FL1: No REP in bloody clothes of shooting victim who came to ER: they were in plain view

Defendant was shot, and he showed up at an emergency room claiming he was the victim of a robbery. His bloody clothes were removed from him and bagged and on the floor. A police officer noticed the clothes and considered them evidence of his robbery, so he took them. The seizure of the bloody clothes was reasonable because they were in plain view and there was probable cause. Defendant was convicted of murder. Purifoy v. State, 2017 Fla. App. LEXIS 7626 (Fla. 1st DCA May 25, 2017):

“A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” Jones, 648, So. 2d at 675 (quoting United States v. Jacobsen, 466 U.S. 109, 112 (1984)). Although Jones involved a private hospital room, which is different than the hospital space implicated in this case, the guiding principle for seizures still stands that “to challenge a seizure, the defendant only need to establish that the seizure interfered with his or her constitutionally protected possessory interest. The infringement of privacy rights, while often a precursor to a seizure of property, is not necessary to such a challenge.” Id. (emphasis added). The supreme court explained that “there clearly was a meaningful interference with his constitutionally protected possessory rights when [Jones’] effects were seized without a warrant.” Id. “Jones never gave up his possessory rights in his belongings prior to their seizure. Moreover, Jones’ clothing was returned to his immediate possession and control when it was placed in his room.” Id. The court further explained that “[b]ecause Jones never voluntarily abandoned either his clothing or other effects, he had no reason to believe that his belongings would be turned over to police without his authorization. Even though hospital staff generally has joint access to and control of personal effects kept in a patient’s room, the staff cannot consent to the search or seizure of the effects because it has no right to mutual use of a patient’s belongings, as required.” Id. (citations omitted).

Here, even assuming that Purifoy did not have a reasonable expectation of privacy in the emergency room bay generally, which Jones explains is not necessary to such a challenge, he never gave up his possessory rights to his clothing prior to their seizure. The bag of clothing stayed at the foot of his stretcher, and he did not abandon it or otherwise give permission for it to be taken; he did not lose his possessory interest in his clothing simply because the clothing was in a public place. For example, when a person is in an airport, she does not lose possessory interest in luggage or a purse just because she is in a public place. This situation is different from that in Buchanan because Purifoy wasn’t hiding his clothing in the bag, like Buchanan was hiding drugs under the hospital mattress. And clothing, by its very nature, is not contraband like drugs in which there is never a right to privacy. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 311 (1967) (“The seizure of contraband has been justified on the ground that the suspect has not even a bare possessory right to contraband.”). Accordingly, Purifoy correctly argues that law enforcement meaningfully interfered with his constitutionally protected possessory rights of his clothing without a warrant.

But the State argues that the seizure of property in open view is presumptively reasonable if there is “probable cause to associate the property with criminal activity.” Jones, 648 So. 2d at 676. (citing Payton v. New York, 445 U.S 573, 587 (1980)). The State claims that probable cause existed to associate the clothing with criminal activity because Purifoy arrived at the hospital with gunshot wounds shortly after the victim indicated in his 9-1-1 call that he may have shot the intruder, was wearing clothing with “blood on it and bullet holes,” and alleged “he was involved in a crime, albeit as a victim.”

This is sufficient. Purifoy was a self-described victim of a crime, evidence of which officers observed as hospital staff removed Purifoy’s bloody clothes prior to surgery. When the totality of the circumstances are considered, the bloody clothes are easily seen as direct evidence of a crime. That is so even if we put aside the inconsistencies about whether the clothing had bullet holes and whether the officer knew about the correlated timing of the victim’s 9-1-1 call and Purifoy’s arrival to the emergency room. Under the open view doctrine, the seizure of the bag of clothing was justified because, even though there was a meaningful interference with Purifoy’s possessory right, there was probable cause to associate the bloody clothes with criminal activity. See Illinois v. Gates, 462 U.S. 213, 235 (1983) (“[O]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”). Law enforcement officers may not simply seize property from a person in a public place absent a showing—of the type made here—that probable cause exists that associates the property with a crime. Having determined that the open view doctrine applies, we need not address the plain view doctrine. Even if the seizure of his clothing from the hospital violated his Fourth Amendment rights, we view the error as harmless beyond a reasonable doubt given the other testimony and evidence adduced at trial. See, e.g., Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011) (applying harmless error analysis in Fourth Amendment context).

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