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D'Antorio v. State (11/22/96), 926 P 2d 1158
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Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to
bring errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, telephone (907)
264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL D'ANTORIO, )
) Supreme Court No. S-6541
Petitioner, ) Court of Appeals No. A-4801
) Superior Court No.
) 3AN-S88-8247 Cr.
v. )
) O P I N I O N
STATE OF ALASKA, )
) [No. 4433 - November 22, 1996]
Respondent. )
______________________________)
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Christine S. Schleuss, Law
Office of Christine Schleuss, Anchorage, for
Petitioner. Cynthia L. Herren, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Respondent.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
FABE, Justice.
I. INTRODUCTION
A jury convicted Michael D'Antorio of engaging in a
scheme to defraud in violation of AS 11.46.600(a)(1). (EN1) The
superior court sentenced him to ten years of imprisonment with
one year suspended and placed him on probation for five years.
Prior to trial, D'Antorio moved to suppress personal
papers and credit cards seized during a search conducted in Ohio
by an Ohio police detective and later examined by a sergeant of
the Alaska State Troopers. (EN2) The superior court denied the
motion and permitted the State to use the evidence at D'Antorio's
trial. The issue before us is whether the court of appeals erred
in affirming the superior court's decision to admit these papers
and credit cards into evidence.
We hold that the search of D'Antorio's personal papers
conducted by the Alaska State Troopers cannot be sustained under
the "second glance"doctrine. However, we conclude that the
seizure of the credit cards occurred pursuant to a proper
inventory search and that their examination by the Alaska State
Troopers was valid under the "second glance"doctrine. We
therefore reverse in part and affirm in part.
II. FACTS AND PROCEEDINGS
On April 30, 1987, a police officer stopped Michael
D'Antorio near Huber Heights, Ohio for driving with a broken
headlight. The officer conducted a routine computer check which
revealed an outstanding Alaska arrest warrant for D'Antorio for a
"parole violation, original charge scheme to defraud." The
officer placed D'Antorio under arrest and conducted a brief
search of D'Antorio and the car. The car was then impounded and
moved to an impound yard.
Huber Heights Detective Susan Finch went to the impound
yard several hours later to "inventory"the contents of the car.
Finch found an automobile filled with bags of new merchandise,
including a camcorder, a convection oven, twenty boxes of shoes,
several cases of beer, and numerous closed containers, including
suitcases and a briefcase. Detective Finch opened and searched
each closed container in the vehicle and found various credit
cards and hundreds of pages of documents. These papers included
credit bureau reports, business cards, letters, airline tickets,
IRS forms and correspondence, college applications, handwritten
notes, newspaper wedding announcements and obituaries, sales
receipts, and completed credit applications.
Detective Finch conducted an inventory search of the
car. She testified that her purpose in inspecting the documents
was to identify D'Antorio's property for safekeeping. She listed
each of the credit cards separately. However, she filled out no
inventory forms for the other papers, nor did her handwritten
list of items describe any of the written documents found inside
the closed containers in the automobile. Instead, she placed
them in plastic bags and labeled them as "miscellaneous papers."
Several days after the inventory was completed, Alaska
State Trooper Sergeant Edward Stauber traveled to Ohio in order
"to see what they had seized, what was in evidence, and . . . to
transport Mr. D'Antorio back to Alaska." Sergeant Stauber was
aware of D'Antorio's prior conviction for a scheme to defraud and
of probation restrictions placed on D'Antorio which prohibited
him from possessing credit cards. (EN3) Stauber took possession
of the items and papers from an Ohio evidence custodian. The
papers were contained within closed plastic bags, identified by
general tags such as "miscellaneous papers from glovebox." Upon
returning to Alaska, Sergeant Stauber, without seeking a search
warrant for the papers, read each document, copied it, and
described it on a detailed list.
D'Antorio filed a motion to suppress these papers and
credit cards, asserting that the inventory conducted by Detective
Finch in Ohio and the warrantless examination by Sergeant Stauber
in Alaska violated the United States and Alaska constitutions.
