author: VOIGT, Justice.

text:
    2003 WY 87
    Richard Lee SMITH, Appellant (Plaintiff), v. Debra H. SMITH, Appellee (Defendant).
    No. 02-238.
    Supreme Court of Wyoming.
    July 17, 2003.

      Richard L. Smith, Pro Se, Representing Appellant.
    Debra H. Smith, Pro Se, Representing Ap-pellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶1] Richard L. Smith (appellant) appeals from a Final Order and Judgment of the district court that denied his petition to modify a divorce decree's child support obligation and granted certain other relief to Debra H. Smith (appellee). Finding no abuse of discretion, we affirm, but remand for correction of a clerical error in the Final Order and Judgment.

ISSUES

[¶2] The appellant presents the following issues for resolution:

I. - Did the district court err in finding that there was no significant depreciation in [appellant's] assets?
IIL - Did the district court err in ordering the [appellant] to pay $1,126.00 per month for each child without setting forth any deviation as required by statute?
Did the district court err in determining that the child support had not changed by 20 percent? IIL
IV. Did the district court err when it awarded a judgment for child support arrearages when the official record of the district court showed that no ar-rearage was due?

FACTS

[¶3] The parties were married in 1985. The marital union produced three children, all of whom were minors when the parties divorced in 1995. The Decree of Divorce incorporated the terms of a Property Settlement, Child Custody and Child Support Agreement. In the divorce, the appellee obtained primary custody of the children and the appellant was ordered to pay a total of $800.00 per month in child support. Both parties filed financial affidavits along with their stipulation. There is no indication in the record that the child support amount deviated from statutory guidelines.

[¶4] In the years following the divorcee, the appellant's child support payment history was not good. The record is replete with motions and orders to show cause, garnishments, and judgments for child support ar-rearages. On March 28, 2000, the appellant filed a Petition for Modification of Child Support. In the petition, he alleged "serious financial difficulties" being experienced by his business and an increase in the appellee's monthly income, the combined effect of which would be a reduction in his child support obligation in excess of twenty percent.

[¶5] In her Response to Petition for Modification of Child Support, the appellee denied an increase in her monthly income, denied that a twenty percent decrease in the current support amount would result, and requested payment of her costs and attorney's fees for defending against the petition. In a subsequent Supplement to Response to Petition for Modification of Child Support, the appellee alleged that the appellant's income had actually increased, and requested an increase in child support.

[¶6] After a trial, the district court found generally in favor of the appellee and against the appellant. The district court computed the appellant's net monthly income at $4,320.00 and the appellee's net monthly income at $1,078.00. The district court determined the presumptive monthly support amount for three children to be $1,407.00, and established the appellant's share of that amount as $1,126.00. The Order and Judgment was made effective September 1, 2000.

[¶7] On February 8, 2002, acting pro se, the appellant filed a Petition for Review and Adjustment of Child Support and Modification of Divoree Decree. The appellant alleged that one of the parties' children had been living with him since May 2001, that application of the statutory guidelines would result in at least a twenty percent change in his child support obligation, that he was entitled to fifty percent reimbursement for medical expenses, and that he was entitled to costs and attorney's fees. The appellee's pro se response generally denied these allegations and narrated the appellant's continued failure to abide by existing court orders.

[¶8] After a trial, the district court once again found generally for the appellee and against the appellant. Specifically, the district court found as follows:

[The appellant] has not met his burden of proving a substantial change of cireum-stances such that the support amount would change by 20% or more per month. [The appellant] has not demonstrated any substantial change in his income since the last determination in August of 2000. [The appellant] continues to own valuable assets not in keeping with his claims of low net income. The deposits to his bank accounts indicate a higher income than used in the child support computations. [The appellant] claims that these amounts are greatly reduced by expenses but he has not proven that many of these expenses are proper deductions from income under Wyoming law or federal income tax law.
[The appellant] bas also not proven that [the appellee's] income has substantially increased nor that her income is such as to require that she provide medical coverage for the children.
[The appellee] is entitled to a judgment against [the appellant] of $2074.88 for reimbursement of medical bills, $3924.22 for child support arrearages, and $5167.40 for attorney's fees and costs. [The appellant] is in contempt for not paying the medical bills and for claiming the children as dependents on his federal tax returns when he was not current in his child support payments.

STANDARD OF REVIEW

[¶9] We described our standard of review for modification of child support orders in Goody v. Goody, 939 P.2d 731, 733 (Wyo.1997):

Modification of the provisions of a divorce decree is appropriate only in limited circumstances. Smith v. Smith, 895 P.2d 37, 41 (Wyo.1995). The party seeking modification of a child support order must establish that there has been a material and substantial change in cireumstances subsequent to the decree which outweighs the interests of society in applying the doctrine of res judicata. Id., Pinther v. Pinther, 888 P.2d 1250, 1253 (Wyo.1995), Nuspl v. Nuspl, 717 P.2d 341, 345 (Wyo.1986); see also W.S. 20-6-306(a). The district court's decision to modify a divorce decree is reviewed for abuse of discretion. Rocha v. Rocha, 925 P.2d 231, 233 (Wyo.1996) (citing Cranston v. Cranston, 879 P.2d 345, 349 (Wyo.1994)).

An abuse of discretion has occurred when the trial court could not reasonably have concluded as it did, or when any facet of its ruling was arbitrary or capricious. Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998).

DISCUSSION

[¶10] The appellant's primary argument is that, in denying his petition for a decrease in his child support obligation, the district court improperly ignored the fact that the appellant's financial asset base had been significantly depleted since the prior modification by the forced sale of property to pay child support arrearages. He also contends that the district court improperly considered as income payments the appellant will receive from the sale of his business, a business that was already contemplated as an asset under the divorce. The appellant relies on Bollig v. Bollig, 919 P.2d 136, 137 (Wyo. 1996); Klatt v. Klatt, 654 P.2d 733, 738-39 (Wyo.1982); and Paul v. Paul, 616 P.2d 707, 712 (Wyo.1980), for the proposition that "contemplation of previously divided assets a see-ond time, as income for purposes of post-decree child support adjustments, is inequitable ...." The appellant also alleges that the district court erred in not finding a twenty percent change in his monthly child support obligation and in awarding a judgment for child support arrearages when the official court record showed no arrearage existed.

[¶11]l We begin our discussion of these issues by noting that the appellant has provided neither a transcript of the trial testimony pursuant to W.R.A.P. 8.02 nor a statement of the evidence pursuant to W.R.A.P. 3.08. There also does not appear to have been a request for special findings of fact and conclusions of law under W.R.C.P. 52(a). It is the appellant's burden to bring a complete record to this Court. Erhart v. Evans, 2001 WY 79, ¶18, 30 P.3d 542, 547 (Wyo.2001); Wood v. Wood, 865 P.2d 616, 617 (Wyo.1993). Where a proper record is not provided, an appeal may be dismissed or review may be limited to those issues not requiring inspection of the record. Stadtfeld v. Stadtfeld, 920 P.2d 662, 664 (Wyo.1996) (quoting Matter of Manning's Estate, 646 P.2d 175, 176 (Wyo.1982)); Wood, 865 P.2d at 618.

