A jury convicted Michael D'Antorio of engaging in a scheme to defraud in violation of AS 11.46.600(a)(1).
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.
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
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.
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
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.
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.
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.
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.
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, 107 S.Ct. 738, 741-42, 93 L.Ed.2d 739 (1987) (citing Illinois
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, 58 Ohio St.2d 478, 391 N.E.2d 317, 319, cert. denied, 444 U.S. 942, 100 S.Ct. 297, 62 L.Ed.2d 309 (1979) (quoting United States v. Edwards, 577 F.2d 883, 893 (5th Cir.) (en banc), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (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, 96 S.Ct. at 3102-03 (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, 65 Ohio St.3d 403, 604 N.E.2d 743, 745 (1992).
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.
More recently, the United States Supreme Court has reiterated this limitation on inventory searches stating:
Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990) (quoting Colorado v. Bertine, 479 U.S. 367, 376, 107 S.Ct. 738, 743, 93 L.Ed.2d 739 (1987) (Blackmun, J., concurring)); see also Commonwealth v. Sullo, 26 Mass.App.Ct. 766, 532 N.E.2d 1219, 1221 (1989) (police prohibited from hunting for information, sifting or reading materials taken from arrestee);
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:
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
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:
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."
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, 96 S.Ct. at 3101-03 (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, 96 S.Ct. at 3101-03 (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, 106 Wis.2d 503, 317 N.W.2d 428, 436 (1982), cert. denied, 459 U.S. 967, 103 S.Ct. 294, 74 L.Ed.2d 277 (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, 110 S.Ct. 3286, 111 L.Ed.2d 795 (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
Further, in U.S. v. Andrews, 22 F.3d 1328, 1335 (5th Cir.1994), the court upheld a similar search, stating:
(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
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
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, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974):
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.
If, on the other hand, Sergeant Stauber's examination merely repeated Detective
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
D'Antorio points to the closing arguments where the State argued:
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, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967) (adopting rule that constitutional error in admitting evidence must be shown harmless beyond reasonable doubt).
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
We hereby REVERSE D'Antorio's conviction and REMAND for a new trial.
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).
Model Code of Pre-Arraignment Procedure § SS 230.6 (A.L.I. 1975).
The commentary on this section provides:
Model Code of Pre-Arraignment Procedure § SS 230.6 commentary at 530.
Sullo, 532 N.E.2d at 1222 n. 5 (quoting 2 Wayne R. LaFave, Search & Seizure § 5.3(a), at 482 n. 30 (2d ed. 1987)).
Id. 742 P.2d at 1361 (citation omitted); Khoury, 901 F.2d at 958 (subsequent warrantless inspection of a diary following valid inventory constitutes violation of Fourth Amendment).