that this property contained
contraband or was otherwise evidence of a crime. The
parties do not address this issue in their briefs.
However, as Professor LaFave explains in his treatise
on the law of search and seizure:
It is ... important to understand that
while the ... observation [of an object in]
plain view ... settles the lawfulness of the
observation itself, it does not determine
whether [an ensuing] seizure of the observed
object would likewise be lawful. ... [This]
point was made by the [United States] Supreme
Court in Illinois v. Andreas, [463 U.S. 765,
103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983),]
where [the Court] cautioned that the plain
view doctrine authorizes seizure of illegal
or evidentiary items visible to a police
officer only if the officers [physical]
access to the object itself has a Fourth
Amendment justification.
Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment (3rd ed.
1996), 2.2(a), Vol. 1, pp. 399-400.
Thus, even though an officer may
lawfully look through the window of a
residence and observe contraband, the plain
view doctrine does not justify the officers
entry into the residence to seize the
contraband because the police may not enter
a residence without a warrant. The fact that
the contraband is in plain sight within the
premises has no bearing upon the question of
whether an intrusion into those premises may
now be made for the purpose of seizing that
contraband. Id. at 400. By the same token,
Professor LaFave explains, if the plain view
is of an object on the person of some
individual, ... the seizure of that object
from the person [must still] occur pursuant
to a warrant, [or] incident to arrest, or ...
under exigent circumstances. Id. at 401.
Professor LaFave points out that
this same principle applies to the type of
situation presented in Youngs case:
[E]ven when the plainly viewed object
could be seized without interfering with a
person or entering upon protected premises,
it cannot be said that the [officers] right
of seizure flows automatically from the plain
view. Except when the object has been
abandoned, the seizure itself constitutes an
interference with effects protected by the
Fourth Amendment, and this means that[,] in
the absence of a search warrant[,] some
recognized ground for warrantless seizure,
equally applicable outside plain view cases,
must be present.
Id. at 401.
Thus, it appears that Paiz may have
violated Youngs rights when he seized the
tissue paper bundles without first having
probable cause to believe that they
constituted evidence of a crime. Moreover,
even if we assume that Paiz had the authority
to reach under the door and retrieve the
tissue paper bundles, Paiz would not have
been authorized to open them (without first
obtaining a warrant) unless he knew that
these bundles were distinctive, single-
purpose containers used for carrying illicit
drugs.2
On appeal, the State does not argue
that Paiz had the authority to retrieve and
seize the tissue paper bundles from
underneath the door. Nor does the State
argue that, after Paiz retrieved the tissue
paper bundles from underneath the door, he
recognized them as distinctive, single-
purpose containers used for carrying illicit
drugs thus authorizing him to open the
bundles and inspect their contents. Rather,
the State attempts to circumvent these Fourth
Amendment problems by arguing that the tissue
paper bundles were abandoned property that
Young voluntarily relinquished all interest
in the tissue paper bundles when he shoved
them under the door.
For Fourth Amendment purposes, a
person who abandons property gives up any
expectation of privacy in that property.
State v. Salit, 613 P.2d 245, 255 (Alaska
1980). In Youngs appeal, the State relies on
the converse of this statement: the State
contends that a person who jeopardizes their
expectation of privacy in an article of
property thereby abandons it. Thus, the
State argues, when Young shoved the tissue
paper bundles under the door, relinquishing
direct physical control over these objects
and putting them in a place where (at least
potentially) others might observe and find
them, Young abandoned any privacy interest in
the tissue paper bundles.
But the States basic premise is not
true. While abandonment of property
extinguishes a persons expectation of privacy
in the property, there are many things that a
person might to do diminish or defeat their
expectation of privacy in an article of
property that do not amount to abandonment of
the property.
For instance, a person who loans
property to a friend can not complain (for
Fourth Amendment purposes) if the friend
allows the police to search the property.3
Similarly, if the property owner shares
living space with another person, and this
other person allows the police to enter and
search the shared residence, the property
owner can not complain if the police find the
property (or observe some incriminating
aspect of the property) during their search.4
By the same token, if a person places their
property on their lawn or on display in their
window, and some incriminating aspect of the
property is perceived by a passerby, the
property owner can not complain.5 Finally,
the cases that come to this Court often
present situations where people have
consented to have the police examine or
search through their property their billfold
or purse, the trunk of their vehicle, the
pockets of their clothes. In all of these
instances, the property owner has done
something to diminish or defeat their
expectation of privacy in the property, but
in no sense has the property owner abandoned
the property.