Without a sufficient record, we must

"accept the 'trial court's findings as being the only basis for deciding the issues which pertain to the evidence. Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d 769, 771 (Wyo.1995). 'In the absence of anything to refute them, we will sustain the trial court's findings, and we assume that the evidence presented was sufficient to support those findings! 896 P.2d at 771-72."

Williams v. Dietz, 999 P.2d 642, 645 (Wyo.2000) (quoting Weiss v. Pedersen, 933 P.2d 495, 498 (Wyo.1997), abrogated on other grounds by White v. Allen, 2003 WY 39, 65 P.3d 395 (Wyo.2003)). Furthermore, pro se litigants are held to the same standards as those represented by counsel. Dewey v. Dewey, 2001 WY 107, ¶ 17, 33 P.3d 1143, 1147 (Wyo.2001); In Interest of KMM, 957 P.2d 296, 298 (Wyo.1998).

[¶12] The findings and conclusions of the district court in the instant case do not, on their face, reveal that the district court committed any of the alleged errors Without a record, we cannot say that the district court ignored the appellant's evidence of a decreased asset base, or that the district court improperly considered an "already considered" asset in determining the appellant's child support obligation, or that the district court erred in finding that support had not changed by twenty percent, or that the district court erred in finding an arrearage different from that shown in the court's records. We simply do not know what any of the evidence was in regard to any of those issues, and the version of the facts argued by the appellant in his brief cannot substitute for that evidence. We will affirm the district court in regard to the first, third, and fourth of the appellant's issues.

[¶13] As to the second issue, we will remand for correction of a clerical error. Before the hearing on the appellant's petition, his child support obligation for three children was a total of $1,126.00 per month. The district court concluded that no substantial change in cireumstances had taken place and that no change was due in the child support amount. Nevertheless, the Final Order and Judgment contained the following language:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [the appellant] shall continue to make child support payments to [the appellee] through the Clerk of the District Court for the benefit of the minor children in the amount of $1,126 each in accordance with the initial Decree of Divoree, as amended by subsequent orders of this Court.

[¶ 14] The appellant contends that this language tripled his child support obligation from $1,126.00 per month to $1,126.00 per child per month. We are convinced, and the appellee admits in her brief, that there was no intent to change the amount of child support. Most likely, the word "month" was omitted after the word "each." We remand to the district court with direction to correct this error.

CONCLUSION

[¶15] The appellant has failed to present this Court with a sufficient record for review of the issues he has presented. We affirm the district court because there is nothing before us from which we can determine that the district court's findings and conclusions are in error. We remand solely to correct a clerical error in the Final Order and Judgment.

      . Wyo. Stat. Ann. § 20-2-311(a) (LexisNexis 2003) requires petitions for modification to allege that the support will change by twenty percent or more if the statutory guidelines are applied to the present income figures.

      . Now Wyo. Stat. Ann. § 20-2-311.

      . The quoted findings and conclusions are from the district court's decision letter. The subsequent Final Order and Judgment contained substantially similar language.


source: Caselaw Access Project

license: Public Domain

text:
    2003 WY 88
    In the Matter of the Worker's Compensation Claim of Cheryl KESTIE. State of Wyoming, ex rel., Wyoming Workers' Safety and Compensation Division, Appellant (Respondent), v. Cheryl Kestie, Appellee (Petitioner).
    No. 02-194.
    Supreme Court of Wyoming.
    July 17, 2003.

      Hoke MacMillan, Attorney Genéral; John W. Renneisen, Deputy Attorney General; and David L. Delicath, Assistant Attorney General, Cheyenne, Wyoming, Representing Appellant.
    Barbara A. Baker, Sheridan, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶1] The district court reversed a determination by the Worker's Safety and Compensation Division (Division) that the appel-lee, Chery] Kestie (Kestie), was untimely in responding to the Division's final determination denying benefits. We affirm the district court and remand to the district court for further remand to the Division for proceedings consistent herewith.

ISSUES

[¶2] The parties' divergent views of this case are reflected in their divergent statements of the issue being appealed. The Division presents the issue as follows:

The agency determined that Ms. Kestic did not file a timely response to the Division's January 21, 2000 final determination denying benefits for carpal tunnel syndrome. Does substantial evidence support that determination?

[¶3] Kestie describes the issue quite differently:

Did the District Court properly determine that Employee/Claimant should be entitled to present evidence regarding her medical condition based upon her June 2001 filing?

FACTS

[¶4] Kestie worked for Children's Center in Sheridan. In November 1999, she submitted to the Division a claim for worker's compensation benefits for a condition she suspected to be carpal tunnel syndrome. The claim was submitted on the wrong form-employer instead of employee-and it contained no authorization for the Division to obtain Kestie's medical records. Nevertheless, the Division treated Kestie's submission as an injury report and sent Kestie a letter entitled "Initial Review: Notice of Lack of Information," asking Kestie to complete an enclosed injury report form, a written statement as to how the injury occurred, and an authorization to release medical information.

[¶ 5] The Division requested receipt of Kestie's written responses by January 3, 2000. Kestie did not respond, however, and on January 21, 2000, the Division issued a Final Determination denying benefits for lack of medical information and Kestie's failure to sign and submit the Employee's Report of Injury. The Final Determination also notified Kestie that she had the right to file a written objection and request for hearing on or before February 11, 2000. That date passed without Kestie submitting anything further to the Division.

[¶6] On May 9, 2001, nearly sixteen months after issuance of the Final Determination, the Division received from Kestie another Employer's Report of Injury. Then, on June 16, 2001, Kestie filed an Employee's Report of Injury. The reports indicated symptoms similar to those Kestie had reported in November 1999, and indicated that the employer had been notified of the injury on December 15, 1999. The Division considered the reports filed in 2001 to be an untimely objection to the Final Determination of January 21, 2000, and sent Kestie a Notification of Late Response. on July 5, 2001. The notification stated that Kestie had until July 26, 2001, to file a written request for a hearing if she "still believe[d] that [her] objection was timely filed...." On July 12, 2001, the Division received Kestie's letter requesting 'a hearing. ©

[¶7] A hearing examiner from the Division's Internal Hearing Unit conducted an evidentiary hearing on October 17, 2001. At the hearing, Kestie testified that the application for benefits in 2001 was for the same condition she had in 1999. She'further testified that, although she had received the Notice of Lack of Information, the press of family matters dictated that "it was not a good time" to pursue worker's compensation benefits, so she did not respond to the Division's request.

[¶ 8] The hearing examiner issued recommended findings of fact and conclusions of law. After setting forth the facts outlined above and chronicling the Division's utilization of proper statutory and administrative procedures, including appropriate notice to Kestic, the hearing examiner recommended that a final order be entered finding that Kestie did not respond to the Final Determination within the time allowed by law and declaring the Final Determination a final order binding on all parties and not subject to further administrative or judicial review. The Final Agency Order to that effect was signed November 23, 2001, by the Director of the Department of Employment.

[¶9] Kestic challenged the final order by filing in the district court a Petition for Review of Administrative Action pursuant to Wyo. Stat, Ann. § 16-8-114 (Lexis-Nexis 2008) and W.R.A.P. 12. The district court reversed and remanded the case to the Division "with the direction to allow Petitioner/Claimant an opportunity to present evidence regarding claims for possible compensable injury submitted in June of 2001." The Division has appealed that decision to this Court.

