Monday, August 13, 2012

Laptop Inventory Search Fails

After Stephen Gregory Rowell was convicted of identity theft, computer crime and forgery, he appealed.  State v. Rowell, __ P.3d __, 2012 WL 3105981 (Oregon Court of Appeals 2012).  On appeal, he raised three issues, only two of which concern us.  

The first was that the trial judge erred in not suppressing evidence obtained from a laptop bag and computer.  The second issue was that the judge erred in not suppressing evidence found at his home because the warrant for that search was based on evidence obtained from the search of the computer.  State v. Rowell, supra.

This is how the case, and the motions to suppress, arose:

While on patrol on September 27, 2007, Portland officer Strawn saw two vehicles speeding and swerving into oncoming traffic; they were traveling at approximately 45 miles per hour in a 25 miles per hour residential zone. Strawn turned on his lights and siren and followed the vehicles.

One pulled over, and the other drove off. [Rowell] was one of two back seat passengers in the vehicle that pulled over. Strawn discovered the vehicle was a rental, and, when the driver gave him an expired rental agreement, Strawn decided to arrest [him] and impound the vehicle.

Strawn then asked the passengers for identification. . . . [Rowell] was defensive. He asserted he had done nothing wrong and asked why Strawn needed to know his name. Strawn said [Rowell] had witnessed a crime and that he might need a statement from him. The other male passenger gave a false name. When back-up officers arrived, the driver was removed from the vehicle, handcuffed, searched for weapons, and put in a patrol car. . . .

Strawn called the rental company and determined the rental agreement had been renewed by the driver. Nonetheless, the passengers were told to sit on the curb while the officers inventoried the impounded vehicle. They were told that, after the inventory was completed, they would be free to take what they needed and leave.

State v. Rowell, supra.

In South Dakota v. Opperman, 428 U.S. 364 (1976), the Supreme Court held that an inventory search is “reasonable” under the 4th Amendment (which bans “unreasonable” searches) when it is conducted pursuant to standardized procedures that are designed to protect the owner’s impounded property, protect officers from civil suits lost and/or damaged property and protect officers from dangerous items.  As noted above, Strawn conducted an inventory search in this case:

When he opened the trunk, he saw a briefcase, a camera case, a laptop bag, a backpack and some plastic grocery bags. He asked the passengers whether any of the items in the trunk belonged to them. The female passenger [said] a purse in the passenger compartment belonged to her. The other male passenger said the briefcase in the trunk was his and consented to its search, but when Strawn discovered the main compartment was locked, the male passenger [said] he did not have a key.

Initially, no one claimed ownership of the other items in the trunk. [Rowell] said nothing in the car belonged to him. When one of the other passengers [said] the items were left by someone not present, [Rowell said they] belonged to a friend of his, Mikey, and he was watching them for Mikey, though [he] also said he had only known Mikey a few weeks and did not know his last name. Because [Rowell] appeared nervous and his story had changed, Strawn believed he needed to investigate to determine ownership of the laptop bag.

Strawn opened the side pocket of the bag and saw a box of checks that had [Rowell’s]  name on it. He asked [him] about it, and [Rowell] said someone must have put the box in the bag without his knowledge. Officer Daniels, who was assisting with the inventory, opened the main compartment of the bag and saw it contained a laptop. He took it out and recorded its model and serial number.

As Daniels was opening the bag, [Rowell said] he believed the officers needed to obtain a search warrant to open it. Daniels called the model and serial numbers into the service net and determined the laptop had been reported stolen. [Rowell] was arrested for possession of stolen property. Police later obtained a search warrant to analyze the files on the stolen laptop.

State v. Rowell, supra.

Rowell was stopped again while driving on November 17, 2007. State v. Rowell, supra.
He was arrested and the officer impounded his vehicle and conducted an inventory search of it.  State v. Rowell, supra. Police used evidence found in the September 27 and November 17 searches to get a warrant to search Rowell’s home. State v. Rowell, supra.  Rowell was convicted and sentenced to “156 months in prison with three years of post-prison supervision”.  State v. Rowell, supra.

The Court of Appeals began its analysis of Rowell’s first argument by pointing out that, as noted above, an inventory search is lawful if it “is conducted pursuant to a properly authorized administrative program that . . . precludes the exercise of discretion by the law enforcement person conducting it.”  State v. Rowell, supra.  It also noted that if the search “`deviated from the established policy or procedures of the . . . law enforcement agency, the inventory should be deemed invalid.’” State v. Rowell, supra (quoting State v. Atkinson, 298 Or. 1, 688 P.2d 832 (Oregon Supreme Court 1984)).