Abandonment occurs only when the
property owner has discarded the property
that is, done something to objectively
manifest the intent to give up any and all
expectation of privacy in the property, now
and in the future. And here, the courts
distinguish between the abandonment of
property and unsuccessful attempts to hide
property.
As noted by the Seventh Circuit in
United States v. Basinski, 226 F.3d 829, 837
(7th Cir. 2000), abandonment cases typically
can be divided into three different
categories. The first type of abandonment
occurs when an individual intentionally
discards an object in a public place often
jettisoning the article while fleeing from
the police. Id. Under these circumstances,
[when] the presence of police is lawful and
the discard occurs in a public place where
the defendant cannot reasonably have any
continued expectation of privacy in the
discarded property, the property will be
deemed abandoned for purposes of search and
seizure. City of St. Paul v. Vaughn, 237
N.W.2d 365, 371 (Minn. 1975).6
A second, related type of
abandonment occurs when an individual places
an object in a curbside trash container for
collection. California v. Greenwood, 486
U.S. 35, 37; 108 S.Ct. 1625, 1627; 100
L.Ed.2d 30 (1988); Smith v. State, 510 P.2d
793, 796 (Alaska 1973). By discarding the
object in this manner, the owner leads
reasonable people to believe that he no
longer cares what becomes of his trash, or
[of] articles mistaken for trash. Basinski,
226 F.3d at 837.
Finally, an abandonment may arise
out of a disclaimer of ownership which is
made in response to police questioning.
LaFave, 2.6(b), p. 581. See State v. Salit,
613 P.2d 245, 258 (Alaska 1980) (holding that
the defendant abandoned a garment bag when he
repeatedly denied that it belonged to him).
Under such circumstances, the individual who
denies ownership of the item can not
reasonably expect to retain any privacy
interest in the item. United States v.
Tolbert, 692 F.2d 1041 (6th Cir. 1982).
However, the disclaimer of ownership must
arise from lawful police questioning. Salit,
613 P.2d at 256.
On the other hand, abandonment does
not occur simply because a person temporarily
relinquishes possession or control of an
object. LaFave, 2.6(b), p. 577. Compare
United States v. Thomas, 864 F.2d 843, 846-47
(D.C. Cir. 1989) (The law obviously does not
insist that a person assertively clutch an
object in order to retain the protection of
the fourth amendment.).
For example, in United States v.
Jackson, 544 F.2d 407 (9th Cir. 1976), a drug
enforcement agent approached Jackson in an
airport and said, Id like to talk to you.
Jackson dropped his suitcase and took three
steps before he was arrested. Id. at 409.
On these facts, the Ninth Circuit refused to
find abandonment: We are not persuaded that
the simple acts alone of putting a suitcase
down and walking on a few steps before being
stopped indicate an intent to abandon the
suitcase. Id. at 410. Similarly, in United
States v. Boswell, 347 A.2d 270 (D.C. App.
1975), the court found no abandonment when
the defendant placed a blanket-covered object
down in a hallway while he made a telephone
call some 20 to 30 feet away. Id. at 273-74.
Once again, the court explained that the
defendants actions were insufficient to show
an intent to abandon the object. Id.
See also Smith v. Ohio, 494 U.S.
541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990)
(finding that the defendants act of throwing
a paper bag onto the hood of a car was
insufficient to constitute abandonment of the
property); People v. Campbell, 160 A.D.2d
363, 364 (N.Y. App. 1990) (finding
insufficient evidence of abandonment where
police officers testified that the defendant
placed a paper bag on a newsstand shelf, but
then disagreed as to whether she attempted to
walk away or, instead, responded to the
officers request to stop and walk toward
them).
In the present case, the superior
court found that Youngs act of slipping the
tissue paper bundles under the motel door
constituted abandonment. But even when
viewed in the light most favorable to the
superior courts ruling, Youngs conduct does
not appear sufficient to establish
abandonment.
Young did not throw the tissue
paper bundles away, nor did he even walk away
from these bundles after he hid them beneath
the door. Rather, Young simply crouched down
and hid the tissue paper bundles in a
location within his reach. As soon as Young
stood up again, Officer Paiz handcuffed him.
This series of events does not bespeak Youngs
clear intent to permanently relinquish
ownership or control of the tissue paper
bundles.
Moreover, even if Young had walked
away from the door, the fact remains that
Young did not discard the tissue paper
bundles in a public place where anyone might
discover and take possession of the property.
Rather, Young placed the tissue paper bundles
in a location that would conceal their
presence and was not readily accessible to
the public beneath the door of a locked
closet.