The superior court denied the motion to suppress, and D'Antorio
was convicted of a scheme to defraud five or more people.
D'Antorio appealed. The court of appeals held that
federal and Ohio law applied to the inventory search conducted by
Detective Finch and affirmed the superior court's conclusion that
Finch's inventory was valid. D'Antorio v. State, 837 P.2d 727,
731 (Alaska App. 1992) (D'Antorio I). The court of appeals
remanded the case to the superior court and stated that
the pertinent issue is whether the intensity
of Stauber's warrantless search of the seized
articles materially exceeded the scope of the
inventory that Finch had previously conducted
-- in other words, whether Sergeant Stauber's
actions violated a reasonable expectation of
privacy that had not already been
"dissipated"by Finch's earlier inspection.
. . . .
From the testimony below, it appears that
Stauber's search of D'Antorio's property may
have been more intensive than Finch's prior
inventory search. However, this is a factual
issue, which requires findings by the trial
court in the first instance. We must
therefore remand this case for additional
findings.
Id. The court of appeals further ordered the superior court, if
it found upon remand that any of the inventory search evidence
should have been suppressed, to decide whether introduction of
that evidence was harmless error. Id. at 733-34.
On remand the superior court determined that Sergeant
Stauber's examination did not materially exceed the scope of
Detective Finch's inventory and that Stauber merely took a
"second glance"at the seized items. In reaching this conclusion
the superior court stated:
As a factual matter, it is undisputed that
Sergeant Stauber knew what to look for and
closely examined and catalogued every piece
of paper provided him by the Huber Heights
police. Detective Finch, on the other hand,
knew only generally that defendant was wanted
in connection with credit card fraud. She
was aware of the probable evidentiary
significance of the credit cards found in the
vehicle; she separately listed each one of
them. Sergeant Stauber's search of the
credit cards was not more extensive.
Admission of evidence regarding the cards was
not error.
Because Detective Finch was not apprised of
defendant's modus operandi, however, she was
not necessarily aware of the evidentiary
significance of each of the other papers she
perused. But she testified that she opened
every container found in the car and looked
at each piece of paper. She said that she
"glanced"through each one "enough to note
that it was an application or obituary or
whatever kind of article it was." She said
she could report the general gist of each
piece of paper, but not repeat its contents
"verbatim."
The superior court stated that "Stauber did not inspect
articles in closed containers that had not previously been
opened. Moreover, every paper he inspected was plainly exposed
to and observed by Finch." The court concluded that "it cannot
reasonably be said that one whose personal papers have been
examined item by item by police officers after arrest retains a
significant expectation of privacy in these papers." The
superior court also found that admission of the questioned
evidence may have "appreciably affected"the jury's verdict, and
thus any error was not harmless.
D'Antorio appealed, asserting that the superior court
erred in finding Sergeant Stauber's "second glance"valid and
that Detective Finch's inventory search exceeded the scope of a
proper inventory search.
The court of appeals concluded that Sergeant Stauber's
"second glance"was valid because D'Antorio's expectation of
privacy was at least partially dissipated when the papers were
viewed by Detective Finch. D'Antorio v. State, Memorandum
Opinion and Judgment No. 2961 at 8-10 (Alaska App., July 27,
1994) (D'Antorio II). The court of appeals also reaffirmed its
original holding that Detective Finch's inventory was conducted
within the bounds of the federal and Ohio constitutions. Id. at
11-14.
We granted D'Antorio's petition for discretionary
review of the court of appeals' decision.
III. DISCUSSION
In our order granting D'Antorio's petition for hearing,
we directed the parties to brief the following two issues in
addition to those issues the parties thought relevant.
1. Would it have been permissible for
Officer Finch to have read in detail the
papers in question as part of the inventory
search she conducted?
2. If the answer to the above is negative,
can Officer Stauber's search be sustained on
a "second glance"rationale?
