Morris v. State

908 P.2d 931, 1995 Wyo. LEXIS 225, 1995 WL 736312

• Court: Wyoming Supreme Court
• Decided: December 14, 1995
• Docket: 94-187
• Status: Published

Opinions

LEHMAN, Justice.

Pursuant to a plea agreement, Appellant Alexander L. Morris (Morris) pled guilty to charges of conspiracy to deliver controlled substances and possession with intent to deliver a controlled substance, while reserving the right on appeal to seek review of the district court’s ruling on his motion to suppress. The issue we decide is whether the district court erred in determining that the search of Morris’ wallet by a deputy sheriff (Deputy) was a reasonable search and thus tihe fruits derived from the search were admissible evidence.

We reverse.

ISSUES

Morris phrases the issue as:

Whether the trial court erred by denying Appellant’s motion to suppress all physical and testimonial evidence directly and indirectly derived from the illegal search of Appellant’s wallet.

The State of Wyoming rephrases the issue as:

Whether the trial court properly denied Appellant’s motion to suppress evidence obtained as a result of searching his wallet.

FACTS

On August 15, 1993, a deputy sheriff responded to a report that Morris was sleeping in the backyard of a private residence in Dayton, Wyoming. The Deputy awoke Morris, asked if he was okay, and requested identification. Morris could not find his driver’s license but produced a MSHA mine safety card and a social security card, neither of which bore a photograph or home address.

Morris was not arrested but, because he was unsteady and disoriented, the Deputy suggested that they return to the sheriffs office so that Morris could contact someone to come and get him. Morris agreed to this suggestion. Upon arrival at the office, Morris gave the Deputy the telephone number and name of a person to contact; however, the call was received by an answering machine. The Deputy then inquired whether Morris might have any phone numbers of friends in his wallet. It was at this time that Morris discovered he had lost his wallet. The Deputy recalled seeing Morris with his wallet in the patrol vehicle and offered to search the vehicle for it. Morris did not reply to the Deputy’s offer.

After locating the wallet on the floorboard of his patrol vehicle, the Deputy proceeded to search the wallet. Found therein was a tightly folded piece of paper containing a white powdery substance. The Deputy confronted Morris with the powdery substance and inquired whether Morris had anything else on his person that he should know about. Morris produced from his pocket a bag of marijuana and a pipe. Morris was then arrested for possession of a controlled substance; and, during the booking process, 15 bindles of the white powdery substance were found on his person. The substance was later identified as methamphetamine.

The district court denied Morris’ motion to suppress all evidence derived from the Deputy’s warrantless search of his wallet. Timely pursuit of this appeal followed Morris’ conditional plea of guilty.

MOTION TO SUPPRESS A. Standard of Review

Generally, evidentiary rulings of a district court are not disturbed on appeal unless a clear abuse of discretion is demonstrated. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994); Armstrong v. State, 826 P.2d 1106, 1111 (Wyo.1992); Garcia v. State, 777 P.2d 603, 607 (Wyo.1989). “ ‘An abuse of discretion has been said to mean an error of law committed by the court under the circumstances.’ ” Wilson, 874 P.2d at 218 (quoting Martinez v. State, 611 P.2d 831, 838 (Wyo.1980)). It is well established that when reviewing a district court’s ruling on a motion to suppress,

[findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Hyde v. State, 769 P.2d 376, 378 (Wyo.1989); Roose v. State, 759 P.2d 478, 487 (Wyo.1988). * * * Since the district court conducts the hearing on the motion to suppress and has the opportunity to: assess the credibility of the witnesses; the weight given the evidence; and make the necessary inferences, deductions and conclusions, evidence is viewed in the light most favorable to the district court’s determination. United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990).

Wilson, 874 P.2d at 218. See also Murray v. State, 855 P.2d 350, 354 (Wyo.1993); United States v. Soto, 988 F.2d 1548, 1551 (10th Cir.1993) (citing United States v. Horn, 970 F.2d 728, 730 (10th Cir.1992) and United States v. Evans, 937 F.2d 1534, 1536 (10th Cir.1991)). The issue of law before us, whether an unreasonable search or seizure occurred in violation of constitutional rights, is reviewed de novo. Guerra v. State, 897 P.2d 447, 452 (Wyo.1995); Wilson, 874 P.2d at 218. And see Lopez v. State, 643 P.2d 682, 683-85 (Wyo.1982); Cook v. State, 631 P.2d 5, 7-8 (Wyo.1981); and United States v. Walker, 941 F.2d 1086, 1090 (10th Cir.1991).