As our supreme court recognized in
Smith v. State, 510 P.2d 793, 796 n. 9
(Alaska 1973), actions taken to conceal
property do not constitute abandonment of the
property.7 Thus, in Erickson v. State, 507
P.2d 508 (Alaska 1973), the supreme court
held that even though the defendant had left
his suitcase hidden in a ditch, and even
though the police had abundant probable cause
to believe that the suitcase contained
marijuana, the police could not open the
suitcase without a warrant. Id. at 512.
A similar holding is found in
People v. Kelly, 172 A.D.2d 458 (N.Y. App.
1991). In Kelly, the defendant placed a
brown paper bag inside a lobby wall opening
a receptacle for a yet-to-be-installed buzzer
system, covered by a metal flap and then
walked back to sit on the building stoop.
The court held that the defendants conduct
did not constitute abandonment of the bag.
In Youngs case, his placement of
the tissue paper bundles beneath the door
indicates an intent to conceal them rather
than abandon them.
We do not believe that this result
is affected by the fact that when Officer
Paiz asked Young to tell him what he had
placed under the door, Young denied placing
anything under the door. This statement was
not an express denial of ownership.8
Moreover, Youngs denial flowed directly from
his unlawful seizure.
Here is where it makes a difference
whether Officer Paiz had reasonable suspicion
to justify his detention and handcuffing of
Young. As we noted earlier, a finding of
abandonment may arise when a defendant
disclaims ownership of the property in
response to police questioning. However, the
disclaimer of ownership must arise from
lawful police questioning. Salit v. State,
613 P.2d at 256.
Acts of abandonment prompted by
unlawful police conduct are generally
considered the tainted fruit of the
illegality. See United States v. Jackson,
544 F.2d 407, 410 (9th Cir. 1976) (holding
that if the defendants arrest was illegal,
then his subsequent oral denial of ownership
was tainted and could not be considered); Cox
v. State, 586 So.2d 1321, 1322 (Fla. App.
1991) (holding that when the defendants act
of abandoning or dropping a package of
marijuana was prompted by or was the result
of an illegal stop, the purported abandonment
could not be used to justify a warrantless
search); State v. Belton, 441 So.2d 1195,
1199 (La. 1983) (When police officers make an
investigatory stop without the legal right to
do so, property abandoned or otherwise
disposed of as a result thereof cannot be
legally seized.); Comer v. State, 754 S.W.2d
656, 659 (Tex. App. 1986) (abandonment must
occur independent of any police misconduct).
In Youngs case, the superior court
found that Officer Paizs temporary
investigative detention of Young was
justified because Paiz could reasonably
suspect that Young was currently engaged in
criminal activity after Young falsely claimed
that he had not placed anything underneath
the motel door. The problem with the
superior courts analysis is that Young did
not make this statement until after Paiz
detained and handcuffed him.
At the time that Paiz handcuffed
Young, all he knew was that Young was present
at a motel that had a reputation as a place
where illegal drug activity occurred (both
drug deals and drug usage), that Young was
apparently attempting to avoid contact with
the police, and that Young had apparently
slipped something under the door. The
superior court expressly concluded that these
facts, standing alone, did not support an
investigative stop.9
In its brief to this Court, the
State disagrees with the superior court,
arguing that Officer Paiz had reasonable
suspicion to justify an investigative stop,
even before Young denied having placed
anything under the door. The State notes
that in Garcia v. State, 752 P.2d 478, 480
(Alaska App. 1988), we held that drug
trafficking is the kind of imminent public
danger that can justify an investigative
stop. And the State relies primarily on our
decision in Dimascio v. Anchorage, 813 P.2d
696 (Alaska App. 1991), to justify the
investigative stop in Youngs case.
In Dimascio, we upheld an
investigative stop of a motorist who twice
stopped to speak with a pedestrian in the
middle of the street; each time, both the
pedestrian and the motorist fled when the
police approached. This activity occurred in
the early morning (4:30 a.m.) in an area of
Anchorage known for drug-trafficking.10 But
the facts of Dimascio were much more
favorable to the State than the facts of the
present case. As we explained in Dimascio,
[T]he facts of Dimascios case show more than
an attempt to avoid contact with the police.