Rowell did not argue that the vehicle in which the laptop was found was not lawfully impounded.  State v. Rowell, supra.  He argued that the inventory search was not conducted pursuant to the Portland City Code’s provisions on such searches.  State v. Rowell, supra. 

The Portland City Code states that “[u]nless otherwise provided in this Chapter, closed containers located either within the vehicle or any of the vehicle's compartments will not be opened for inventory purposes.” State v. Rowell, supra (quoting Portland City Code § 14C.10.030(C)(3)).  The only provision of “this Chapter” of the Code that deals with inventorying closed containers states that officers can inventory closed containers “in the possession of a person taken into police custody” if the container “is designed for carrying money and/or small valuables on or about the person”.  State v. Rowell, supra (quoting Portland City Code § 14C10.040(C)(3)(c)).

The Court of Appeals agreed with Rowell that he “had not been `taken into police custody’ . . . when the officers searched the laptop bag.”  State v. Rowell, supra.  It also explained that when the inventory search was conducted, Rowell was

seated with the other passengers on a curb next to the vehicle, and was not free to leave. However, Strawn testified that the purpose of the detention was to obtain statements from the occupants of the car as possible witnesses to a crime, not to charge [Rowell] with an offense. Thus, [he] was not actually or constructively restrained. . . .

Further, there was no court order, [Rowell] was neither an allegedly mentally ill person nor a juvenile, nor was the purpose of the restraint to take [him] into custody. Thus, the Portland inventory policy did not authorize searching the laptop bag on the ground that it was in [his] possession.

State v. Rowell, supra.  Since the officers did not comply with the policy noted above, the court found this exception to the 4th Amendment’s default warrant requirement did “not justify the search.”  State v. Rowell, supra. 

The prosecution then argued that Rowell could not “have any protected interest in the bag or its contents because a thief can have no protectable interest in stolen property.”  State v. Rowell, supra.  In other words, the government argued that Rowell had no constitutional right to privacy in the bag and its contents because the laptop was stolen.  State v. Rowell, supra.  The court noted that “[a]ll of the cases” the state cited “for the proposition that a thief does not have constitutionally protected interests in stolen property involve property the police knew was stolen at the time of the search”.  State v. Rowell, supra.

Here, “the police did not know that the bag contained stolen goods” at the time they searched it.  State v. Rowell, supra.  The court therefore found that the prosecution “did not meet its burden to prove that the search of the laptop did not violate” Rowell’s constitutional rights.  State v. Rowell, supra. 

The prosecution also argued that even if Rowell had a protected privacy interest in the bag and its contents, he abandoned it.  State v. Rowell, supra.  The court noted that an “`abandonment’” of one’s privacy interest in 

personal property occurs when there is a voluntary relinquishment of those interests. . . . [Rowell] did not expressly disclaim all interest in the laptop bag. Although he initially denied owning the bag, he subsequently declared he was watching it for a friend and again asserted his rights to the bag when the officers began to open it.

[A] defendant stating that an article of property does not belong to him does not alone objectively establish an intention to relinquish all constitutionally protected interests in that property. . . . Thus, even his initial denial of ownership did not necessarily amount to a complete relinquishment of his rights. And that initial disavowal was renounced when he claimed that he was watching the bag for someone else.

State v. Rowell, supra.  The court held, therefore, that under these circumstances the officers could not “have reasonably concluded” that Rowell “intended to relinquish his” privacy interests in the laptop bag.  State v. Rowell, supra. 

The court therefore held that because the search of the laptop bag was not justified by any applicable exception to the warrant requirement, the warrantless search of the bag violated Rowell’s constitutional rights and the “trial court erred in denying [his] motion to suppress the evidence discovered as a result of that search.  State v. Rowell, supra. 

The court then addressed Rowell’s argument that the trial judge also erred in denying his motion to suppress evidence obtained when officers searched his home.  State v. Rowell, supra.  As noted above, he argued that this evidence should be suppressed because the warrant used to justify the search of his home was based, in part, on evidence obtained from the laptop.  State v. Rowell, supra. 

The Court of Appeals explained that its

review of the warrant application reveals that it relies on evidence discovered from both the September 27, 2007, search of the laptop bag and the November 17, 2007, stop that [Rowell] has not challenged. On the record before us, however, we cannot determine whether the affidavit in support of the warrant would have been sufficient to justify issuing the warrant if the computer-derived information had been excised. . . .

State v. Rowell, supra. 

The court therefore reversed Rowell’s conviction and remanded the case for “further proceedings.”  State v. Rowell, supra. 

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