B. Discussion

Appellant contends that his constitutional rights were violated by the Deputy’s initial search of his wallet; by the seizure of a folded piece of paper contained within his wallet; by the subsequent search of that folded paper; and by the seizure of the contents contained within the folded paper. Appellant claims that this alleged illegal and unreasonable search and seizure requires the suppression of all evidence, direct and indirect, derived therefrom and requires the voiding of his initial arrest.

Article 1, § 4 of the Wyoming Constitution provides:

The 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 warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.

See Goettl v. State, 842 P.2d 549, 558-75 (Wyo.1992), Urbigkit, J., dissenting (arguing search and seizure provisions of the state constitution provide stronger protection than the federal constitution). The Fourth Amendment to the United States Constitution grants

[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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The protection of the Fourth Amendment is applied to state action under the due process clause of the Fourteenth Amendment to the United States Constitution. Wilson, 874 P.2d at 219 (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949)).

The State argues that because the encounter between the Deputy and Morris was a consensual, non-coercive, non-custodial contact for the purposes of ensuring Morris’ welfare, Fourth Amendment rights were not implicated. We agree that the encounter between the Deputy and Morris was a consensual encounter, and we also agree that the Deputy was performing his community caretaker function, as discussed in Wilson, when he offered to help Morris contact someone to come and get him and when he transported Morris to the sheriffs office. However, we disagree that Fourth Amendment rights were not implicated. Searches and seizures made without a warrant or outside the judicial process are per se unreasonable under both the Fourth Amendment to the United States Constitution and Art. 1, § 4 of the Wyoming Constitution, subject only to a few clearly articulated exceptions. Mickelson v. State, 906 P.2d 1020, 1022 (Wyo.1995); Guerra, 897 P.2d at 452; Roose v. State, 759 P.2d 478, 481 (Wyo.1988).

In State v. Paasch, 117 Or.App. 302, 843 P.2d 1011 (1992), a citizen found a wallet and delivered it to the police. A policeman searched the wallet, finding drugs. On appeal, the defendant argued that the search was illegal and the evidence should have been suppressed. The Oregon Court of Appeals agreed, stating:

Article I, section 9, of the Oregon Constitution protects “the right of people to be secure in their persons, houses, papers and effects against unreasonable search, or seizure.” A government action that invades a protected property or privacy interest is a search. State v. Faulkner, 102 Or.App. 417, 420, 794 P.2d 821, rev. den. 310 Or. 422, 799 P.2d 151 (1990). People have a privacy interest in wallets and other personal effects that does not disappear because the personal effect has been lost or mislaid. See State v. Pidcock, 306 Or. 335, 759 P.2d 1092, cert. den. 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1988); State v. Morton, 110 Or.App. 219, 822 P.2d 148 (1991). The deputy’s intrusion into the compartments of the wallet was a search.

Id., 843 P.2d at 1012 (emphasis added). The court went on to hold the search unreasonable and unlawful. Similarly, in State v. Morton, 110 Or.App. 219, 822 P.2d 148 (1991), the court held that although the police could search a lost or mislaid purse for identification purposes only, the search had to end once identification was found. The police found seven pieces of identification and still continued to search the purse, whereupon drugs were found. The court ruled that the continuation of the search after identification had been found was unreasonable and unlawful. Id., 822 P.2d at 150. The court went on to hold that the police lacked probable cause to conduct an investigative search of the cigarette case for contraband, which was contained within the purse, and stated that in a non-emergency, non-investigative situation, it is unreasonable for an officer to open any closed container. Id. Additionally, in State v. May, 608 A.2d 772 (Me.1992), a defendant’s wallet was found in the back of a police car and was taken into the station after the defendant had been released from custody. The wallet was searched, and cocaine was found. On appeal, the court found that the sealed wallet was a “ ‘repository for personal, private effects’ ” and thus was inevitably associated with an expectation of privacy. Id., at 774 (citing Arkansas v. Sanders, 442 U.S. 753, 762 n. 9, 99 S.Ct. 2586, 2592 n. 9, 61 L.Ed.2d 235 (1979)). The court held that the defendant had not abandoned his wallet and, therefore, the officer’s warrant-less search of the wallet had to comply with or find exception to the warrant requirement of the Fourth Amendment. Id. The court concluded the search was unlawful. Id., at 776.