STANDARD OF REVIEW

[¶10] In appeals from administrative agencies, we afford no deference to the conclusions reached by the district court and we review such cases as if they had come directly from the agency. Appleby v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 84, ¶ 9, 47 P.3d 613, 616 (Wyo.2002). Where both parties presented evidence at the agency hearing, we apply the substantial evidence test to findings of fact. Newman v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 91, ¶ 22, 49 P.3d 163, 171 (Wyo.2002). That test has been described as follows:

"In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusion. It is more than a scintilla of evidence."

Id., 2002 WY 91, ¶ 12, 49 P.3d at 168 (quoting In re Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, 1136 (Wyo0.2001)). Even where there is substantial evidence to support the findings of fact, however, we may apply the "arbitrary and capricious" standard as a "safety net" to catch agency action that prejudiced a party's substantial right to the administrative proceeding or was contrary to other administrative review standards. Hoff v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 129, ¶ 8, 53 P.3d 107, 110 (Wyo.2002). We affirm an agency's conclusions of law only if they are truly in accord with law. Kuntz-Dexter v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 101, ¶10, 49 P.3d 190, 193 (Wyo.2002). "Whether an employee's claim is to be barred for failure timely to file notice or a claim is a mixed question of fact and law." Logue v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 62, ¶ 13, 44 P.3d 90, 95 (Wyo.2002).

DISCUSSION

[¶11] The Division argues that the only issue before the agency and subsequently before the district court on appeal was whether Kestie had complied with the procedural requirements to have her claim decided on the issue of compensability. The Division contends that the district court erred when it ordered a remand because substantial evidence supports the Director's ruling that Kestie's objection was untimely. The Division argues that the 2001 injury report is either an untimely response to the Division's final determination denying benefits or it is an untimely report of a 1999 injury.

[¶12] Kestie's response is multi-faceted. First, she contends that in 1999 she had not even been to a doctor and had not been diagnosed. Consequently, the nature, cause, and date of her injury were unknown. Second, Kestie contends that her 1999 submission should not even have been considered a claim, inasmuch as it did not meet basic filing requirements. Third, Kestie notes that the Division denied benefits after the 1999 filing on the ground that "we cannot open the case because an unsigned injury report is not filed in a manner prescribed by the Division...." And fourth, Kestie argues that her 2001 filing clearly was a report of injury and not an objection to the earlier denial.

[¶13] The district court's reversal of the Final Agency Order was premised upon the following reasoning:

CTS [carpal tunnel syndrome] is a condition generally not described as trauma resulting from one incident. Prior cases indicate CTS can be caused and/or aggravated by employment. Determining if CTS is a work related, compensable injury requires an analysis of whether, "... work effort contributed to a material degree to the precipitation, aggravation or acceleration of the existing condition of the employee." Frontier Refining, Inc. v. Payne, 23 P.3d 38, 40 (Wyo.2001).
Even if Petitioner suffered from CTS in 1999, she did not have an opportunity to present evidence of any aggravation or acceleration of an existing condition due to denial on procedural grounds. It seems noteworthy that Petitioner's 1999 claim did not contain expert opinion that she suffered from CTS. Petitioner's lay opinion her condition in 2001 was the same as in 1999 should not preclude either side from offering expert medical opinions on the subject.

(Emphasis in original.)

[¶14] The district court did not simply conclude that the Division's reliance upon procedural default denied Kestic an opportunity to be heard on the merits, so she should be afforded such an opportunity. Rather, the district court correctly concluded that by treating Kestie's 2001 injury report as a late-filed objection to the Division's Final Determination, the Division denied Kestie the chance to prove that the injury from which she suffered in 2001 was compensable. Kes-tie's lay opinion that the underlying condition was the same, in and of itself, should not have been fatal to her claim. The Division must assess the 2001 injury report on its own merits, or lack thereof.

CONCLUSION

[¶15] The Division erred in treating Kes-tie's 2001 report of injury as an untimely objection to denial of her 1999 claim. We affirm the district court and remand to the district court for remand to the Division for further proceedings consistent with this opinion.

      . Kestie had not at that time been examined by a physician and she did not have a physician's diagnosis.

      . The record does not disclose how it came about that Kestie filed two separate reports in 2001.

      . By this resolution, we do not hold that the Division is foreclosed from assessing whether the 2001 filing met the procedural requirements for an injury report, including timeliness.


author: MANNHEIMER, Judge.

text:
    Brian T. YOUNG, Appellant, v. STATE of Alaska, Appellee.
    No. A-8056.
    Court of Appeals of Alaska.
    July 3, 2003.
    Cynthia L. Strout, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

A police officer saw Brian Young shove a small object underneath a motel door, in an apparent attempt to hide the object from the officer. The officer handcuffed Young, then reached under the door and retrieved two crumpled pieces of tissue paper. The officer opened the tissue paper bundles and found several "rocks" of crack cocaine.

The State offers one justification for the officer's act of seizing and then opening the two tissue paper bundles: the State asserts that Young abandoned the tissue paper bundles when he shoved them under the door. We disagree. We conclude that Young's conduct did not constitute an abandonment of this property, but rather an attempt to conceal it.

Because the officer observed Young's attempt to conceal the property, the officer would have been authorized to seize (but not necessarily open) the tissue paper bundles under the "plain view" doctrine if the officer had had probable cause to believe that the tissue paper bundles were evidence of a crime. But the State does not argue that the officer had probable cause to believe that the tissue paper bundles contained illicit drugs-at least, not until he opened them. It therefore appears that the seizure of the tissue paper bundles was unlawful. Moreover, even assuming that the seizure of the tissue paper bundles was lawful, the officer had no authority to open the bundles without a warrant-because these bundles were not distinctive, single-purpose containers for transporting drugs. Therefore, the cocaine found inside the tissue paper bundles must be suppressed, and Young's conviction must be reversed.

Underlying facts

Around midday on February 6, 2000, several Anchorage police officers responded to a disturbance at the Mush Inn Motel in Anchorage. While the officers were wrapping up their investigation, one of them noticed a young man (Brian T. Young) poke his head around the corner of a building. When Young observed the officers, he looked surprised, and then he ducked back out of the officers' sight.

Officer Pablo José Paiz decided to investigate. When Paiz went around the corner, he saw Young and another man conversing in an entryway inside the hotel. When these two men saw Paiz approaching, they separated and went in different directions: Young went down the stairs, while the other man went up.

Paiz decided to follow Young down the stairs. As he was coming down the stairs, Paiz saw Young crouching down on his knees, using both hands to "shovel something white under a doorway". Paiz believed that Young "was trying to hide something" from him.

Paiz walked up to Young and immediately handcuffed him. Paiz asserted that he did this to protect his own safety. (Young was not armed, and he made no aggressive movements, but the hallway in which they were standing was confined, and there were three closed doors nearby.)

After handcuffing Young, Paiz asked Young to tell him what he had shoved under the door. Young replied that he had not shoved anything under the door-that he had "simply been picking up a condom that he had dropped".

When back-up officers arrived, Paiz had them escort Young out of the hallway and back into the entryway. Paiz then swept his fingers under the door. He discovered two opaque pieces of crumpled tissue paper. Paiz opened these tissue paper bundles and found several rocks of crack cocaine. Based on this discovery, Young was indicted for fourth-degree controlled substance misconduct.

Did Young "abandon" the tissue paper bundles (for purposes of search and seizure law) when he tried to hide them under the door?

