State v. Purvis

438 P.2d 1002, 249 Or. 404, 1968 Ore. LEXIS 654

Opinions

O’CONNELL, J.

This is an appeal from a judgment of conviction for the crime of illegal possession of narcotics.

Defendant rented a room at the Eugene Hotel. The Eugene Poliee Department was informed by employees of the hotel that they suspected defendant of using narcotics. Detective Matoon of the Eugene Police Department went to the hotel and made inquiry of the manager of the hotel and other employees concerning defendant’s activities. Matoon, learning that defendant was occupying room 705 went up to the seventh floor of the hotel where he enlisted the help of two maids who were in the process of cleaning and making ready the rooms on that floor. He asked them to keep the trash from room 705 separate from the trash collected from the other rooms. He explained to them that he thought that defendant was using narcotics and that he wanted to examine the trash taken from the room for narcotics. More specifically, he instructed them to look for “homemade cigarettes.” During this time the hotel manager came up to the seventh floor and instructed the maids to commence cleaning room 705. The maids went into the room at approximately 2:30 p.m. and began cleaning the room. They deposited all items which they regarded as waste or trash and brought them out in a flat cardboard box to Matoon. If they had followed their usual procedure, they would have dumped the trash into a bag on their cleaning cart.

Matoon examined the contents of the receptacle brought to him while the maids returned to room 705 and resumed their cleaning. They then found on the floor between the bed and a chair a cigarette butt wrapped in a cardboard cover of a matchbook. They decided that this was what the officer was looking for so they brought it out to him. Matoon tentatively identified the butt as containing marijuana.

Thereafter Matoon sought out defendant and arrested him for illegal possession of narcotics. Following the arrest, the officer searched defendant and seized another cigarette butt similar in appearance to that which was found in the hotel room, a wax paper bag containing marijuana, and a book of brown cigarette papers.

It is the state’s position that the police did not engage in an unlawful search and seizure because the hotel maids did not remove from the room any item which they would not have removed in the customary course of their work and that the only deviation in their usual cleaning procedure was to allow the police officer to examine the trash removed from the room.

Defendant first contends that the maids had no right to clean the room when they did because he had instructed them not to clean it until after he cheeked out. The maids’ testimony left in doubt the precise instructions defendant gave them with respect to cleaning the room. We are of the opinion, however, that the evidence was sufficient to establish that when the maids entered room 705 at 2:30 p.m. they were privileged to enter.

The state takes the position that the maids did not engage in a search of the premises on behalf of the police, but simply performed their regular duties in cleaning the room. The only deviation from their normal method of cleaning the room, it is argued, was in allowing the police officer to examine the trash before it was dumped into the bag on the cleaning cart.

Officer Matoon testified as follows:

“* * * j }iac[ asked the maid cleaning the 7th Floor that when she cleaned Koom 705, that I would like to see the contents that she would normally remove " * *. I didn’t ask them to look for anything in the room. * * * I asked them if they would keep the trash from the room separate from the other trash that they had in their cart, so that I could examine it * * *. That, as they thought Mr. Purvis was using narcotics, that I wanted to examine the contents of the room for any narcotics.”

Ethel Simmons, one of the maids, testified as follows:

“Q. Can you tell us what the conversation [with Officer Matoon] concerned, to the best of your recollection ?

“A. Something that we were supposed to be looking for when we cleaned the'room.

“Q. What did he tell you to look for?

“A A homemade cigarette.

“Q. Then he told you, specifically to look for a homemade cigarette?

“A. Yes.

U# * * # *

«Q. * * * [T]ell us what you did while you were in the room.

“A. Well, we were supposed to — We gathered all the trash and took it so that the officer could look it over.

a* * * * *

“Q. Now, when you were in the room, were you looking for cigarette butts for the officer?

“A. Yes.

* & &

“Q. As I understand your testimony, he told you to look for homemade cigarettes when you cleaned the room?

“A. Uh-huh.

* * * *

“Q. And what did he tell you to do if you found any homemade cigarettes ?

“A He wanted to look at it.

“Q. In other words, he told you to look for homemade cigarettes, and if you found any, he wanted to look at them?

“A Yes, we were to bring them to him.

H# * # # *

“Q. You had been specifically directed by the police, or requested to look for cigarette butts and give them to them.

“A. Yes.”

We interpret this testimony to mean that officer Matoon requested the maids to bring to him only those items, including homemade cigarettes or cigarette butts, which would normally be removed in the usual course of cleaning a hotel room.

