DocketNumber: 11CR0094; A148781
Judges: Armstrong, Edmonds, Nakamoto
Filed Date: 5/14/2014
Status: Precedential
Modified Date: 11/13/2024
Defendant appeals a judgment of conviction for unlawful possession of a Schedule I controlled substance, ORS 475.840. He assigns error to the trial court’s denial of his motion to suppress evidence discovered during a war-rantless search of a closed bag that was located several feet outside of the entrance to his apartment. The state argued that the search was lawful under State v. Pidcock, 306 Or 335, 759 P2d 1092 (1988), cert den, 489 US 1011 (1989), because the police reasonably believed that the bag was lost property and conducted the search to ascertain the identity of the bag’s owner. The court agreed with the state and denied defendant’s motion. On appeal, defendant argues that Pidcock does not apply when, as here, it was not objectively reasonable for the police to conclude that the property was actually lost. The state responds that (1) defendant did not preserve that argument; (2) neither Pidcock, nor the statute interpreted in that opinion, ORS 98.005 (1973), amended by Or Laws 1989, ch 522, § 1, Or Laws 2013, ch 220, § 1, entails such a reasonableness requirement; and (3), in any event, it was reasonable in this case to conclude that the bag was lost property. Assuming arguendo that ORS 98.005
We limit our review to the facts available to the trial court when it decided the motion. State v. Mazzola, 238 Or App 201, 203, 242 P3d 674 (2010). The relevant facts are not in dispute. Officer Oiler and Sergeant Giovannetti of the Gold Beach Police Department went to defendant’s
A raised walkway abuts the ground floor. The walkway is approximately 10 feet wide and 20 feet long. All tenants have access to the walkway. The walkway may be accessed from the street — there is no locked gate to prohibit the general public from entering; however, there can be parked cars that would-be entrants must walk around to reach the walkway.
Upon arriving, Oiler and Giovannetti knocked on defendant’s door and the window adjacent to his door for a period of no more than two minutes. Oiler then noticed a closed black bag lying on the walkway near a small table, from “[approximately three” to “[a]t most five feet” away from defendant’s front door. Oiler testified that the bag was “ [m] aybe 75 feet” away from the street, on private property, and that a person walking down the street could not have seen the bag.
There was nothing on the bag’s exterior to indicate the owner’s identity. Oiler believed that the there may have been valuables in the bag because “ [t]hose bags usually have video equipment or cameras inside of them.” Giovannetti also thought that the bag looked like “some sort of camera bag.” Later, at defendant’s omnibus hearing, the state asked Giovannetti, “When you looked at [the bag], *** were you thinking this is probably [defendant’s], or were you thinking you don’t know who this belongs to?” Giovannetti responded, “I honestly didn’t know who it belonged to.” Giovannetti then stated that the bag appeared to him to be lost property.
After noticing the bag, Oiler “collected [it] * * * for safekeeping” and then opened it to “identify the owner” and “identify what valuables were inside of it.” When he opened the bag, Oiler discovered some prescription medication bottles, marijuana, and what appeared to be psilocybin mushrooms. Defendant’s name was on the prescription bottles.
Defendant filed a motion to suppress the evidence discovered during the warrantless search of the bag on the ground that it had been obtained through a search that violated Article I, section 9, of the Oregon Constitution. The state responded that, “because, when Officer Oiler and Sergeant Giovannetti observed the bag, the bag was in a common area of an apartment complex with no one around [,]” Pidcock authorized the warrantless search of defendant’s bag as lost property. Following testimony from Oiler and Giovannetti as to the above-recited facts, defendant asserted that Pidcock did not govern because it was not reasonable to conclude that the bag was actually lost. The court then denied the motion, explaining that
“the officer had reason and was reasonable in believing that [the bag] would contain something of value. The officer had a legitimate purpose to check inside the bag to try to identify the owner of that bag * * *. He’s attempting, as a finder of lost property, to attempt to return the property, and he had reason to search it * * * — it was a lawful search of the bag in that attempt.”
On appeal, the parties renew their dispute as to whether the police reasonably concluded that the bag was lost property. The parties also disagree as to whether, as a threshold matter, such a reasonableness requirement even exists. The state argues additionally that defendant failed to preserve the latter argument. See ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *.”).
We briefly consider, and reject, the state’s preservation argument. The state maintains that defendant’s suppression argument in the trial court focused on “whether the bag was actually lost, not whether the finder’s conclusion that it was lost had to be reasonable.” According to the
We turn to the merits of defendant’s appeal. We review the ruling on the motion to suppress for legal error, although we are bound by the trial court’s findings of historical fact if there is evidence in the record to support them. State v. Vasquez-Villagomez, 346 Or 12, 23, 203 P3d 193 (2009).