Morris likewise had an expectation of privacy regarding his wallet. The record discloses that Morris did not abandon his expectation of privacy; rather the wallet was mislaid or lost. Once the Deputy searched the wallet without a warrant, Fourth Amendment rights were implicated. Thus, to find the search justified, the State must establish the existence of an exception to the' warrant requirement. Mickelson, 906 P.2d at 1022.

In Dickeson v. State, 843 P.2d 606, 610 (Wyo.1992), we stated that the recognized exceptions to warrantless searches and seizures that may be invoked include:

1) search of an arrested suspect and the area within his control; 2) a search conducted while in hot pursuit of a fleeing suspect; 3) a search and/or seizure to prevent the imminent destruction of evidence; 4) a search and/or seizure of an automobile upon probable cause; 5) a search which results when an object is inadvertently in the plain view of police officers while they are where they have a right to be; 6) a search and/or seizure conducted pursuant to consent; and 7) a search which results from an entry into a dwelling in order to prevent loss of life or property.

(Quoting Ortega v. State, 669 P.2d 935, 940-41 (Wyo.1983).) The record discloses that none of these exceptions apply to this case. Morris was never under arrest. The Deputy testified at the suppression hearing that he had no intention of making an arrest but was only trying to help Morris. Accordingly, no probable cause or reasonable suspicion existed to search Morris’ wallet. Furthermore, the plain view exception does not apply because, to invoke this exception, the items being searched or seized must appear to the officer to be possible evidence. Starr v. State, 888 P.2d 1262, 1265 (Wyo.1995); Jones v. State, 902 P.2d 686, 692 (Wyo.1995). Here the Deputy testified that his sole justification for searching the wallet was to see if anything was missing and to see if he could find any information to aid Morris. The folded piece of paper containing the illegal drug was contained within the wallet and thus was not in plain view to the Deputy. Additionally, the record establishes that Morris did not consent to the Deputy searching his wallet; the only consent that can be said to have been given by Morris was the consent, via acquiescence, to the Deputy retrieving the wallet. This consent was limited in purpose and scope. Amin v. State, 695 P.2d 1021, 1025 (Wyo.1985).

Having found none of these exceptions applicable, we address the State’s argument that the search of the wallet was justified by the Deputy’s community caretaker function, ie., to ensure Morris’ safety and welfare due to his disoriented condition and incapacity to provide meaningful assistance in finding someone to come to his aid. In Wilson v. State, 874 P.2d at 221, we discussed an officer’s community caretaker function, stating that this function, as outlined in Cady v. Dombrowski 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), permits police to act in a manner that enhances public safety. To justify this community caretaker function and establish the reasonableness of any search and seizure that results, specific and articulable facts must be present. Wilson, 874 P.2d at 221. Therefore, the totality of the circumstances must be examined at the inception of the officer’s action to determine whether the search and/or seizure was reasonably related in scope to the circumstances.

In Dombrowski the Court approved the search of a car trunk after the drunken driver had been involved in an accident which left him comatose. The Court reasoned that the local police were justified in searching the trunk pursuant to their community care-taking function because the driver was an off-duty police officer from another jurisdiction and local police reasonably believed the officer’s service revolver would be a hazard if left in the trunk of the abandoned car. 413 U.S. at 446-47, 93 S.Ct. at 2530-31. Under the circumstances, with the driver comatose and the possibility of his revolver being in the trunk, the search of the trunk was reasonable to ensure public safety.

