¶1specially concurring.
¶2I concur in the decision affirming the judgment of the district court in this instance. It is quite clear to me that Marquez simply had no reasonable expectation of privacy in the work boots that were taken from him at the time of his incarceration. See, e.g., United States v. Thompson, 837 F.2d 673 (5th Cir.1988); United States v. Grill, 484 F.2d 990 (5th Cir.1973), cert. denied 416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767 (1974). Cf., United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). I perceive the circumstances as being distinguishable from MacLaird v. State, Wyo., 718 P.2d 41 (1986), because the evidence in that case was seized pursuant to a lawful search of a vehicle. In Marquez’ instance, the boots were taken from him when he was incarcerated in the county jail and were not the product of a search as such. Nevertheless, nothing occurred to inhibit their use in evidence. Probable cause to seize the boots was present when they were removed from storage to make the comparison of them with the marks on the wall. This factor serves to distinguish Ortega v. State, Wyo., 669 P.2d 935 (1983).
¶3Perhaps, my concern is ultra cautious, but I am convinced that law enforcement officers and prosecutors should not casually rely upon the result in this case. A caveat is in order. I am satisfied that, with respect to property that a prisoner is not permitted to take to the confinement area and therefore must be stored, the jailer is only a bailee. Cf., Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Brooks v. Dutton, 751 F.2d 197 (6th Cir.1985); 72 C.J.S. Prisons § 75 (1987). This appropriately would be classified as a gratuitous bailment for the sole benefit of the bailor. Nevertheless, title to the property would be in the prisoner. See Knight v. Beckwith Commercial Co., 6 Wyo. 500, 46 P. 1094 (1896). In the absence of some legal process designed to preserve the right of possession, I do not believe the law enforcement officers could refuse to deliver the property to anyone if the prisoner had authorized that person to take it. That would not be true with respect to property that had been seized pursuant to a warrant.
¶4Law enforcement authorities have only a possessory interest in property that is stored because the owner is in custody. That possessory interest must yield to a demand from the owner. If the owner directed that possession be transferred to a third party, the law enforcement officials would have to honor that request. On the other hand, seizure of the property as evidence pursuant to a warrant invests the state with a special property interest, which justifies a refusal of the demand of the owner to transfer possession to a third party.
¶5Using this case as an example, even though I find no error in the utilization of Marquez’ boots by the law enforcement officers for purposes of comparing them with the marks at the scene of the crime, and their later use in evidence, I question whether they would have been available as evidence if Marquez had directed the authorities in charge of the jail to deliver the boots to his attorney. I can see no defense to a replevin action if the sheriff’s office had refused. Succinctly, I suggest that prosecuting attorneys should always obtain a warrant and seize property of prisoners that they propose to use as evidence, even though it is already in the custody of the law enforcement officers because of the prisoner’s incarceration. It seems to me this is a relatively simple and easy way to avoid what otherwise might be a very troublesome controversy.