Article I, section 9, protects “the right of the people to be secure in their * * * effects, against unreasonable search, or seizure [.]” “It is axiomatic that a warrantless search is unlawful unless an exception to the warrant requirement applies.” State v. Rowell, 251 Or App 463, 469, 283 P3d 454, rev den, 353 Or 127 (2012). In this case, the state argues that the search fell within an exception for determining ownership of lost property.
The facts from Pidcock are as follows. A woman and her daughter were driving home when they observed what appeared to be a pillow or pillowcase lying near the mailbox adjacent to their driveway. 306 Or at 337. They stopped to examine the pillowcase and found a black leather briefcase inside. Id. They took the briefcase home and tried to open it, to no avail. Id. The women called the sheriff to report that they had found the briefcase, noting that it was unusual in that it was quite nice and, although locked, contained something heavy inside that was sliding around. Id. The following day, a sheriffs deputy opened the case and observed a large stack of money, a handgun, a baggie that appeared to contain marijuana, and some manila envelopes, one of which was sealed. Id. at 337-38. The briefcase and its contents were taken to the sheriffs office, where the manila envelopes were opened and examined. Id. at 338. The sheriff had not obtained a warrant for the search of the briefcase or its contents. Id. at 339. No identification of the owner was found. Id. at 338. The envelopes contained cocaine and methamphetamine. Id.
“After being advised of the ‘finders-keepers law,’ ORS 98.005 et seq,” Pidcock, 306 Or at 338, the mother took certain measures, prerequisite under ORS 98.005, to lawfully acquire the money in the briefcase. (Internal quotation marks omitted.) For example, she “placed an advertisement in the [local newspaper] advertising the finding of the briefcase and how it could be obtained.” Id. The newspaper published at least two stories about the briefcase within the following week, which, under ORS 98.005, must also occur before a finder can keep lost-and-found property. Id.
The defendant was identified as the owner, arrested, and charged with unlawful possession of a controlled substance. Id. at 337-38. Before trial, the defendant moved to suppress the briefcase and its contents, relying on Article I,
The prosecutor responded that the sheriff examined the manila envelopes to determine if they contained identification. Id. The defendant disputed that that was the sheriffs motivation. Id. at 341. The trial court resolved that factual dispute in the state’s favor, finding that the sheriffs deputies opened both the briefcase and the manila envelopes inside of it in an attempt to identify the owner. Id. at 340-41. The trial court then concluded that “‘[flhere was a reasonable basis for inquiry by the party that found it, and secondly by the officers that assisted the party that found it to [search for] *** identification[,]’” and that “‘the action to open the briefcase was reasonable under the circumstances.’” Id. at 341. Accordingly, the trial court denied defendant’s motion. Id. at 337.
The Supreme Court observed that the facts demonstrated that the defendant was still actively attempting to recover the case and its contents at the time of the warrant-less search. Id. at 339. The court thus concluded that the defendant had not abandoned the briefcase when the deputies opened it, and the court instead treated the briefcase and its contents as lost property. Id.
Citing ORS 98.005, the court noted that “[flinders of lost property have a statutory duty to attempt to return the property to its owner.” Id. According to the court,
“[t]he statutes concerning lost or mislaid property, taken together, place a burden on the finder of lost property to discover the owner of the property. ORS 98.005 gives the finder a claim to the property if the owner is unknown. If the owner is known, ORS 98.005 does not apply.”
Id. at 340. The court reasoned by extrapolation that, “[w]hen the finder of the property turned it over to law enforcement officers, on the finder’s own initiative, the deputies were placed in the position of the finder.” Id. at 339.
As is evident from our recitation of the facts in Pidcock, that case addressed the particular situation of lost property that was discovered initially by someone other than the police, who then delivered the property to the police, notifying them that it was lost. Accordingly, as noted, the Supreme Court’s reasoning in Pidcock focuses on the rights and duties that accrue to law enforcement officers who are “simply assisting the finder of the property to ascertain the identity of the owner or to determine if the owner of the [property] was indeed unknown, as described in ORS 98.005.” Id.; see State v. Morton, 110 Or App 219, 222, 822 P2d 148 (1991) (describing Pidcock as holding, specifically, “that a finder of lost or abandoned property has a statutory duty *** to return it to its owner and, should that finder turn the property over to the police, they in turn are placed in the position of the finder”).
Oiler’s purpose in searching the bag is a factual question. Pidcock, 306 Or at 341; Morton, 110 Or App at 222. Here, the trial court found that Oiler searched the bag to identify the owner, not to locate contraband. There is evidence in the record to support the trial court’s finding, and it is thus binding on us. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). In any case, defendant disputes neither that finding nor Oiler’s good faith belief that the bag was lost.