In Wilson, we held that the police officer’s initial encounter with Wilson was reasonable and justified. We stated that the police officer’s observation of specific and articulable facts, Wilson’s lunging walk with a severe limp, reasonably justified a brief inquiry into his condition and the possible cause, such as whether Wilson was a victim of criminal conduct. 874 P.2d at 221. However, we also held that the police officer’s community caretaker function did not justify the officer seizing Wilson for the purpose of completing a NCIC and local warrants check. Id., at 224-25. We found that the officer admitted in his testimony that at no time did he possess any articulable facts sufficient to create a reasonable suspicion of past or present criminal conduct, and therefore the seizure was impermissible as a matter of law and Wilson’s Fourth and Fourteenth Amendment rights were violated. Id.

The analysis of the community caretaker function is fact based, with the emphasis on what is reasonable under the circumstances. In this case the record discloses that Morris was alert and conscious enough to ask questions, answer questions, and keep his faculties about him. In fact, Morris was functioning well enough to give the Deputy a phone number to call and the name of the person he was calling. The Deputy testified that he reached an answering machine with the same name as that given by Morris. The Deputy also testified that Morris was sitting in a chair in the interview room smoking a cigarette when the Deputy left him. Thus, the record is devoid of evidence that Morris was incapacitated or unconscious when the Deputy left to retrieve Morris’ wallet.

The Deputy testified that when he found Morris’ wallet on the floorboard of his patrol vehicle, he opened the wallet to see if Morris’ fifty dollar bill had fallen out. It was neither reasonable nor necessary for the Deputy to search the wallet pursuant to his community caretaker function to ensure Morris’ money was in the wallet. The Deputy further testified that after verifying that Morris’ money was in the wallet, he decided to search the rest of the wallet to see if Morris had mistakenly passed over his driver’s license and to see if he could find any other information that would aid Morris. Unlike Dombrowski the record fails to show that an emergency situation existed or to establish any specific and articulable facts to justify the search pursuant to an officer’s community caretaker function.

We hold that, under the totality of the circumstances, it was unreasonable and unnecessary for the Deputy to have searched Morris’ wallet without first obtaining a warrant. Accordingly, Morris’ Fourth and Fourteenth Amendment rights were violated.

Having found that the warrantless search of Morris’ wallet was unreasonable and illegal, we need not address whether the search of the folded piece of paper contained within the wallet was an unreasonable and illegal search.

C. Fruit of the poisonous tree and the exclusionary rule

The methamphetamine discovered by the Deputy during his illegal search of Morris’ wallet provided reasonable suspicion and probable cause to confront Morris and inquire whether Morris had anything else illegal on his person. This confrontation, under color of authority, prompted Morris to produce a pipe and bag of marijuana. Subsequently, Morris was arrested and, during booking, additional packets of methamphetamine were discovered. Based upon this discovered evidence, a search warrant to search Morris’ residence was executed. Morris sought to have all of this evidence suppressed.

In Roose v. State, 759 P.2d at 481, we stated that

if the initial search is held improper, not only the evidence obtained by such search but everything which becomes accessible to the prosecution by reason of the initial search would be inadmissible as “a fruit of the poisonous tree.”

(Quoting Goddard v. State, 481 P.2d 343, 345 (Wyo.1971).) In this case, all of the evidence obtained became accessible to the prosecution only as a result of the illegal initial search and, therefore that evidence constitutes fruit of the poisonous tree. Id.; Brown v. State, 738 P.2d 1092, 1097 (Wyo.1987). The illegal search of Morris’ wallet, “ ‘bar[s] from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion.’ ” Wilson, 874 P.2d at 225 (quoting Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)).

We conclude that the exclusionary rule must be applied in this case. See Brown, 738 P.2d at 1097; Wilson, 874 P.2d at 225. The conduct of the Deputy in this case amounted to an attempt to circumvent Art. I, § 4 of the Wyoming Constitution, and we find the exclusionary rule to be particularly appropriate here.

CONCLUSION

The search of Morris’ wallet was an unreasonable and illegal search, in violation of Morris’ Fourth and Fourteenth Amendment rights. Accordingly, the district court was clearly erroneous in denying Morris’ motion to suppress.

Reversed and remanded.