Before trial, Young asked the superior court to suppress the cocaine. Among other things, Young argued that suppression was required because (1) Officer Paiz lacked reasonable suspicion of criminal activity when he seized and handcuffed Young, and (2) Officer Paiz lacked the authority to open the tissue paper bundles without a search warrant. Young renews these arguments on appeal.

The State contends that Young's first argument (unlawful seizure of his person) is moot because Officer Paiz's discovery of the cocaine did not stem from the officer's act of stopping and handcuffing Young. With one exception (which we will explain), we agree with the State. Paiz observed Young shoving something white under the motel door while Paiz was coming down the stairs, before the officer made contact with Young. Even if the ensuing detention of Young was illegal, this illegal detention did not give rise to the officer's knowledge that Young had just shoved something under the door.

However, even though Paiz had seen Young shove the tissue paper bundles under the door, there is substantial reason to believe that the officer would not be authorized to reach under the door and seize Young's property unless the officer already had probable cause to believe that this property contained contraband or was otherwise evidence of a crime. The parties do not address this issue in their briefs. However, as Professor LaFave explains in his treatise on the law of search and seizure:

It is ... important to understand that while the ... observation [of an object in] plain view ... settles the lawfulness of the observation itself, it does not determine whether [an ensuing] seizure of the. ob- . served object would likewise be lawful.... [This] point was made by the [United States] Supreme Court in Ilinois v. Andreas, [463 U.S. 765, 103 S.Ct. 3319, 77 LEd.2d 1003 (1983),] where [the Court] cautioned that the plain view doctrine "authorizes seizure of illegal or evidentiary items visible to a police officer" only if the officer's "[physical]l access to the object" itself has a "Fourth Amendment justification". ,

Wayne R. LaFave, Search and Seigure: A Treatise on the Fourth Amendment (Brd ed.1996), § 2.2(a), Vol. 1, pp. 899-400.

Thus, even though an officer may lawfully look through the window of a residence and observe contraband, the plain view doctrine does not justify the officer's entry into the residence to seize the contraband-because the police may not enter a residence without a warrant. The fact that the contraband is in plain sight within the premises "has no bearing upon the question of whether an intrusion into those premises may now be made for the purpose of seizing that contraband." Id. at 400. "By the same token," Professor LaFave explains, "if the plain view is of an object on the person of some individual, ... the seizure of that object from the person [must stilll occur pursuant to a warrant, [or] incident to arrest, or ... under exigent circumstances." Id. at 401.

Professor LaFave points out that this same principle applies to the type of situation presented in Young's case:

[EJven when the plainly viewed object could be seized without interfering with a person or entering upon protected premises, it cannot be said that the [officer's] right of seizure flows automatically from the plain view. Except when the object has been abandoned, the seizure itself constitutes an interference with "effects" protected by the Fourth Amendment, and this means that[,] in the absence of a search warrant[,] some recognized ground for warrantless seizure, equally applicable outside plain view cases, must be present.

Id. at 401.

Thus, it appears that Paiz may have violated Young's rights when he seized the tissue paper bundles without first having probable cause to believe that they constituted evidence of a crime. Moreover, even if we assume that Paiz had the authority to reach under the door and retrieve the tissue paper bundles, Paiz would not have been authorized to open them (without first obtaining a warrant) unless he knew that these bundles were distinctive, single-purpose containers used for carrying illicit drugs.

On appeal, the State does not argue that Paiz had the authority to retrieve and seize the tissue paper bundles from underneath the door. Nor does the State argue that, after Paiz retrieved the tissue paper bundles from underneath the door, he recognized them as distinctive, single-purpose containers used for carrying illicit drugs-thus authorizing him to open the bundles and inspect their contents. Rather, the State attempts to circumvent these Fourth Amendment problems by arguing that the tissue paper bundles were "abandoned" property-that Young voluntarily relinquished all interest in the tissue paper bundles when he shoved them under the door.

For Fourth Amendment purposes, a person who abandons property gives up any expectation of privacy in that property. State v. Salit, 618 P2d 245, 255 (Alaska 1980). In Young's appeal, the State relies on the converse of this statement: the State contends that a person who jeopardizes their expectation of privacy in an article of property thereby "abandons" it. Thus, the State argues, when Young shoved the tissue paper bundles under the door, relinquishing direct physical control over these objects and putting them in a place where (at least potentially) others might observe and find them, Young abandoned any privacy interest in the tissue paper bundles.

But the State's basic premise is not true. While abandonment of property extinguishes a person's expectation of privacy in the property, there are many things that a person might to do diminish or defeat their expectation of privacy in an article of property that do not amount to abandonment of the property.

For instance, a person who loans property to a friend can not complain (for Fourth Amendment purposes) if the friend allows the police to search the property. Similarly, if the property owner shares living space with another person, and this other person allows the police to enter and search the shared residence, the property owner can not complain if the police find the property (or observe some incriminating aspect of the property) during their search. By the same token, if a person places their property on their lawn or on display in their window, and some incriminating aspect of the property is perceived by a passerby, the property owner can not complain. Finally, the cases that come to this Court often present situations where people have consented to have the police examine or search through their property-their billfold or purse, the trunk of their vehicle, the pockets of their clothes. In all of these instances, the property owner has done something to diminish or defeat their expectation of privacy in the property, but in no sense has the property owner "abandoned" the property.

Abandonment occurs only when the property owner has discarded the property-that is, done something to objectively manifest the intent to give up any and all expectation of privacy in the property, now and in the future. And here, the courts distinguish between the abandonment of property and unsuccessful attempts to hide property.

As noted by the Seventh Circuit in United States v. Basinski, 226 F.3d 829, 887 (Tth Cir.2000), abandonment cases typically can be divided into three different categories. The first type of abandonment occurs when an individual intentionally discards an object in a public place-often jettisoning the article while fleeing from the police. Id. Under these circumstances, "[when] the presence of police is lawful and the discard occurs in a public place where the defendant cannot reasonably have any continued expectation of privacy in the discarded property, the property will be deemed abandoned for purposes of search and seizure." City of St. Paul v. Vaughn, 306 Minn. 387, 287 N.W.2d 865, 371 (1975).

A second, related type of abandonment occurs when an individual places an object in a curbside trash container for collection. California v. Greenwood, 486 U.S. 85, 37, 108 S.Ct. 1625, 1627, 100 L.Ed.2d 30 (1988); Smith v. State, 510 P.2d 798, 796 (Alaska 1973). By discarding the object in this manner, the owner "leads reasonable people to believe that he no longer cares what becomes of his trash, or [of] article mistaken for trash". Basinski, 226 F.3d at 837.

Finally, "an abandonment may arise out of a disclaimer of ownership which is made in response to police questioning." LaFave, § 2.6(b), p. 581. See State v. Salit, 618 P.2d 245, 258 (Alaska 1980) (holding that the defendant abandoned a garment bag when he repeatedly denied that it belonged to him). Under such cireumstances, the individual who denies ownership of the item can not reasonably expect to retain any privacy interest in the item. United States v. Tolbert, 692 F.2d 1041 (6th Cir.1982). However, the disclaimer of ownership must arise from lawful police questioning. Salit, 618 P.2d at 256.