Instead, defendant argues that the duties of finders of property stated in ORS 98.005, as interpreted in Pidcock, authorize police to search found property only if it is reasonable to conclude that the property is lost. The state counters that a good faith belief on the part of the finder is sufficient to bring the search within the orbit of Pidcock. The state reasons that neither ORS 98.005 nor the relevant case law “speak to the belief of the finder” or “the requirement of a reasonable belief.” The state is correct to the extent that neither ORS 98.005 nor Pidcock expressly dictate that a finder’s conclusion that property is lost must be objectively reasonable. Nevertheless, we conclude that such a requirement inheres in both ORS 98.005 and Pidcock alike.
Because the court’s reasoning in Pidcock is rooted in its interpretation of “[t]he statutes concerning lost or mislaid property, taken together,” 306 Or at 340, and ORS 98.005 specifically, we begin with an examination of those statutes’ text in context, along with any legislative history that is useful to the analysis. State v. Gaines, 346 Or 160, 166, 171-72, 206 P3d 1042 (2009). Context includes related
At the time the Supreme Court decided Pidcock, as is the case now, the rights and duties of finders and owners of money or goods were set out in three statutes in ORS chapter 98: ORS 98.005 (pertaining to rights and duties of finders of money or goods), ORS 98.015 (1973), amended by Or laws 1989, ch 522, § 2, Or Laws 2013, ch 220, § 2 (pertaining to liability of a noncomplying finder and forfeiture of money and goods to the county), and ORS 98.025 (pertaining to owners’ rights). We also consider ORS 164.065, a closely related statute referenced in ORS 98.015 that criminalizes a finder’s failure to take reasonable measures to return lost property to its owner. See State v. Bailey, 346 Or 551, 561 n 4, 213 P3d 1240 (2009) (relying on closely related statute as context); see also Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 126, 134 (Jul 1970) (commission commentary) (describing ORS 164.065 as the criminal law counterpart to the three statutes in ORS chapter 98 that pertain to the rights and duties of finders of lost goods).
Under ORS 98.005,
“(1) If any person finds money or goods * * * and if the owner of the money or goods is unknown, such person * * * shall give notice of the finding in writing to the county clerk of the county in which the money or goods was found. Within 20 days after the date of the finding, the finder of the money or goods shall cause to be published in a newspaper of general circulation in the county a notice of the finding ***. Each such notice shall state the general description of the money or goods found, the name and address of the finder and final date before which such goods may be claimed.
“(2) If no person appears and establishes ownership of the money or goods prior to [a certain date] after the date of the notice to the county clerk under subsection (1) of this section, the finder shall be the owner of the money or goods.”
(Emphasis added.)
The text of ORS 98.015 reads,
“If any person who finds money or goods *** fails to comply with ORS 98.005, the person shall be liable, upon*725 conviction for violation of ORS 164.065, to the county for the money or goods or the full value of the money or goods. The county treasurer shall hold the money or goods or their value for the owner thereof and shall publish notice of the finding of the money or goods in the manner provided in ORS 98.005. If the owner has not reclaimed such money or goods within [a certain time] after the date of the first publication of notice by the county treasurer, the owner shall forfeit the rights of the owner to the value of such money or goods and the value of such money or goods shall be placed in the general fund of the county to be used for the payment of the general operating expenses of the county.”5
The subsequent statute, ORS 98.025, reads,
“If an owner of money or goods found by another person appears and establishes a claim to such money or goods within the time period prescribed by ORS 98.005 or 98.015, whichever applies, the owner shall have restitution of such money or goods or their value upon payment of all costs and charges incurred in the finding, giving of notice, care and custody of such money or goods.”
The final statute that we consider, ORS 164.065, dictates that
“[a] person who comes into control ofproperty of another that the person knows or has good reason to know to have been lost, * * * commits theft if, with intent to deprive the owner thereof, the person fails to take reasonable measures to restore the property to the owner.”
(Emphasis added.)
*725 The wording of ORS 98.005 expressly limits application of that statute to circumstances in which “any person finds money or goods *** and *** the owner of the money or goods is unknown ***.” (Emphasis added.) That text contemplates an objective standard by which to assess whether the property is lost. The operative verbs, “to be” and “to know,”6 separately and together, connote a state of objective reality apart from and beyond the subjective
“‘knowledge’ as used in statutes and regulations often refers either to actual knowledge — a state of mind based on facts and information — or to constructive knowledge— referring to the extent to which information gives one reason to know a fact, whether or not a person has actual knowledge of the fact.”