These inquiries direct our analysis of this case. To
answer the first question requires us to evaluate the scope of a
proper inventory search under federal and Ohio law. (EN4)
However, since Officer Stauber conducted his search as an Alaska
State Trooper investigating charges arising in Alaska, we
evaluate the applicability of the "second glance"doctrine to his
search under Alaska law.
A. The Permissible Scope of an Inventory Search under
Federal and Ohio Law
"Inventory searches are now a well-defined exception to
the warrant requirement of the Fourth Amendment." Colorado v.
Bertine, 479 U.S. 367, 373 (1987) (citing Illinois v. Lafayette,
462 U.S. 640, 642 (1983) and South Dakota v. Opperman, 428 U.S.
364, 366-377 (1976)). Inventory procedures were developed in
response to three distinct needs: "the protection of the owner's
property while it remains in police custody, the protection of
the police against claims or disputes over lost or stolen
property, and the protection of the police from potential
danger." Opperman, 428 U.S. at 370 (citations omitted).
The Ohio Supreme Court has similarly held that "[s]o
long as the scope of the search is reasonable, taking into
consideration the three interests to be protected by the
inventory, . . . [it will] be held to be a constitutionally
permissible intrusion." State v. Robinson, 391 N.E.2d 317, 319
(Ohio), cert. denied, 444 U.S. 942 (1979) (quoting United States
v. Edwards, 577 F.2d 883, 893 (5th Cir.) (en banc), cert. denied,
439 U.S. 968 (1978)). The Ohio Supreme Court has noted that the
inventory search exception does not provide a "general license
for the police to examine all the contents"of an automobile
during an inventory search. Robinson, 391 N.E.2d at 318 (quoting
Opperman, 428 U.S. at 380 (Powell, J., concurring)). Rather, a
valid inventory search must be limited so as to fulfill only the
"administrative caretaking functions"that are its justification.
State v. Hathman, 604 N.E.2d 743, 745 (Ohio 1992). (EN5)
Having reviewed the rationale for allowing warrantless
inventory searches under federal and Ohio law, we now turn to the
dispute before us. We address the issue of the examination of
the papers and the examination of the credit cards separately.
1. A detailed examination of the papers by Detective
Finch would have exceeded the permissible scope of
an inventory search under federal and Ohio law.
In his concurring opinion in Opperman, Justice Powell,
who cast the deciding vote, considered the constitutional limits
of police inventory searches. (EN6) He stated that police
officers conducting an inventory do not have free reign and
should not be permitted to examine in great detail items that
might reveal very "intimate areas"of a person's life. Opperman,
428 U.S. at 380 n.7 (Powell, J., concurring). Justice Powell
listed letters and checkbooks as two examples of items that
"touch upon intimate areas of an individual's personal affairs."
Id. Justice Powell concluded, however, that the police in
Opperman merely searched for and removed for storage
"miscellaneous papers,"a checkbook, an installment loan book,
and a social security card without examining their contents and
so concurred with the majority opinion that the search in that
case was valid. (EN7) Id.
More recently, the United States Supreme Court has
reiterated this limitation on inventory searches stating:
[A]n inventory search must not be a ruse for
a general rummaging in order to discover
incriminating evidence. The policy or
practice governing inventory searches should
be designed to produce an inventory. The
individual police officer must not be allowed
so much latitude that inventory searches are
turned into "a purposeful and general means
of discovering evidence of crime."
Florida v. Wells, 495 U.S. 1, 4 (1990) (quoting Colorado v.
Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring));
see also Commonwealth v. Sullo, 532 N.E.2d 1219, 1221 (Mass. App.
1989) (police prohibited from hunting for information, sifting or
reading materials taken from arrestee); (EN8) Waine v. State, 377
A.2d 509, 517 (Md. App. 1977) (holding officers went beyond scope
of reasonable inventory search in reading papers among
defendant's personal effects).
In this case, the State does not dispute that Detective
Finch was not permitted to read in detail papers seized as part
of an inventory search, but responds that Detective Finch "did
not read each piece of paper in the detail Justice Powell in
Opperman warned against." The State maintains that Detective
Finch only viewed each paper sufficiently to ascertain its
identity.
