People v. Salaz

Justice SCOTT

delivered the Opinion of the Court.

This interlocutory appeal¹ requires us to decide whether jailers may conduct a second search of an inmate’s clothes without a warrant when they learn that an initial inventory search may have failed to uncover contraband hidden in the clothing. We hold that a warrantless. search under these circumstances is reasonable and reverse the order of the trial court.

I.

For our statement of the facts, we rely upon the reporter’s transcript of the suppression hearings held August 13 and September 25, 1997, as well as the trial court’s ruling and minute orders.

Shortly after 4:00 a.m. on March 8, 1997, Eugene Selso Salaz was arrested when Du-rango police discovered a small amount of cocaine in his car during an investigatory stop.² After his arrest, Salaz was transported to the Durango Police Department, where he was interviewed. Salaz then was taken to the La Plata County Jail.

At the jail, Salaz and his belongings, including the shoes and the clothes he was wearing at the time of his arrest, were searched pursuant to the jail’s written rules and regulations, including inventory procedures. According to these standardized procedures,³ Salaz was subjected to a search of his person, including a body cavity search. All of his belongings were taken from him and his shoes and other clothes were searched for weapons and contraband, including drugs. Afterwards, he was given jail clothes and required to redress. During the search, all of Salaz’s property was inventoried and a computerized record of the inventory was created. He was then required to sign a form indicating that the inventory record was accurate.

Salaz’s belongings, including his clothing, were placed in one of more than fifty unlocked lockers used for keeping inmate property, located in a secure property room. The jail’s property room is not accessible to inmates, but limited access is available to jail employees, detention specialists, and deputies.

Later the same day, another inmate told a jailer that Salaz had said he had hidden drugs in his shoes, and that these drugs apparently had not been discovered during the inventory search.⁴ Based on this tip, the jailer went to the property room and searched Salaz’s shoes, where he found the cocaine which was later suppressed by the trial court’s order, and which is the subject of this appeal. The county sheriffs office began its own investigation of the cocaine seized from Salaz’s shoes. An investigator interviewed Salaz about the drugs found in his shoes, and Salaz made certain incriminating statements.

At the suppression hearing, a jail supervisor testified as to the jail’s written standardized booking procedures, including the requirement that upon release through the “booking-out process” an inmate is given all of his property and is required to dress in his or her street clothes. After dressing, former inmates must sign a form indicating that the property inventoried upon arrival has been returned.

Both the cocaine and the statements were suppressed by the trial court on the theory that they represented the fruit of an illegal warrantless search of Salaz’s belongings. The issue before us is whether the Fourth Amendment prohibits the state from using the evidence obtained as a result of the second search which was based on the inmate tip and conducted without a warrant.⁵

II.

In Hudson v. People, 196 Colo. 211, 585 P.2d 580 (1978), under facts quite similar to this case, we held that a warrant was not required to conduct a second search of an inmate’s clothing where the inmate had told a fellow prisoner that jailers had failed to find drugs hidden in the clothing during an initial inventory search. We noted that the room where the clothing was kept could not be locked and acknowledged that the jailer’s concern and motivation was “that of preserving order and security in places of incarceration.” Id. at 212, 585 P.2d at 581-82. We held, “where jail conditions were such that there was a real possibility that someone could gain access ... to drugs, there was a sufficiently immediate threat to jail order and security to justify a warrantless search.” Id. at 214-15, 585 P.2d at 582. We are now obliged to analyze whether the factual distinction presented in this case — the greater security of the property room — requires a different result than Hudson. Because we find no distinction of legal significance, we see no reason to reach a different conclusion here.

A.

The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const, amend. IV. “The basic purpose of [the Fourth] Amendment ... is to safeguard the privacy and security of individuals against arbitrary invasion by government officials.” Camara v. Municipal Court, 387 U.S. 528, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). This protection, however, applies only in contexts where the citizen in question has a reasonable expectation of privacy in the place or things to be searched. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); People v. Blehm, 44 Colo.App. 472, 475-76, 623 P.2d 411, 414 (1980). Indeed, the “touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991); see also Ohio v. Robinette, — U.S. -, -, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (.1996).

In the absence of a reasonable expectation of privacy, law enforcement officials are free to conduct a warrantless search notwithstanding whether the search is also justified by exigent circumstances or some other exception to the warrant requirement of the Fourth Amendment and the Colorado Constitution. In other words, a reasonable expectation of privacy is the sine qua non of a challenge to the validity of a search and seizure. See Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989).