On the other hand, abandonment does not occur simply because a person temporarily relinquishes possession or control of an object. LaFave, § 2.6(b), p. 577. Compare United States v. Thomas, 864 F.2d 843, 846-47 (D.C.Cir.1989) ("The law obviously does not insist that a person assertively clutch an object in order to retain the protection of the fourth amendment.").

For example, in United States v. Jackson, 544 F.2d 407 (9th Cir.1976), a drug enforcement agent approached Jackson in an airport and said, "I'd like to talk to you." Jackson dropped his suitcase and took three steps before he was arrested. Id. at 409. On these facts, the Ninth Circuit refused to find abandonment: "We are not persuaded that the simple acts alone of putting a suitcase down and walking on a few steps before being stopped indicate an intent to abandon the suitease." Id. at 410. Similarly, in United States v. Boswell, 347 A.2d 270 (D.C.App. 1975), the court found no abandonment when the defendant placed a blanket-covered object down in a hallway while he made a telephone call some 20 to 30 feet away. Id. at 278-74. Onee again, the court explained that the defendant's actions were insufficient to show an intent to abandon the object. Id.

See also Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) (finding that the defendant's act of throwing a paper bag onto the hood of a car was insufficient to constitute abandonment of the property); People v. Campbell, 160 A.D.2d 363, 364, 554 N.Y.8.2d 108 (1990) (finding insufficient evidence of abandonment where police officers testified that the defendant placed a paper bag on a newsstand shelf, but then disagreed as to whether she attempted to walk away or, instead, responded to the officers' request to stop and walk toward them).

In the present case, the superior court found that Young's act of slipping the tissue paper bundles under the motel door constituted abandonment. But even when viewed in the light most favorable to the superior court's ruling, Young's conduct does not appear sufficient to establish abandonment.

Young did not throw the tissue paper bundles away, nor did he even walk away from these bundles after he hid them beneath the door. Rather, Young simply crouched down and hid the tissue paper bundles in a location within his reach. As soon as Young stood up again, Officer Paiz handcuffed him. This series of events does not bespeak Young's clear intent to permanently relinquish ownership or control of the tissue paper bundles.

Moreover, even if Young had walked away from the door, the fact remains that Young did not discard the tissue paper bundles in a public place where anyone might discover and take possession of the property. Rather, Young placed the tissue paper bundles in a location that would conceal their presence and was not readily accessible to the public-beneath the door of a locked closet.

As our supreme court recognized in Smith v. State, 510 P.2d 793, 796 n. 9 (Alaska 1973), actions taken to conceal property do not constitute abandonment of the property. Thus, in Erickson v. State, 507 P.2d 508 (Alaska 1973), the supreme court held that even though the defendant had left his suitcase hidden in a ditch, and even though the police had "abundant probable cause" to believe that the suitcase contained marijuana, the police could not open the suitcase without a warrant. Id. at 512.

A similar holding is found in People v. Kelly, 172 A.D.2d 458, 568 NY.S.2d 804 (1991). In Kelly, the defendant placed a brown paper bag inside a lobby wall opening-a receptacle for a yet-to-be-installed buzzer system, covered by a metal flap-and then walked back to sit on the building stoop. The court held that the defendant's conduct did not constitute abandonment of the bag.

In Young's case, his placement of the tissue paper bundles beneath the door indicates an intent to conceal them rather than abandon them.

We do not believe that this result is affected by the fact that when Officer Paiz asked Young to tell him what he had placed under the door, Young denied placing anything under the door. This statement was not an express denial of ownerships. Moreover, Young's denial flowed directly from his unlawful seizure.

Here is where it makes a difference whether Officer Paiz had reasonable suspicion to justify his detention and handcuffing of Young. As we noted earlier, a finding of abandonment may arise when a defendant disclaims ownership of the property in response to police questioning. However, the disclaimer of ownership must arise from lawful police questioning. State v. Salit, 613 P.2d at 256.

Acts of abandonment prompted by unlawful police conduct are generally considered the tainted fruit of the illegality. See United States v. Jackson, 544 F.2d 407, 410 (9th Cir.1976) (holding that if the defendant's arrest was illegal, then his subsequent oral denial of ownership was tainted and could not be considered); Cox v. State, 586 So.2d 1321, 1322 (Fla. (holding that when the defendant's act of abandoning or dropping a package of marijuana was prompted by or was the result of an illegal stop, the purported abandonment could not be used to justify a warrantless search); State v. Belton, 441 So.2d 1195, 1199 (La.1983) ("When police officers make an investigatory stop without the legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized."); Comer v. State, 754 S.W.2d 656, 659 (Tex.App.1986) (abandonment must oceur "independent of any police misconduct").

In Young's case, the superior court found that Officer Paiz's temporary investigative

detention of Young was justified because Paiz could reasonably suspect that Young was currently engaged in criminal activity after Young falsely claimed that he had not placed anything underneath the motel door. The problem with the superior court's analysis is that Young did not make this statement until after Paiz detained and handcuffed him.

At the time that Paiz handcuffed Young, all he knew was that Young was present at a motel that had a reputation as a place where illegal drug activity occurred (both drug deals and drug usage), that Young was apparently attempting to avoid contact with the police, and that Young had apparently slipped something under the door. The superior court expressly concluded that these facts, standing alone, did not support an investigative stop.

In its brief to this Court, the State disagrees with the superior court, arguing that Officer Paiz had reasonable suspicion to justify an investigative stop, even before Young denied having placed anything under the door. The State notes that in State v. Garcia, 752 P.2d 478, 480 (Alaska App.1988), we held that drug trafficking is the kind of imminent public danger that can justify an investigative stop. And the State relies primarily on our decision in Dimascio v. Amchorage, 813 P.2d 696 (Alaska App.1991), to justify the investigative stop in Young's case.

In Dimascio, we upheld an investigative stop of a motorist who twice stopped to speak with a pedestrian in the middle of the street; each time, both the pedestrian and the motorist fled when the police approached. This activity occurred in the early morning (4:30 am.) in an area of Anchorage known for drug-trafficking. But the facts of Dimascio were much more favorable to the

State than the facts of the present case. As we explained in Dimascio,

[The facts of Dimascio's case show more than an attempt to avoid contact with the police. Dimascio and the pedestrian parted hurriedly when they first saw the officer, came back to their place of rendezvous when they thought the officer gone, and then ran away at the sight of the returning police car. This pattern of activity is more suspicious than merely leaving an area at the approach of the police. Given the other cireumstances-the lateness of the hour and the area's reputation for drug transactions-the actions of Dimascio and the pedestrian were sufficient to establish a reasonable suspicion that the two men were engaged in a eriminal transaction when they were observed by [the officer]. Because both Dimascio and the pedestrian were fleeing from the scene in different directions, "a prompt investigation [was] required ... as a matter of practical necessity." State v. GB., 769 P.2d at 456 (quoting Coleman v. State, 558 P.2d at 46).

Dimascio, 818 P.2d at 699.

Certainly, Officer Paiz could take account of Young's apparent reluctance to have contact with the police, as well as the motel's reputation as the seene of illegal drug activity and the fact that Young had apparently tried to hide something under the door. But although Paiz could reasonably conclude that Young was trying to hide something from him, we do not believe that Paiz yet had reasonable suspicion that Young was guilty of drug trafficking.

