Opinion
Court of Appeals No. A-12709 No. 6745
12-12-2018
STATE OF ALASKA, Appellant, v. JASON E. PFEIFER, Appellee.
Appearances: Kenneth M. Rosenstein, Attorney at Law, under contract with the Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellant. Julie Willoughby, Law Office of Julie Willoughby, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 1KE-16-236 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge. Appearances: Kenneth M. Rosenstein, Attorney at Law, under contract with the Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellant. Julie Willoughby, Law Office of Julie Willoughby, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
A grand jury indicted Jason E. Pfeifer on two counts of misconduct involving a controlled substance. The charges arose after Pfeifer crashed his vehicle in downtown Ketchikan and fled, leaving two backpacks in the vehicle. The police searched the backpacks and found the drugs that formed the basis for the two charges.
Following an evidentiary hearing, the superior court ruled that Pfeifer had not abandoned the backpacks and that the police had improperly searched them. Accordingly, the court suppressed the State's evidence and dismissed the indictment against Pfeifer.
The State now appeals the superior court's dismissal of the indictment. The State contends that Pfeifer's backpacks were not subject to Fourth Amendment protection because Pfeifer no longer retained a reasonable expectation of privacy in them. The State argues that the superior court erred by focusing on Pfeifer's ownership interest in the backpacks and the vehicle, rather than focusing on Pfeifer's reasonable expectation of privacy in these items.
For the reasons explained in this decision, we agree with the State that the superior court applied the wrong legal analysis when deciding whether the property was abandoned, and we conclude that the court erred in suppressing the evidence seized. We therefore reinstate the indictment.
Underlying facts
In August 2015, Ketchikan police received a report that a vehicle had crashed into three wooden pillars in downtown Ketchikan. Ketchikan Police Sergeant Robert Cheatam responded to the scene. The vehicle was lying on its passenger side on the public sidewalk, with its driver's side in the air. Some of the contents of the vehicle had spilled onto the sidewalk. Witnesses told the police that the driver had climbed out of the vehicle and run away. Cheatam and another police officer searched the area but were unable to locate the driver.
The police soon determined that the vehicle was registered to Pfeifer at his father's business address in Ketchikan. The police tried to contact Pfeifer and his father. Cheatam also testified that he believed he had his dispatcher call the hospital to determine if Pfeifer had sought medical assistance.
But despite these efforts, the police were unable to locate anyone who claimed responsibility for the vehicle. No one returned any of the calls or messages left by the police for Pfeifer and his father. And no one reported the vehicle missing in the almost ten hours that Cheatam remained on duty that night.
Cheatam impounded the vehicle. After a tow truck operator righted the vehicle onto its tires, Cheatam conducted an inventory of the vehicle's contents in the event that the owner later appeared to reclaim the vehicle and its contents. Cheatam began this inventory search about twenty minutes after he arrived at the scene of the accident.
There were two backpacks in the vehicle. Inside the backpacks, Cheatam found three large bags of capsules containing a material that later tested positive for THC, a metal water bottle containing more capsules with a substance that tested positive for THC, a bong that smelled of marijuana, a digital scale, eleven rubber containers containing marijuana wax oil, and an "Enterprise Plus" card with Pfeifer's name on it.
The day after the accident, a lawyer claiming to represent Pfeifer contacted city officials and inquired about paying for the damage to city property caused by the accident. But three days passed after the accident before someone — Pfeifer's mother — contacted the city and actually claimed the vehicle.
Proceedings
A grand jury indicted Pfeifer on two counts of fourth-degree misconduct involving a controlled substance. One count was for possession of twenty-five or more tablets containing THC and the other count was for possession of three or more grams of a substance containing THC.
Former AS 11.71.040(a)(3)(B) (2015) and former AS 11.71.040(a)(3)(C)(I) (2015), respectively. The events in this case occurred in August 2015. The provisions under which the State charged Pfeifer were repealed in 2016 as part of Senate Bill 91, after the events in this case. See SLA 2016, ch. 36, § 179.
Pfeifer filed a motion to suppress the evidence and to dismiss the case. In his motion, Pfeifer argued that Cheatam had conducted an unlawful inventory search because the officer had, without a warrant, opened and searched closed containers.
The State conceded that an inventory search was improper under State v. Daniel. But the State argued that Cheatam's search was lawful because Pfeifer had abandoned the crashed vehicle and the property inside it on a public street, and he therefore had no reasonable expectation of privacy in the vehicle or the property contained within the vehicle.
State v. Daniel, 589 P.2d 408, 417-18 (Alaska 1979) (holding that a warrantless inventory search of a closed, locked, or sealed container contained within a vehicle is unreasonable and thus an unconstitutional search under the Alaska Constitution).
After an evidentiary hearing, the superior court found that Pfeifer was the driver of the vehicle when it crashed, that he fled the scene, and that he knew the police would soon investigate the crash and learn that he was the registered owner of the vehicle. The court also found that Pfeifer must have known that the police would take possession of the vehicle. But the court found that Pfeifer would not have known that the police would open and search the containers in his vehicle.
Based on these findings, the superior court concluded that the State had not proven that Pfeifer had abandoned the vehicle and its contents, or that Pfeifer had "objectively manifested the intent to give up any and all expectation of privacy in the Subaru and the items left in containers in the Subaru." The superior court then suppressed the evidence and dismissed the indictment.
Why we reverse the trial court's ruling
The question of whether property has been abandoned for Fourth Amendment purposes does not turn on a person's ownership interest in the property, but rather on the person's reasonable expectation of privacy in that property. In Young v. State, we explained that when a person intentionally discards an object in a public place, such that the person "cannot reasonably have any continued expectation of privacy in the discarded property, the property will be deemed abandoned for purposes of search and seizure" and thus, subject to a warrantless search if the presence of the police is otherwise lawful.