D'Antorio argues that Detective Finch exceeded the
permissible scope of an inventory search by reading the documents
she seized during her inventory. In support of this assertion
D'Antorio points to Finch's testimony at trial:
Q: The documents that you testified
about in front of you listed in
this state's 44 through 55, you
said that they appeared to be
(indiscernible -away from
microphone) type of documents or
the documents which you
inventoried. Do you recall that
testimony?
A: Yes, I do.
Q: When you were looking through those
documents did -- did Michael
D'Antor -- the name Michael
D'Antorio appear in them?
A: Yes, it did.
Q: On what type of basis? Seldom,
frequently.
A: Frequently.
D'Antorio argues that Detective Finch's own words "make
crystal clear that she read each document in such detail that she
knew that Mr. D'Antorio's name frequently appeared in the
documents." D'Antorio further argues that for Finch to be able
to testify that the main thrust of the newspaper articles was
obituaries, she must have read them. Finally, D'Antorio refers
to Finch's testimony at trial that she reviewed each document in
enough detail to obtain the "general gist"of each item and
argues that "[t]he only way to know the 'gist' of what a written
paper contains is to read it."
The record developed in the trial court does not make
clear the precise scope of Finch's vehicle search, despite a
specific direction on remand from the court of appeals to
determine the "scope of Detective Finch's inventory and a
comparison of that search with the subsequent search by Stauber."
D'Antorio I, 837 P.2d at 733. In its findings on remand the
superior court noted that:
[Detective Finch] testified that she opened
every container found in the car and looked
at each piece of paper. She said that she
"glanced"through each one "enough to note
that it was an application or obituary or
whatever kind of article it was."
The trial court commented that "Detective Finch had only perused
the papers sufficiently to know the nature of each one, but not
necessarily its precise contents and evidentiary import."(EN9)
Yet, the superior court also found that Detective Finch "examined
item by item"D'Antorio's "personal papers,"and that Sergeant
Stauber's detailed examination "did not materially exceed the
scope"of Finch's inventory search. In D'Antorio II, the court
of appeals held that the superior court "could properly have
found that Detective Finch had looked at each document."
D'Antorio II, Memorandum Opinion and Judgment No. 2961 at 6.
However, as the first question in our order granting
D'Antorio's petition for hearing implies and as we explain
further in part III below, we do not need to decide the precise
extent of Detective Finch's inventory. Based on the cases cited
above, we conclude that it would not have been permissible for
Detective Finch to read the papers she found as part of her
inventory search of D'Antorio's automobile in detail, as the
State concedes Sergeant Stauber did. Such a reading goes beyond
what is required to protect the owner's property, to protect the
police against claims or disputes over lost or stolen property,
or to protect the police from danger. See Opperman, 428 U.S. at
378-80 (Powell, J., concurring). Instead, a detailed reading of
the papers constitutes a serious intrusion of D'Antorio's
reasonable expectation of privacy and could not be sustained
under the inventory exception. See id. at 379-80 (Powell, J.,
concurring).
2. Detective Finch's detailed examination of the
credit cards did not exceed the permissible scope
of an inventory search under federal and Ohio law.
D'Antorio also argues that Detective Finch exceeded the
permissible scope of an inventory search by reading the names on
the credit cards seized during her inventory. The State responds
that because credit cards have considerable value, police should
list the credit cards and the names on them in order to protect
themselves from claims that cards were lost, stolen or improperly
used while a vehicle was impounded. See State v. Callaway, 317
N.W.2d 428, 436 (Wisc.), cert. denied, 459 U.S. 967 (1982) ("Such
credit cards are becoming a necessary hazard of life in our
plastic society, although significant financial loss can result
from the theft and use of the cards by an unauthorized person.").
A review of the jurisdictions that have addressed the issue of
proper inventory procedure for credit cards demonstrates a
widespread recognition of the validity of the State's position.
