State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan
Issue/Holding: No expectation of privacy protected papers left in courthouse hallway and subsequently seized and photocopied by court personnel:
¶12 Although Russ’s main brief on this appeal asserts that, as testified-to by Carlson, the affidavits were in a folder when Carlson saw them, the circuit court found that when Commissioner Sweet first saw them they “were spread out on a public bench” … . The circuit court thus concluded that the commissioner did not invade Russ’s privacy when he took the documents. We agree. See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); see also State v. Barrett, 401 N.W.2d 184, 189–190 (Iowa 1987) (no reasonable expectation of privacy in personal journals inadvertently left in restaurant); State v. Flynn, 360 N.W.2d 762, 765, 766 (Iowa 1985) (“the place where seized property is located may be so exposed as to negate any reasonable expectation of privacy”) (no reasonable expectation of privacy in paper sacks containing financial records and cassette tapes left under a tarpaulin on a golf course “accessible to all of the private members and others given permission to enter”). There was thus no illegal search when the commissioner picked up and looked at the affidavits.
¶13 There was also no illegal seizure when the commissioner photocopied the affidavits. “A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Here, as we have seen, the commissioner was lawfully entitled to look at the affidavits, which, as the circuit court found, were “in plain view” and “[t]heir potential incriminating character was immediately apparent.” See Katz, 389 U.S. at 351; Cardwell v. Lewis, 417 U.S. 583, 591–592, 594 (1974) (Fourth Amendment not violated by “the taking of paint scrapings from the exterior of the vehicle left in the public parking lot.”); United States v. Mancari, 463 F.3d 590, 596 (7th Cir. 2006) (photographing items in plain view does not violate the Fourth Amendment). Russ’s Fourth Amendment rights were not violated. Accordingly, the circuit court properly denied Russ’s motion to suppress.
Not hard to read between the lines: Russ, a process server, had ruffled feathers, ¶7, with court staff only too glad to hunt and peck through his paperwork. If there’s a moral, it might be that you don’t want to leave forged documents lying around people who bear you ill-will.