In sum, we agree with the superior court that, at the time Paiz handcuffed Young, there was no reasonable suspicion to justify an investigative detention. Hence, even if Young's denial that he had slipped anything under the door could be viewed as tantamount to a denial of ownership (which we doubt), this statement was the fruit of an illegal seizure of Young's person.

Accordingly, the superior court erred when it ruled that Young had abandoned the tissue paper bundles when he slipped them under the door.

As we noted above, the State does not attempt to justify the warrantless seizure and ensuing warrantless opening of the tissue paper bundles on any ground other than abandonment. And no other exception to the warrant requirement appears to apply to these facts.

To summarize: Young did not abandon the tissue paper bundles; rather, he attempted to conceal them. Even assuming that Officer Paiz had the authority to seize the tissue paper bundles from underneath the door, he had no authority to open them without a search warrant.

Conclusion

The superior court should have granted Young's suppression motion. The judgement of the superior court is REVERSED.

      . AS 11.71.040(a)(3)(A).

      . See Schraff v. State, 544 P.2d 834, 847 (Alaska 1975) (upholding the seizure and ensuing war-rantless search of an aluminum foil "slip" from the defendant's wallet, provided the officer was entitled to search the wallet in the first place); Newhall v. State, 843 P.2d 1254, 1259 (Alaska App.1992).

      . Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969).

      . - United States v. Matlock, 415 U.S. 164, 171-72, 94 S.Ct. 988, 993, 39 LEd.2d 242 (1974).

      . See LaFave, supra, § 2.2(a), Vol. 1, pp. 397-98.

      . See, eg., 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 (leaving the trailer behind) 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).

      . See also Ingram v. State, 703 P.2d 415, 428 (Alaska App.1985) (same).

      . Compare Young's statement with the express and often repeated denials of ownership contained in the following cases: United States v. Kendall, 655 F.2d 199, 200 (9th Cir.1981) (defendant disclaimed ownership of luggage by pointing out that the claim numbers on the luggage tag did not match the claim numbers on his ticket); United States v. Jones, 707 F.2d 1169, 1170 (10th Cir.1983) (when confronted with the satchel that he had discarded, the defendant expressly denied ownership twice); State v. Salit, 613 P.2d 245, 256 (Alaska 1980) (the defendant denied ownership of a garment bag even after the other passengers had left the terminal and there was no one else to claim it).

      . The court declared: "Officer Paiz could not have gone up [to Young] and frisked him based on what he'd seen, couldn't have cuffed him, couldn't have questioned him if Mr. Young had simply said, 'I don't want to talk to you' ".

      . Id. at 697.

      . Erickson, 507 P.2d at 512.


text:
    Samuel K. CARTER, Appellant, v. STATE of Alaska, Appellee.
    No. A-8217.
    Court of Appeals of Alaska.
    July 3, 2003.

      Michael A. Stepovich, Fairbanks, for Appellant.
    Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Samuel K. Carter was one of four occupants of a hotel room in Fairbanks. The police were interested in investigating the room because they suspected that drug activity was occurring there. The police obtained the hotel management's permission to search the room after Carter and the other occupants checked out (i.e., after they vacated the room, and before the hotel's cleaning staff began to work on the room).

However, the police decided to speed up this process. The police knew that the hotel's check-out time was one o'clock p.m., so at one o'clock they ordered Carter to gather his belongings and leave the room. In the process of gathering his belongings, Carter opened a night stand drawer,. When he did so, the police observed crack pipes and syringes in the drawer. Based on this discovery (and other evidence obtained in the ensuing investigation), Carter was convicted of fourth-degree controlled substance miscon-duet.

We conclude that the police did not have the authority to remain in Carter's hotel room, nor did they have the authority to order Carter to gather his belongings and leave the hotel room. We therefore conclude that the evidence against Carter should have been suppressed, and that his conviction must be reversed.

The evidence relating to Carter's tenancy in the hotel room and the authority granted to the police by the hotel management

On January 9, 2001, Carter and three other people occupied a room at the Fairbanks Comfort Inn; the other occupants of the room were Pamela Fain, her adult daughter Amy Fain, and Amy's minor child.

The hotel room had initially been rented on January 5th for one night. However, the rental had been extended on a day-to-day basis, up to and including the night of January 8th. The established check-out time at the Comfort Inn was one o'clock in the afternoon. Thus, the check-out time for Carter and the other cccupants of the room was one o'clock on the afternoon of January 9th.

Carter was under police surveillance on the morning of January Oth. The police were investigating a report that Carter had threatened Amy Fain with a gun, and they were also aware that Carter had a history of using narcotics.

Investigator James O'Malley, a Fairbanks police officer assigned to the Statewide Drug Enforcement Unit, decided to contact the management of the Comfort Inn to seek permission to search Carter's room. O'Mal-ley spoke to the front desk clerk, Judith Tonkovich, asking that he be allowed to search Carter's room after the occupants checked out, but before the housekeeping staff cleaned the room. Tonkovich told O'Malley that he could search the room after the occupants checked out. Tonkovich also informed O'Malley that the established check-out time was one o'clock.

O'Malley's conversation with Tonkovich took place around noon. To kill time until Carter and the other occupants checked out, O'Malley ate lunch and then he went to the Comfort Inn to renew his surveillance of the hotel and of Carter's vehicle (which was parked in back of the hotel). O'Malley's purpose was to see who came out of the hotel at check-out time, who drove away in Carter's vehicle, and what they might be carrying.

But at approximately 12:45 p.m., a new development occurred: several Alaska State Troopers arrived to take Amy Fain into custody on a citizen's arrest complaint. O'Mal-ley and his surveillance partner decided to assist the troopers with this arrest.

The troopers and the officers entered the hotel room at about one o'clock. Following a struggle, Amy Fain was arrested and the troopers removed her from the hotel room. But Officer O'Malley and his partner decided not to leave with the troopers; instead, they remained in the hotel room.

Following Amy's arrest, Pamela Fain took Amy's child and left the room. Thus, of the original four occupants, only Carter remained.

According to the superior court's later findings of fact, it was now slightly past one o'clock. O'Malley ordered Carter to gather his belongings and leave the room. O'Malley later testified that he believed he had the authority to order Carter to leave because (a) the room was not rented in Carter's name, (b) no one had paid for another night, and (c) it was now past the hotel's check-out time of one o'clock.

While Carter was gathering his belongings, he opened a night stand. Inside the night stand drawer, O'Malley and his partner observed crack pipes and syringes in the night stand. This discovery led to the charge in the present case.

The superior court's ruling that the police lawfully discovered this evidence under the "plain view" doctrine, and (alternatively) because Carter had no expectation of privacy in the room after one o'clock

Following his indictment, Carter asked the superior court to suppress the evidence against him. He argued that the police had had no right to order him to gather his belongings and leave the room, and thus their observation of the crack pipes and syringes in the night stand drawer was the fruit of a Fourth Amendment violation.

Superior Court Judge Mary E. Greene denied Carter's suppression motion because she concluded that the discovery of the crack pipes and syringes had resulted from a "plain view" observation. But the judge's decision actually contains two alternative rationales for the seizure of the crack pipes and syringes.