State v. Salit, 613 P.2d 245, 255-56 (Alaska 1980); see also 1 Wayne R. LaFave, Search and Seizure § 2.6(b), at 872-73, 878 (5th ed. 2012).
Young v. State, 72 P.3d 1250, 1253 (Alaska App. 2003) (quoting City of St. Paul v. Vaughn, 237 N.W.2d 365, 371 (Minn. 1975), and citing 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 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)).
Prior to our decision in Young, we acknowledged this principle in two unpublished decisions, Benefield v. State and Skelly v. State.
Benefield v. State, 1994 WL 16196519 (Alaska App. Aug. 10, 1994) (unpublished).
Skelly v. State, 1992 WL 12153661 (Alaska App. Nov. 18, 1992) (unpublished).
In Benefield, we held that the defendant, who was fleeing from the police, retained no reasonable expectation of privacy in a duffel bag he left in the open bed of a truck parked by the side of the highway, "where it was exposed to visual and physical inspection by any curious passerby." Likewise, in Skelly, we held that the defendant, who was fleeing from the police, retained no reasonable expectation of privacy in the backpack he discarded in plain view beside a public roadway where the pack lay for approximately a half-hour before the troopers retrieved it — again because, during this time, "any curious passerby might have examined it."
Benefield, 1994 WL 16196519, at *2.
Skelly, 1992 WL 12153661, at *2.
The Utah Supreme Court also applied this principle in State v. Rynhart, a case with facts analogous to this case. In Rynhart, the defendant ran her van off of the road and fled without notifying the police; the defendant left her purse behind in her unlocked vehicle. Noting the "distinction between the concept of abandonment in property law and in the context of the Fourth Amendment," the Utah Supreme Court held that the defendant had abandoned her purse by leaving it unsecured in a public place, and that the ensuing search of her van and her purse by the police was permissible. The court explained that a "property owner need not intend to permanently relinquish ownership or possession to forfeit a reasonable expectation of privacy[.]"
State v. Rynhart, 125 P.3d 938 (Utah 2005).
Id. at 940.
Id. at 943-45.
Id. at 944.
In Pfeifer's case, the superior court mistakenly focused on the objective indications of Pfeifer's intent to retain ownership of the property, rather than examining whether Pfeifer retained an expectation of privacy in the vehicle and its contents that society would recognize as objectively reasonable. The court surmised that Pfeifer intended to reclaim the property at a later date because of Pfeifer's ownership interest in the property. But as the case law establishes, the relevant question is not whether the defendant continued to be the owner of the property, but rather whether the defendant continued to have a reasonable expectation of privacy in the property after leaving it unsecured in a public place.
See United States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000) (noting that abandonment involves "an objective test" and therefore, "it does not matter whether the defendant harbors a desire to later reclaim an item"); see also United States v. Tugwell, 125 F.3d 600, 602-03 (8th Cir. 1997) (upholding finding of abandonment where the defendant left a suitcase "unguarded and unlocked in a public place"); Spriggs v. United States, 618 A.2d 701, 703 (D.C. App. 1992) (holding that simply placing a case on the ground in public and walking away in anticipation of police investigation, regardless of intent to reclaim, is sufficient to support a finding of abandonment); United States v. Oswald, 783 F.2d 663, 668-69 (6th Cir. 1986) (concluding that the defendant relinquished any reasonable expectation of privacy in the briefcase left in his car after he pulled over his burning car, left the keys in the ignition, fled the scene within sixty seconds, and failed to notify authorities of the fire or secure the vehicle against intrusion); Teal v. State, 647 S.E.2d 15, 23-24 (Ga. 2007) (refusing to apply strict property principles in affirming abandonment of a duffel bag left in public after defendant fled the premises).
Applying this test, we conclude that, under the totality of the circumstances as found by the superior court, Pfeifer abandoned his property when he left it unsecured on a public sidewalk in downtown Ketchikan. Even if Pfeifer subjectively intended to later reclaim his property, Pfeifer had no reasonable expectation of privacy in the unsecured vehicle and its contents after he left it in a public place where any passerby could physically inspect it.
On appeal, Pfeifer notes that the police searched his vehicle shortly after arriving at the scene of the accident (within twenty minutes). He argues that such an immediate search of an accident scene is improper — in part because a person may have left the scene as a result of injuries. We need not decide this question here, because in this case, no owner claimed Pfeifer's vehicle or its contents for nearly three days. Thus, even if Cheatam had waited a full day to conduct the search, the property would still have remained abandoned.
Pfeifer also analogizes his case to Beltz v. State. In Beltz, the Alaska Supreme Court held that, under the Alaska Constitution, a person retains some reasonable expectation of privacy in garbage set out for routine collection, despite its being placed unsecured on or adjacent to a public street. Pfeifer argues that if a person has an objectively reasonable expectation of privacy in garbage placed on a public street, then a person must also have a reasonable expectation of privacy in property inside the person's car.
Beltz v. State, 221 P.3d 328 (Alaska 2009).
Id. at 335. --------
But this analogy is inapt. A person who places garbage on the curb for pickup manifests an expectation of privacy by following the rules of the collection company and placing the receptacle in a designated location. Pfeifer's case does not involve a search of a vehicle that was simply parked on or adjacent to a public street. Rather, Pfeifer crashed his car onto a public sidewalk, and he walked away from the car, leaving behind his personal items in the exposed vehicle. Under these circumstances, Pfeifer did not retain any reasonable expectation of privacy in these items.
Conclusion
The decision of the superior court suppressing the seized evidence and dismissing the indictment is REVERSED.