Dimascio and the pedestrian parted hurriedly
when they first saw the officer, came back to
their place of rendezvous when they thought
the officer gone, and then ran away at the
sight of the returning police car. This
pattern of activity is more suspicious than
merely leaving an area at the approach of the
police. Given the other circumstances the
lateness of the hour and the areas reputation
for drug transactions the actions of
Dimascio and the pedestrian were sufficient
to establish a reasonable suspicion that the
two men were engaged in a criminal
transaction when they were observed by [the
officer]. Because both Dimascio and the
pedestrian were fleeing from the scene in
different directions, a prompt investigation
[was] required ... as a matter of practical
necessity. State v. G.B., 769 P.2d at 456
(quoting Coleman v. State, 553 P.2d at 46).
Dimascio, 813 P.2d at 699.
Certainly, Officer Paiz could take
account of Youngs apparent reluctance to have
contact with the police, as well as the
motels reputation as the scene of illegal
drug activity and the fact that Young had
apparently tried to hide something under the
door. But although Paiz could reasonably
conclude that Young was trying to hide
something from him, we do not believe that
Paiz yet had reasonable suspicion that Young
was guilty of drug trafficking.
In sum, we agree with the superior
court that, at the time Paiz handcuffed
Young, there was no reasonable suspicion to
justify an investigative detention. Hence,
even if Youngs denial that he had slipped
anything under the door could be viewed as
tantamount to a denial of ownership (which we
doubt), this statement was the fruit of an
illegal seizure of Youngs person.
Accordingly, the superior court
erred when it ruled that Young had abandoned
the tissue paper bundles when he slipped them
under the door.
As we noted above, the State does
not attempt to justify the warrantless
seizure and ensuing warrantless opening of
the tissue paper bundles on any ground other
than abandonment. And no other exception to
the warrant requirement appears to apply to
these facts.
To summarize: Young did not
abandon the tissue paper bundles; rather, he
attempted to conceal them. Even assuming
that Officer Paiz had the authority to seize
the tissue paper bundles from underneath the
door, he had no authority to open them
without a search warrant.11
Conclusion
The superior court should have granted Youngs
suppression motion. The judgement of the superior
court is REVERSED.
_______________________________
1 AS 11.71.040(a)(3)(A).
2 See Schraff v. State, 544 P.2d 834, 847 (Alaska 1975)
(upholding the seizure and ensuing warrantless search
of an aluminum foil slip from the defendants wallet,
provided the officer was entitled to search the wallet
in the first place); Newhall v. State, 843 P.2d 1254,
1259 (Alaska App. 1992).
3 Frazier v. Cupp, 394 U.S. 731, 740; 89 S.Ct. 1420, 1425;
22 L.Ed.2d 684 (1969).
4 United States v. Matlock, 415 U.S. 164, 171-72; 94 S.Ct.
988, 993; 39 L.Ed.2d 242 (1974).
5 See LaFave, supra, 2.2(a), Vol. 1, pp. 397-98.
6 See, e.g., United States v. Williams, 569 F.2d 823, 826
(5th Cir. 1978) (finding abandonment of a trailer when
the defendant pulled into a rest stop, unhitched the
trailer from his truck, and drove away (leaving the
trailer behind) when he realized that he was being
followed by narcotics agents); United States v.
McLaughlin, 525 F.2d 517, 519 (9th Cir. 1975) (finding
that the defendants abandoned four kilos of marijuana
when they threw it from their moving vehicle); United
States v. Eubanks, 876 F.2d 1514, 1515-16 (11th Cir.
1989) (finding that the defendant abandoned two twisted
pieces of paper containing crack cocaine when he
dropped them on the ground and walked away); United
States v. Thomas, 864 F.2d 843, 846-47 (D.C. Cir. 1989)
(finding abandonment of a gym bag when the defendant
put the bag down in the hallway and walked away).
7 See also Ingram v. State, 703 P.2d 415, 428 (Alaska App.
1985) (same).
8 Compare Youngs statement with the express and often
repeated denials of ownership contained in the
following cases: United States v. Kendall, 655 F.2d
199, 200 (9th Cir. 1981) (defendant disclaimed
ownership of luggage by pointing out that the claim
numbers on the luggage tag did not match the claim
numbers on his ticket); United States v. Jones, 707
F.2d 1169, 1170 (10th Cir. 1983) (when confronted with
the satchel that he had discarded, the defendant
expressly denied ownership twice); Salit v. State, 613
P.2d 245, 256 (Alaska 1980) (the defendant denied
ownership of a garment bag even after the other
passengers had left the terminal and there was no one
else to claim it).
9 The court declared: Officer Paiz could not have gone up
[to Young] and frisked him based on what hed seen,
couldnt have cuffed him, couldnt have questioned him if
Mr. Young had simply said, I dont want to talk to you..
10Id. at 697.
11Erickson, 507 P.2d at 512.