In United States v. Pace, 898 F.2d 1218, 1243 (7th
Cir.), cert. denied, 497 U.S. 1030 (1990), the court upheld an
inventory search where police "leaf[ed] through the pages of . .
. record books . . . to determine whether any items, such as
credit cards, might be stuck between the pages." The court
concluded that the inventory was conducted pursuant to police
procedure and "is analogous to inventorying the closed container
in Bertine." Id.
Further, in U.S. v. Andrews, 22 F.3d 1328, 1335 (5th
Cir. 1994), the court upheld a similar search, stating:
Andrews contends, however, that a Fourth
Amendment violation occurred because the
"page-by-page search of [his] notebook was
not mandated or allowed by any policy of the
Moss Point Police Department." We disagree,
because it appears that MPPD's policy did
allow Adams to open Andrews' notebook, in
order to determine whether it contained
personal property which should have been
included on an MPPD inventory form. Opening
a notebook, to determine whether valuables
might be found between its pages, is
consistent with the MPPD policy requiring an
inventory search to protect the city from
claims of lost property. Cash, credit cards,
negotiable instruments, and any number of
other items could be hidden between the pages
of a notebook, and could give rise to a claim
against the city if lost.
(footnotes omitted); see also United States v. Khoury, 901 F.2d
948, 959-60 (11th Cir.) ("[The agent's] initial inspection of the
notebook was necessary and proper to ensure that there was
nothing of value hidden between the pages,"but further action in
reading what was written within notebook was beyond inventory
purpose and illegal), modified on other grounds, 910 F.2d 713
(11th Cir. 1990).
Detective Finch completed a detailed inventory of the
credit cards in accordance with her department's procedures.
When questioned about the inventory procedures for such items as
credit cards, Detective Finch testified that "[a]nything that's
negotiable like a credit card, a check, cash money, it's placed
into baggies -- Ziplock baggies and marked for evidence because
those kind of items go in the safe." Detective Finch further
testified that the credit cards inventoried were "listed like
Master Card and the person's name, the number on the card, and
then there were Xeroxed pictures taken of the credit card prior
to them being put into the safe."
We conclude that the scope of Detective Finch's
inventory of the credit cards was reasonable given the interests
of the state in protecting the owner's property while it remains
in police custody, as well as in protecting the police against
claims and disputes over lost or stolen property. Recording the
name and number appearing on a credit card seized during an
inventory effectively serves these interests. A less
comprehensive inventory procedure could potentially expose the
police to liability resulting from claims of lost credit cards.
Furthermore, this information declares itself on sight to an
officer conducting the inventory (EN10) and does not involve
"general rummaging in order to discover incriminating evidence."
Florida v. Wells, 495 U.S. 1, 4 (1990).
Detective Finch's inventory of petitioner's credit
cards did not exceed the permissible scope of an inventory search
under federal and Ohio law. We therefore affirm the court of
appeals' decision on this issue.
B. Under the "Second Glance"Doctrine, Sergeant Stauber's
Warrantless Search of the Credit Cards Was Valid but
His Search of the Papers Was Not.
The court of appeals concluded that once D'Antorio's
papers and credit cards had been inventoried, he did not retain a
significant expectation of privacy in them. D'Antorio II,
Memorandum Opinion and Judgment No. 2961 at 10. The court of
appeals, relying on our decision in Griffith v. State, 578 P.2d
578 (Alaska 1978), therefore held that Sergeant Stauber could
permissibly conduct a detailed reading of the papers and credit
cards under the "second glance"doctrine. Id.
In Griffith, we stated that the "second glance"
doctrine permits police in certain limited circumstances to
return to seize items from an incarcerated person's property.
578 P.2d at 580. Griffith was wearing a brown knit turban cap
when he was arrested, and it was placed, along with his other
personal belongings, in a canvas bag which was stored in a
property locker. Id. at 579. At the time the victim described
the defendant, he noted to the police officer that the defendant
was wearing a brown knit turban cap at the time of the robbery.
