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State v. Celusniak4/15/2004
me circumstances requires leaving the property "in a manner manifesting an intent never to reclaim [it].").
We also note that the officer did not ask Defendant or the driver whether the purse belonged to either female prior to searching it. By not asking anyone about the ownership of the purse prior to the search, the officer did not afford Defendant the opportunity to disclaim the purse or otherwise indicate abandonment. As we discussed in more detail above in the section on consent, we believe that in cases where the issue of ownership of an item to be searched is in question and the police can easily verify ownership without risk to their safety or the integrity of the search, police officers should be required to inquire into ownership before assuming abandonment. In addition, when Defendant claimed ownership of the purse, it did not appear that she knew that the officer had already searched the purse, as she was in front of the car and he was seated in the back seat. This indicates that while Defendant's hope may have been that the officer would not find the purse at all, she did not intend to abandon it even when she knew the officer had discovered it.
We recognize that this issue is not entirely free from doubt. Compare State v. Westover, 666 A.2d 1344, 1348-49 (N.H. 1995) (majority opinion upholding that the defendant did not permanently abandon his sweatshirt when he gently tossed it on the ground before entering the convenience store and reversing the trial court's determination that the sweatshirt was "temporarily abandoned"), with id. at 1350-52 (Thayer, J., dissenting) (suggesting that the court should have found an intent to abandon the sweatshirt because it appeared that the defendant was attempting to dissociate himself from the sweatshirt to avoid police detection of the drugs in it). However, we believe that, under the circumstances of this case, a conclusion of abandonment would impermissibly expand the doctrine beyond the scope of our existing cases and would be inconsistent with commonly held notions about expectations of privacy. We hold, therefore, that the district court erred in finding that Defendant abandoned her purse. Accordingly, Defendant has standing to challenge the search. Because we have held that there was no consent, the motion to suppress should have been granted.
CONCLUSION
We hold that a conditional plea reserving the right to appeal a limited number of properly raised issues is permissible in magistrate court. We also hold that the preferred procedure for appeal to this Court after such a plea is entered is for the district court to issue a final and appealable order dismissing the appeal or to issue an order granting the motion to suppress. We reverse the district court's denial of Defendant's motion to suppress. We remand to the district court so that it may issue an order of remand to the magistrate court allowing Defendant to withdraw her conditional plea.
IT IS SO ORDERED.
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