No waiver of expectation of privacy in lost wallet; third search of wallet was unreasonable

Search of lost wallet for criminal evidence after having already obtained defendant’s name and address from it was unreasonable. The defendant did not waive an expectation of privacy in his wallet by losing it. Wolf v. State, 291 Ga. App. 876, 663 S.E.2d 292 (2008):

1. The trial court reasoned that, because Wolf lost his wallet, he lost all expectation of privacy therein. This reasoning is erroneous. Wolf’s wallet was lost, not abandoned. Although “it is settled law that one has no standing to complain of a search or seizure of property he has voluntarily abandoned,” the question of whether a defendant has abandoned an item of personal property hinges upon his intent, that is, “whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” It is also true that “what a person knowingly exposes to the public … is not a subject of Fourth Amendment protection.”

In the case before us, however, there is no evidence that the loss of Wolf’s wallet was either voluntary or knowing, or that it was anything other than inadvertent. Wolf claimed ownership of the wallet when the officer showed it to him at the concert, and thus he evidenced his continued expectation of privacy in an item that, like a briefcase, suitcase, or other closed container, is “traditionally a repository for items of a private nature.” Such “items of a private nature” (Wolf’s driver’s license, automobile insurance card, and money, as well as the contraband) were present in the wallet when it was found, and there is no reason to think that Wolf voluntarily discarded or abandoned these items.

. . .

Under the facts of this case, the inevitable discovery doctrine does not apply. Moore testified that, as soon as he found the wallet and determined that Wolf’s license was inside, he and the security officers at the concert “began to look through the crowd to see if [they] could recognize Wolf.” No effort was made to turn in the wallet at the station at that time. Further, the officers learned that Wolf was present at the concert because they located his parked car there. Shortly after locating his car, they found Wolf himself, making an inventory of the wallet’s contents unnecessary. Thus, the evidence was too speculative to support a finding that the contraband would have been inevitably discovered.

. . .

“The indirect fruits of an illegal search or arrest should be suppressed when they bear a significantly close relationship to the underlying illegality.” Wolf’s arrest, and the search of his person which revealed the hollow pen, resulted from the impermissible intrusion into his lost wallet. It follows that the pen must also be suppressed as “fruit of the poisonous tree.” (footnotes omitted)