Id. When Griffith later challenged the victim's identification
of him during a suppression hearing, the arresting officer
realized that the cap might have evidentiary value. Id. At the
arresting officer's request, a booking officer searched
Griffith's belongings and located the cap which was held at the
jail for the officer. Id. at 579-580.
We upheld this second search of the defendant's
belongings, stating that "no invasion of privacy occurred"when
an officer went through inventoried items to verify the
availability of a cap which was in plain view at the time of the
defendant's arrest. Id. at 580. In so doing, we relied on the
following language from United States v. Grill, 484 F.2d 990 (5th
Cir. 1973), cert. denied, 416 U.S. 989 (1974):
The underpinning of these cases is that the
items in question have been exposed to police
view under unobjectionable circumstances, so
that no reasonable expectation of privacy is
breached by an officer's taking a second look
at matter with respect to which [the]
expectation of privacy already has been at
least partially dissipated.
Id. at 991, cited in Griffith v. State, 578 P.2d at 580 (footnote
omitted) (emphasis added).
Importantly, in Reeves v. State, 599 P.2d 727 (Alaska
1979), we also noted our agreement with the following statement
from Brett v. United States, 412 F.2d 401, 406 (5th Cir. 1969):
"We are not prepared to say that an accused whose effects are
held by the police for safekeeping has, by the single fact alone
of the police custody of the property, surrendered his
expectations of the privacy of those effects." Reeves, 599 P.2d
at 734 n.18. Based on the foregoing, we hold, as
did the court of appeals in D'Antorio I, 837 P.2d at 733, that
police are permitted a "second glance"equal in scope and
intensity to their first lawful view of the property. Thus, a
"second glance"may be sustained only if it is no more
penetrating than the initial search and the initial search is
constitutionally valid.
Therefore, we affirm the holding of the court of
appeals that Sergeant Stauber's search of the credit cards was
valid under the "second glance"doctrine. The credit cards were
properly inventoried by Detective Finch and Sergeant Stauber's
"second glance"was no more intensive than Detective Finch's
inventory.
Sergeant Stauber's search of the papers, however, was
not permissible under the "second glance"doctrine. While the
parties contest the extent to which Detective Finch examined the
papers in question, it is uncontested that, without a warrant,
Sergeant Stauber went through each paper, read it, copied it, and
described it on a detailed index. If Detective Finch merely
glanced at the documents for the purposes of identifying them,
then Sergeant Stauber's examination significantly exceeded the
initial search in scope and intensity and was not valid under the
"second glance"doctrine. D'Antorio still retained an
expectation of privacy in the contents of the documents in
question that was not dissipated by an inventory merely
indicating their existence. (EN11)
If, on the other hand, Sergeant Stauber's examination
merely repeated Detective Finch's, then her initial search, as
explained above, exceeded the limits of the inventory exception
to the warrant requirement. In that case, Sergeant Stauber's
search would also be invalid since there can be no permissible
"second glance"at items initially exposed to police as a result
of an unconstitutional search. As D'Antorio correctly argues, to
hold otherwise would effectively eliminate the prohibition on
close reading of papers during inventory searches. (EN12) We
therefore reverse the holding of the court of appeals that
Sergeant Stauber's warrantless examination of the papers was a
valid "second glance."
C. The Admission of the Documents Seized in Ohio Was Not
Harmless Error.
The State argues that even if there was error in the
admission of any or all of the evidence seized from D'Antorio in
Ohio, the error was harmless. The State lists numerous pieces of
evidence which allegedly link D'Antorio to the scheme to defraud,
asserting that the jury was provided with an overwhelming amount
of evidence from sources other than the inventory of the car in
Ohio. The State asserts that in the face of this "overwhelming
amount of evidence,"any error in admission of the Ohio evidence
is harmless beyond a reasonable doubt.