The United States Supreme Court has recognized that prisoners have little, if any, reasonable expectation of privacy while incarcerated. See Hudson v. Palmer, 468 U.S. 517, 526-28, 104 S.Ct. 3194, 3200-01, 82 L.Ed.2d 393 (1984); see also United States v. Edwards, 415 U.S. 800, 804-05, 94 S.Ct. 1234, 1237-38, 39 L.Ed.2d 771 (1974) (upholding search of suspect in custody as reasonable). This principle was applied recently in United States v. McVeigh, 940 F.Supp. 1541, 1556-57 (D.Colo.1996), where a federal district court approved the actions of the Federal Bureau of Investigation in sending a prisoner’s clothing to a forensic laboratory for a chemical analysis without obtaining a search warrant. Accord Right v. State, 512 So.2d 922, 927 (Fla.1987).

B.

Under the particular facts of this ease, we hold that Salaz had no reasonable expectation of privacy in his clothing. Consequently, the second warrantless search of Salaz’s clothing did not violate the Fourth Amendment. As our cases have noted, “[a] prison cell is not a place in which the occupant can expect to be free from all searches unless accompanied by a warrant. Constant surveillance is the order of the day....” Moore v. People, 171 Colo. 338, 342-43, 467 P.2d 50, 52 (1970). “Searches conducted by officials entrusted with the orderly operation of the ... [correctional institutions] of this state are not unreasonable so long as they are not conducted for the purpose of harassing or humiliating the inmate or in a cruel or unusual manner.” Id. at 342, 467 P.2d at 52 (citation omitted); see also Blehm, 623 P.2d at 414.

The validity of a search of an inmate’s clothing in a jail or other correctional facility can be upheld without regard to whether the inmate subjected to the search has been convicted or is in custody for some other reason. See Hudson v. People, 196 Colo. 211, 214, 585 P.2d 580, 581-82 (1978) (rejecting distinction between searches of convicts and suspects); Blehm, 623 P.2d at 414 (same); accord State v. Apelt, 176 Am. 349, 861 P.2d 634, 649 (1993) (applying Hudson v. Palmer to search of cell of defendant detained while awaiting trial).

This lower protection accorded to an inmate’s clothing stems from the fact that correctional facilities are “fraught with security dangers.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979); see also Hudson v. Palmer, 468 U.S. at 527-28, 104 S.Ct. at 3200-01; Blehm, 623 P.2d at 414. The need for preservation of internal order and discipline as a general matter — not to mention the specific and direct threats to security posed by the availability of drugs or weapons — weigh heavily against recognition of any expectation of privacy in this case.⁶ Because we conclude that Salaz had no expectation of privacy in his clothing while it was in the custody of jailers, we need not explore whether a warrantless search of a prisoner’s property violates a reasonable expectation of privacy — diminished or otherwise — under other circumstances.

III.

We hold, then, that jailers are not required to obtain a warrant to conduct a second search of an inmate’s clothing which has been inventoried and continues to be held in the jail’s custody for safekeeping. Accord Kight, 512 So.2d at 927. Accordingly, the ruling of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

MARTINEZ, J., dissents. BENDER, J., does not participate.

1 . We accept jurisdiction over this appeal pursuant to section 16-12-102(2) and C.A.R. 4.1. Under these provisions^ the People may file an interlocutory appeal in this court from a ruling of a trial court granting a motion made in advance of trial by the defendant to suppress evidence provided that such appeal is not taken for purposes of delay.

2 . The trial court's rulings with regard to the legality of the stop, arrest, and vehicle search are not before us.

3 . While the exact date and time that Salaz was processed into the La Plata County Jail is unclear, for purposes of this proceeding we conclude from the record that he was stopped by the arresting officers at "a little bit after 4:00 a.m. on March 8” and was taken to the jail shortly thereafter.

4 . The record does not indicate when the jailer received the tip; however, unrefuted evidence indicates it occurred within a few hours of Sa-laz’s booking.

5 . As framed by the People, the issues are:

1. Does a person who is in detention at a County Facility for investigation of a felony offense have an expectation of privacy in clothing and personal effects which he wore at the time of his arrest while those items are being kept at such a facility?

2. If so, does this expectation of privacy require the issuance of a search warrant or other legal process before searching such clothing and personal effects when police have information amounting to probable cause that there is contraband hidden therein.

3. What quantum of evidence by jail personnel that contraband is contained in a prisoner’s personal effects will, if at all, justify a warrantless intrusion?

6 . Some cases have held that jail and prison officials may create a reasonable expectation of privacy through a course of conduct that leads a prisoner or visitor to believe that their privacy will be respected. See, e.g., People v. Harfmann, 38 Colo.App. 19, 555 P.2d 187 (1976) (officials created expectation of privacy by leaving prisoner and attorney alone in apparently secure room). We intímate no view on what conduct might give rise to such an expectation.

Likewise, we need not explore the other potential limitations on Ae power of jailers to conduct warrantless searches, alAough we note that searches undertaken solely for the purpose of harassment would not be permissible. See Hudson v. Palmer, 468 U.S. at 530, 104 S.Ct. at 3202.