First, Judge Greene found that the police officers lawfully observed this contraband when, after they ordered Carter to leave the room (so that they could begin searching it), Carter opened the night stand drawer. Thus, the contraband was in "plain view". To justify a seizure of evidence under the plain view doctrine, the police must make their observation from a place where they are entitled to be. Judge Greene found that the officers were authorized to remain in Carter's room, and to order Carter to vacate the room, because the management of the hotel had consented to have the officers enter and search the room.

Judge Greene acknowledged that the police "[had] not [been] requested by the Comfort Inn to eviet Mr. Carter". But she then offered an alternative rationale for the seizure of the crack pipes and syringes. She ruled that Carter had no right to occupy the room after one o'clock-ie, that Carter's expectation of privacy in the room expired at one o'clock-because (1) one o'clock was the Comfort Inn's established check-out time and (2) Carter had done nothing at that point to extend his occupancy of the hotel room (by, for example, informing the hotel management that he intended to stay for another night). She concluded that, because Carter had no expectation of privacy in the room after one o'clock, he could not complain that the officers forced him to gather his belongings and leave the room.

A hotel guest's expectation of privacy in a hotel room

The superior court's decision rests on two foundations, one factual and the other legal. The legal foundation of the superior court's decision is the court's ruling that, if check-out time passes without action on the part of a hotel guest to renew their tenancy, the hotel guest loses all expectation of privacy in their hotel room. This is not correct. The correct rule, as explained by our supreme court in Sumdum v. State, 612 P.2d 1018 (Alaska 1980), is that, depending on the factual cireumstances and the hotel's own policies, the guest may suffer a diminution of their expectation of privacy in the room as against the hotel management.

In Sumdum, the defendant was staying in a hotel room that was registered in someone else's name. The police were interested in Sumdum because he had been identified as the suspect in a theft. The police contacted the hotel management at twelve-thirty in the afternoon. The hotel's check-out time was eleven in the morning, and the desk clerk confirmed that neither the registered guest nor anyone else had paid for another night's lodging or had otherwise indicated an intent to extend their stay.

The desk clerk later testified that wheneyer hotel guests failed to contact the management within an hour or so after the eleven o'clock check-out time, it was the clerk's responsibility to ascertain (1) whether the guests had absconded without paying for the room or, if not, (2) whether the guests intended to extend their stay or (instead) vacate the room. To conduct this inquiry, the clerk would first telephone the room. If the guests did not answer the phone, the clerk would go to the room and attempt to make contact by knocking on the door. If the clerk was still unsuccessful in making contact with the guests, the clerk would then enter the room to investigate the situation.

In Sumdum's case, the desk clerk followed the hotel's standard procedure. Because it was twelve-thirty (.e, an hour and a half after the normal check-out time), she telephoned the room. After receiving no answer, she walked to the room and knocked on the door Still receiving no response, the desk clerk went back to her office, retrieved the hotel management's key to the room, and then opened the room. The police were at her side in the corridor. When the desk clerk opened the door, the police saw incriminating evidence (fruits of the theft) in plain view.

The supreme court recognized that the legality of the officers' discovery of this incriminating evidence turned on whether the officers validly obtained their view of the interior of the room. The court acknowledged that "[a] guest in a motel has a constitutionally protected right [of] privacy in [their] room"; thus, in normal circumstances, "motel personnel cannot consent to a search of the guest's room". However, the guest's expectation of privacy changes when the rental period has ended. The court explained that

after the rental period has terminated, a guest's reasonable expectations of privacy are greatly diminished with respect to the right of [the] motel management to enter [the room.

Sumdum, 612 P.2d at 1021 (emphasis added).

The supreme court concluded that, because the desk clerk entered Sumdum's room under cireumstances when she normally would have done so, and in accordance with the motel's customary procedures, her entry was lawful. The supreme court further concluded that the lawfulness of the desk clerk's entry into the room "was not altered by the presence of the police".

However, in an accompanying footnote, the supreme court clarified that the right to enter the room upon the termination of the guest's tenancy belongs to the hotel management, not the police, and that any such entry must normally conform to the practices of the hotel management. The court cautioned that, in future cases, "[if the police presence results in actions that would not normally have occurred within the time frame in question, [wel will look carefully at the cream-stances to determine whether [the alleged] independent private purposes [for the entry] are merely a sham for warrantless police searches".

This insistence on honoring the standard practices of the hotel is simply another facet of the rule that the supreme court stated earlier in its opinion: a guest who fails to meet the check-out deadline set by the hotel does not lose all expectation of privacy in the room; rather, the guest suffers a diminution

of their expectation of privacy with respect to the right of the hotel management to enter the room.

This same rule is consistently followed by the federal courts that have addressed this issue. Although these courts sometimes phrase the rule in terms of the guest losing all expectation of privacy after check-out time expires without renewal of the tenancy, these federal cases uniformly involve entries by hotel management or entries by police officers at the express authorization of hotel management. That is, non-renewal of the tenancy does not subject hotel guests to war-rantless entries and searches by the police; rather, depending on the cireumstances, non-renewal may subject guests to entries and searches by hotel management.

As the Sumdum decision suggests, the extent to which a hotel guest's expectation of privacy is diminished will vary according to the particular cireumstances of the case and the customary practices of the hotel. The Fourth Circuit expressly acknowledged this same rule in United States v. Kitchens, 114 F.3d 29, 82 (dth Cir.1997): "[a motel] guest may still have a legitimate expectation of privacy even after his rental period has terminated, if there is a pattern or practice which would make that expectation reasonable".

Professor Wayne R. LaFave discusses this feature of Fourth Amendment law in his treatise on the law of search and seizure. Professor LaFave agrees that when a guest misses the botel's check-out deadline, the guest's rights-ie., the extent of the guest's continued expectation of privacy in the room-will depend, in large measure, on the hotel management's customary practices and the cireumstances of the tenant's relationship with the hotel management. Thus, "no abandonment [of the premises] will be deemed to have occurred[,] even after the initially indicated term of [occupancy has expired, if, for example,] the tenant had arranged for eredit card payment of all charges and both the motel [management] and the tenant treated the tenant's non-departure as extending the term [of occupaney]" Wayne R. LaFave, Search and Seizure A Treatise on the Fourth Amendment (Brd ed.1996), § 2.3(a), Vol. 1, p. 471.

Professor LaFave's statement of the law is borne out by the cases. For example, in United States v. Owens, 782 F.2d 146, 150 (10th Cir.1986), and in United States v. Watson, 783 F.Supp. 258, 2683 (E.D.Va.1992), the courts held that hotel guests retained a legitimate expectation of privacy in their rooms even though the established check-out time had elapsed because the hotel management had acquiesced in the guests' pattern of paying their bills after the check-out time. -

Thus, under our supreme court's decision in Sumdum and the corroborating authorities discussed above, Carter's expectation of privacy in the hotel room did not come to an abrupt end at one o'clock in the afternoon. In particular, Carter continued to have a right of privacy vis-a-vis the police. If the police had any authority to remain in Carter's room and order him to vacate the room, that authority had to be derived from the express consent of the hotel management.

Because the one o'clock check-out time had passed, Carter's expectation of privacy vis-a-vis the hotel management was conceivably diminished. But, as the supreme court held in Sumdum, the extent of that diminution hinged on the customary practices of the Comfort Inn .and Carter's interaction with the hotel management.

We now examine the evidence on these issues.