In D'Antorio I, the court of appeals instructed the
superior court to decide on remand whether introduction of this
evidence was harmless error. The superior court concluded that
this
issue is the easiest to resolve. The court
agrees with defendant that considerable
emphasis was placed on the materials found in
Huber Heights. The question is not whether
there may have been sufficient evidence to
support the jury's verdict without some or
all of the Ohio materials that were
introduced. The issue is whether there is a
possibility that this evidence may have
"appreciably affected"the jury's verdict.
Kristich v. State, 550 P.2d 796 (Alaska
1976). The court finds that such [a]
possibility exists. The state has not
established beyond a reasonable doubt that
any error was harmless.
D'Antorio points to the closing arguments where the
State argued:
It was an investigator's dream what happened
in Huber Heights, Ohio. It was not one piece
of evidence that ties him to Mockingbird Lane
and shows -- puts his signature on -- on this
case entirely, there's reams of it . . . .
[F]or the defense to argue that it wasn't him
doing it is completely obliterated by all
this evidence that was discovered on him in
Huber Heights, Ohio.
We hold that the record supports the superior court's
finding that the documents in question may have "appreciably
affected"the jury's verdict. We therefore affirm the superior
court's holding that any error in the admission of the documents
seized in Ohio was not harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18, 23-24 (1967) (adopting rule
that constitutional error in admitting evidence must be shown
harmless beyond reasonable doubt).
IV. CONCLUSION
For the foregoing reasons, we conclude that it was not
permissible under federal and Ohio law for Detective Finch to
read in detail the personal papers which she seized during her
search conducted in Huber Heights, Ohio. Sergeant Stauber's
warrantless examination of these papers therefore cannot
constitute a valid "second glance"since it either impermissibly
exceeded the scope of the initial inventory search or repeated an
unconstitutional search.
We further conclude, however, that Sergeant Stauber's
examination of the credit cards was valid under the "second
glance"doctrine. His search did not exceed in scope or
intensity the lawful listing and copying of the credit cards
Detective Finch conducted as part of her inventory search.
We hereby REVERSE D'Antorio's conviction and REMAND for
a new trial.
ENDNOTES:
1. AS 11.46.600(a) provides:
A person commits the crime of scheme to
defraud if the person engages in conduct
constituting a scheme
(1) to defraud five or more persons or
to obtain property or services from five or
more persons by false or fraudulent pretense,
representation, or promise and obtains
property or services in accordance with the
scheme . . . .
2. D'Antorio also moved to suppress evidence obtained from
credit card companies and private mail services. Those portions
of the motion to suppress are not before this court.
3. Stauber observed D'Antorio at the Anchorage International
airport on December 9, 1986, and was informed by an employee of
the Alaska Airlines Board Room that D'Antorio had used a credit
card to pay for membership. Stauber began to investigate
D'Antorio's use of the credit card, and based on the information
Stauber discovered, an arrest warrant was issued for D'Antorio
for a probation violation.
4. Where there is no "ongoing or concerted effort"between
Alaska and the foreign jurisdiction, the law of the jurisdiction
where the search occurred is controlling. Pooley v. State, 705
P.2d 1293, 1302-03 (Alaska App. 1985). We look to the law of
Ohio as well as federal law to determine the constitutionality of
Detective Finch's initial inventory search.
5. D'Antorio does not argue in this appeal that Ohio or federal
law prohibited Detective Finch from opening the closed containers
she found in his car during her inventory search. We therefore
decline to consider that issue. We note, however, that under
both federal and Ohio law, police may not open closed containers
during an inventory search unless they do so under a standardized
policy specifically dealing with such containers. Florida v.
Wells, 495 U.S. 1, 4-5 (1990) (holding that the search of
defendant's suitcase, absent a policy with respect to the opening
of closed containers, "was not sufficiently regulated to satisfy
the Fourth Amendment"); State v. Hathman, 604 N.E.2d 743, 746
(Ohio 1992) (holding that a closed container "may only be opened
as part of the inventory process if there is in existence a
standardized policy or practice specifically governing the
opening of such containers"). It does not appear from the record
that the Huber Heights Police Department had such a standardized
policy in 1987.