If the officer had requested the maids to search for a cigarette without regard to whether it would be removed in the usual course of cleaning the room, a different problem would be presented. In such a case the direction to search would be broad enough to embrace items which would not be subject to a warrant- less search and seizure by the police under the circumstances and a seizure of the property of defendant would therefore violate the Fourth Amendment and its counterpart in our own constitution.

Footnotes

•

① It is arguable that under such circumstances the product of the search would not be admissible in evidence even if it consisted of an item which would have been removed by the maids in the usual course of cleaning the room without any direction from the police.② However, we are not required to decide that question in this case because, as we interpret the evidence, the trial court was entitled to regard the direction given to the maids as limited to the removal of items which would otherwise be removed in the normal process of cleaning the room.

Under these circumstances a different problem is presented. The items collected by the maids were destined to be thrown away. The evidence in this case would support a finding that the maids were authorized by defendant to clean the room when they did and to remove the trash, including the cigarette butt found on the floor of the room. Defendant’s claim to privacy terminated with respect to items discarded by him and which he impliedly authorized to be hauled away. Certainly, once the discarded items were outside of the room they were in the public domain and open to inspection by anyone.③ And so, in the present ease if the police had given no instructions to the maids aud simply waited until the trash from room 705 was brought out into the hallway and then intercepted it, defendant would have had no legitimate claim to privacy in the items examined.④ The same result would obtain if the assistance of the maids was enlisted only to the extent of requiring them to deliver the trash to the police so that it could be examined by them.

In the present case the maids were recruited by the police to carry on a form of search within the room, but only for items which had been discarded by defendant and which eventually would be available to the police for inspection even if no instructions had been given. Although the cooperation of the maids in keeping the objects from room 705 separate from the objects taken from the other rooms was helpful to the police and, in fact, could be regarded as a part of the process of search, we do not think that the recruitment of the maids by the police for this purpose constituted an invasion of defendant’s constitutional right of privacy.

The objects which defendant deposited in the ash trays and waste baskets can be regarded as abandoned property. During the time the discarded property remained in the room the police were not entitled to seize it, not because defendant claimed a right of privacy in these items, but because the right to the privacy of the room itself would be invaded by such a seizure. However, the removal of the contents of the ash trays and waste baskets into the hallway by the maids, who were privileged to be in the room and were authorized to remove trash in cleaning it, did not constitute an unlawful invasion of defendant’s privacy. The cigarette butt found on the floor is not essentially different from the trash found in the ash trays and waste baskets. Although it may not have been actually abandoned, it was indistinguishable from the other items normally discarded by hotel guests and defendant, having at least impliedly authorized the removal of trash from the room, is not entitled to have the removal of the cigarette butt regarded any differently than the other trash in the room.

The judgment is affirmed.

The maids’ privilege to enter the room would not extend to the police. The applicable principle may be illustrated by Corngold v. United States, 367 F2d .1 (9th Cir 1966). In that case an airline employee had the right of inspection, as reserved by contract, to inspect airline baggage. At the request of custom authorities the employee opened a large package of defendant’s and the agents proceeded to make a more thorough examination of the contents. The court, after concluding that the employee opened the carton solely to serve the purposes of the government, observed:

“But the evidence would be excludable in the present case even if the TWA employee had not acted solely to satisfy the government’s interest in viewing the contents of the package, but instead had initiated and participated in the search for reasons contemplated by the inspection clause in TWA’s tariff. The customs agents joined actively in the search.” 367 F2d at 5.

•

This conclusion can be supported on the theory that a prophylactic rule is essential to deter improper search practices. As said in Elkins v. United States, 364 US 206, 217, 80 S Ct 1437, 4 L ed2d 1669 (1960), “the exclusionary rule * * * is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effective available way — by removing the incentive to disregard it.” Seizures by Private Parties: Exclusion in Criminal Cases, 19 Stan L Rev 608 (1967); A Comment on the Exclusion of Evidence Wrongfully Obtained by Private Individuals, 1966 Utah L Rev 271.

•

See United States v. Minker, 312 F2d 632 (3d Cir 1962). In that case the defendant, who shared a trash receptacle situated on the premises but outside the building, had no standing to assert that an examination of the trash by government officials after it was picked up by the trash man was an unreasonable search. The agents seized adding machine tapes and other slips of paper which were linked to defendant by handwriting found on many of the items.

•

Compare Work v. United States, 243 F2d 660 (D.C. Cir 1957). Likewise, if the maids acting without police direction had turned over to the police a product of their cleaning operation, defendant’s constitutional rights would not have been invaded.