Carter's expectation of privacy as against the management of the Comfort Inn, and the scope of the permission given to the police by the management of the Comfort Inn

At the suppression hearing, Comfort Inn desk clerk Judith Tonkovich described the Comfort Inn's customary practices regarding its one o'clock check-out time, and she also testified to her conversations with Carter about his continued tenancy as a hotel guest.

Tonkovich told the superior court that, even though the Comfort Inn's established check-out time is one o'clock, the hotel's guests often remain away from their rooms past that time, not realizing that the scheduled check-out is one o'clock. For this reason, especially if the hotel is scheduled to be full that night, the hotel management will call guests to remind them of the check-out time, and to ask if they intend to check out on time or if they are planning to extend their stay.

Tonkovich also told the superior court that it was not uncommon for hotel guests to contact the desk clerk after one o'clock and indicate that they wished to stay at the hotel for another night. The hotel apparently acquiesced in this practice. In particular, Ton-kovich expressly declared that she had not authorized Officer O'Malley and his partner to foree Carter to vacate the room at one o'clock.

Tonkovich conceded that O'Malley contacted her and asked her when the occupants of Carter's room were due to leave. In answer to O'Malley's question, Tonkovich told him that the occupants of the room were due out at one o'clock-but she also told him that she did not know their plans. Tonkoviech told O'Mailey that she "[would] call and see if they [were] staying over, or whatever".

Tonkovich did in fact call the room. She spoke to a man who identified himself as "Sam"-i.e., apparently Carter. When Ton-kovich asked "Sam" whether the occupants of the room would be checking out that day, he told her that "they would let [her] know'". Tonkovich relayed this information to her supervisor, the hotel manager. She told the manager that she had not heard a definite answer from the occupants of the room, and that "they might be staying over". -

Based on this testimony (which was undisputed), it was not the Comfort Inn's customary practice to immediately assert its right of possession against guests who missed the one o'clock check-out time. To the contrary: Tonkovich's testimony suggests that the Comfort Inn routinely granted guests a certain amount of leeway when the check-out time was missed.

Moreover, leaving aside the Comfort Inn's general approach to the one o'clock check-out time, Tonkovieh's conversation with Carter showed that she specifically granted leeway to the occupants of Carter's room. When Carter told Tonkovich that he and his friends would let her know later whether they intended to extend their stay at the hotel, Tonkovich did not object to his answer, nor did she set a deadline for Carter's decision.

In sum, based both on the customary practices of the Comfort Inn and on Carter's own conversation with Tonkovich (a representative of the hotel management), Carter continued to have a reasonable expectation of privacy in the hotel room after one o'clock.

Because Carter retained a reasonable expectation of privacy in the room, the police had no authority to remain in Carter's hotel room after the arrest of Amy Fain that brought them there, and they had no authority to force Carter to gather his belongings and vacate the room. This would have been true even if Tonkovich had purported to authorize the officers' actions. But, as the evidence shows, she did not authorize the officers' actions.

As already noted, Tonkovich expressly testified that she did not authorize the officers to evict Carter from the hotel room at one o'clock. And Tonkovieh's testimony on this point is consistent with Officer O'Mal-ley's testimony. O'Malley did not assert that Tonkovich authorized him to foree Carter from the room at one o'clock. Rather, O'Malley testified that when he contacted Tonkovich, he asked her for permission to search Carter's hotel room after the occupants checked out-that is, after the hotel management had regained its right of possession, and before the cleaning staff went to work on the room.

When Judge Greene denied Carter's suppression motion, she found that the management of the Comfort Inn consented to have the police officers "search [Carter's room] after the guests were no longer entitled to be there"-by which the judge meant that the hotel management authorized the police to search the room at one o'clock if no one had explicitly arranged for another day's tenancy. This finding is clearly erroneous.

The evidence shows that Tonkoviech authorized the police to search the hotel room after Carter and the other guests checked out-ie., after they voluntarily vacated the room. - Tonkovieh did not authorize the police to eviet Carter from the room at one o'clock, nor did she authorize the police to search the room at the stroke of one if the occupants of the room failed to expressly arrange for an extension of their tenancy.

Judge Greene further found that Carter "did not have to open anything; he did not have to pack up anything"-apparently suggesting that when the police officers saw the crack pipes and the syringes in the night stand drawer, this was because Carter voluntarily displayed or gathered up these items in a manner that allowed them to be seen by the officers. Again, this finding is clearly erroneous.

After the state troopers completed their arrest of Amy Fain, O'Malley and his partner remained unlawfally in Carter's hotel room, and they unlawfully ordered Carter to gather his possessions and vacate the room. Because of the officers' illegal order, Carter was faced with the choice of either (1) leaving his possessions behind while the officers prepared to unlawfully search his room or, alternatively, (2) gathering up his possessions under the serutiny of the officers-a scrutiny that was not legally authorized, since the officers were entitled neither to remain in Carter's room nor to order him to leave.

Under these cireumstances, Carter did not voluntarily expose his possessions to the officers' serutiny. The officers' observation of the crack pipes and syringes was the fruit of their unlawful presence in the room and their unlawful demand that Carter vacate the room. The superior court should have granted Carter's motion to suppress this evidence and its fruits.

Conclusion

To sum up: As a factual matter, the hotel management did not give the police the authority to enter Carter's room and remove him from the premises at one o'clock,. Moreover, even if the hotel management had purported to consent to these police actions, the hotel management would have exceeded its own authority-because, based on the hotel's customary practices regarding check-out, and based on Carter's earlier conversation with the desk clerk, Carter retained a reasonable expectation of privacy in the room even after one o'clock.

It is true that the officers had independent authority to enter the room to assist the state troopers in arresting Amy Fain. But onee this task was completed, the police had no authority to remain in the room, and they had no authority to order Carter to gather his belongings and vacate the room.

Thus, the police officers' observation of the crack pipes and syringes can not be justified under the doctrine of plain view. Rather, the officers' observation of this contraband was the fruit of their illegal actions.

The judgement of the superior court is REVERSED.

      . AS 11.71.040(a).

      . - Sumdum, 612 P.2d at 1020. 2

      . Id. at 1021, 1022 n. 6. 3

      . Id. at 1020. 4

      . Id.

      . Id.

      . Id. at 1021.

      . Id.

      . Id.

      . Id. at 1022 n. 7 (emphasis added).

      . See United States v. Kitchens, 114 F.3d 29, 30, 31-32 (4th Cir.1997) (upholding the right of the manager to authorize the police to enter a motel room when more than an hour had passed since the established check-out time and the guests had not extended their tenancy); United States v. Allen, 106 F.3d 695, 697, 699 (6th Cir.1997) (upholding the right of the manager to enter a motel room under similar circumstances); United States v. Huffhines, 967 F.2d 314, 316, 318 (9th Cir.1992) (holding that a guest has no reasonable expectation of privacy in their room against motel management after the rental period has expired); United States v. Rahme, 813 F.2d 31, 33, 35 (2nd Cir.1987) (same); United States v. Larson, 760 F.2d 852, 854, 855 (8th Cir.1985) (same); United States v. Parizo, 514 F.2d 52, 54 (2nd Cir.1975) (upholding the right of the manager to enter a motel room when the defendant rented the room for a single night, paid only for one night, and never informed the management that he wished to stay longer).

      . A finding is "clearly erroneous" if it "leaves the [reviewing court] with a definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding". Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981).