We also note that under article I, section 14 of the Alaska
Constitution "a warrantless inventory search of closed, locked or
sealed luggage, containers or packages contained within a vehicle
is unreasonable and thus an unconstitutional search." State v.
Daniel, 589 P.2d 408, 417-18 (Alaska 1979).
6. Prior to Opperman the American Law Institute's Model Code of
Pre-Arraignment Procedure sec. SS 230.6 titled Custodial Search
and Seizure provided:
(2) General Authority. Things not subject to
seizure under Section SS 210.3, which are
found in the course of a search conducted
pursuant to Section SS 230.3, may be taken
from the arrested individual's possession if
reasonably necessary for custodial purposes.
Documents or other records may be read or
otherwise examined only to the extent
necessary for such purposes, including
identity checking and ensuring the arrestee's
physical well-being.
Model Code of Pre-Arraignment Procedure sec. SS 230.6 (A.L.I.
1975).
The commentary on this section provides:
The legitimate aims of a custodial search
have been described as including the
safeguarding of the prisoner's property,
protection of the police against charges of
theft, and keeping out of the jail any things
dangerous to prison administration.
Generally speaking, none of these purposes
will justify reading the accused's papers,
except for the limited purposes specified in
Subsection (2).
Model Code of Pre-Arraignment Procedure sec. SS 230.6 commentary
at 530.
7. In his commentary on the Opperman decision Professor LaFave
concluded:
In Opperman, the police, when they looked in
the glove compartment, also found
"miscellaneous papers"(a checkbook, an
installment loan book, and a social security
status card), which, so far as the record
indicates, they removed without examination.
Opperman thus should not be read as
authorizing examination of such documents.
Rather, the case quite conclusively indicates
that a majority of the Court would not
approve of such a practice as part of the
routine vehicle inventory process.
3 Wayne R. LaFave, Search and Seizure sec. 7.4(a), at 560 (3d ed.
1996).
8. The court also quoted Professor LaFave's commentary:
It is to be doubted, however, whether
inventory justifies scrutiny of particular
items beyond that necessary to identify them
in an inventory list, and thus a close or
complete reading of documents or letters
beyond that necessary to determine their
general character would be improper.
Sullo, 532 N.E.2d at 1222 n.5 (quoting 2 Wayne R. LaFave, Search
& Seizure sec. 5.3(a), at 482 n.30 (2d ed. 1987)).
9. The trial court refused, however, to reexamine the
constitutionality of Detective Finch's inventory.
10. See Commonwealth v. Sullo, 532 N.E.2d 1219, 1221-22 (Mass.
App. 1989) ("[P]olice are not required to blind themselves to
information appearing on a paper or card that declares its nature
to anyone at sight, such as a driver's license or credit card.").
11. See State v. Davis, 742 P.2d 1356 (Ariz. App. 1987). In
Davis the Arizona Court of Appeals suppressed a diary lawfully
seized during an inventory search, but later read without a
warrant. The court concluded:
The actions of the detective in removing the
diary from the police property room and in
reading and copying its contents several days
after appellant was arrested and her
possessions inventoried can hardly be said to
be an "incidental administrative step."
Inventory searches may not be conducted for
the purpose of discovering evidence of a
crime. It is apparent that the diary reading
was aimed at obtaining evidence rather than
inventorying appellant's property. The
search, therefore, was not justified under
that exception to the search warrant
requirement.
Id. at 1361 (citation omitted); Khoury, 901 F.2d at 958
(subsequent warrantless inspection of a diary following valid
inventory constitutes violation of Fourth Amendment).
12. The State argues that Sergeant Stauber's search was a valid
"second glance"because, unlike Detective Finch, he recognized
the evidentiary value of the papers without having to read them
in detail. This argument misses the issue on appeal. Sergeant
Stauber did in fact read the papers in detail. His suspicions
concerning the possible evidentiary value of the papers do not
justify a warrantless search.
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