Carlson v. Martin, 160 Or App 350, 357-58, 983 P2d 1031, rev den, 329 Or 287 (1999) (emphasis added). The emphasized reference in ORS 164.065 to a finder’s actual or constructive knowledge clarifies that, under that statute, the status of property is to be determined by objective criteria reasonably available to the finder. As noted above, 262 Or App at 725, the legislature drafted ORS 164.065 specifically to address the same class of property that ORS 98.005 through ORS
Again, we acknowledge that, as the state here asserts, the Supreme Court in Pidcock did not expressly hold that an objective test is required. However, as an initial matter, the state overlooks the significant fact that the reasonableness of the finders’ determination that the property was lost was not at issue in Pidcock. Instead, Pidcock involved, first, whether a warrantless search of lost property was constitutional, and, second, the scope of an otherwise permissible warrantless police search of lost property. 306 Or at 342. Subsequent cases similarly considered issues stemming from warrantless searches of undisputedly lost or mislaid property. See Paasch, 117 Or App at 304, 306 (considering the state’s argument that “there is no reasonable expectation of privacy in a lost wallet” as well as whether police exceeded the permissible scope of a warrantless search of the wallet); see also Morton, 110 Or App at 223 (holding that the warrantless police search of a mislaid purse turned over to police by the finder was permitted under Pidcock but that the subsequent search of a cigarette case inside the purse was not because police had already found identification in the purse by that point).
Moreover, the Supreme Court in Pidcock did appear to consider the reasonableness of the police conduct, as did the trial court in initially denying the motion to suppress. As we recounted above, the trial court in Pidcock concluded that “‘[t]here was a reasonable basis for inquiry by *** the officers that assisted the party that found it to [search
We also note that, in the related context of abandoned property, we have consistently looked to both an officer’s subjective belief as well as the objective reasonableness of that belief. In State v. Belcher, 89 Or App 401, 405, 749 P2d 591, aff'd, 306 Or 343, 759 P2d 1096 (1988), for example, we reasoned that, given “the circumstances of this case,” there was “no objective basis for the officer reasonably to think that the pack had been abandoned.”
Based on the foregoing analysis, we hold that, assuming ORS 98.005 applies to finders of property who are engaged in law enforcement, the obligation it places on finders to attempt to return found property of “unknown” owners and the rationale in Pidcock do not authorize a warrant-less police search of found property when the police who find the property have only a good faith belief that the property is lost. Instead, the trial court must also determine whether the subjective belief of the police that the property was lost is objectively reasonable under the circumstances.
Applying that principle to the facts here, we conclude that it was not objectively reasonable under the circumstances for Oiler to have concluded that defendant’s bag was lost property. “Lost property is defined as that with the possession of which the owner has involuntarily parted, through neglect, carelessness, or inadvertence. It is property which the owner has unwittingly suffered to pass out
In determining whether it was objectively reasonable to conclude that defendant’s property was lost, we consider, among other likely relevant circumstances, the nature of the property as found, the location in which it was found, the manner in which it was found, the potential or possible amount of time the property may have been separated from its owner, and the presence or absence of any other measure taken to determine ownership before searching it. Here, the officers’ testimony, as summarized above, established that defendant’s bag was located on private property, between approximately three to, at most, five feet away from the door to defendant’s residence. According to Oiler, the bag was approximately 75 feet away from the street and would not have been visible to a person walking down the street. Oiler began searching the bag after he and Giovannetti had arrived and observed the bag for no more than two minutes, despite the bag’s proximity to the apartment door, and without first attempting to determine if any of the residents from the few nearby units in the building could identify the bag’s owner. We conclude that, under those circumstances, it was not objectively reasonable for Oiler to conclude that defendant had involuntarily parted with his bag or that he had no knowledge of its whereabouts at the time that Oiler searched it. Because the warrantless search of the bag was not justified as a search of lost property, the trial court erred by denying defendant’s motion to suppress the evidence obtained as a result of the search.
Reversed and remanded.
The amendments to ORS 98.005 (1973) are minor and do not bear on this appeal. In the remainder of this opinion, all references to that statute are to either the version existing at the time the Supreme Court issued Pidcock, or to the version existing at the time of defendant’s trial in the instant appeal. Our holding regarding that statute applies equally to both those versions, as well as the current version.
Telephonic harassment is a Class B misdemeanor. ORS 166.090.
Defendant had legal prescriptions for the medications. The record suggests that defendant had a medical marijuana card permitting him to possess the marijuana.
Morton also involved property — a woman’s purse — that was found initially by a citizen, who reported the find to police. 110 Or App at 221. We have identified only one other case that invokes Pidcock in the context of lost property: State v. Paasch, 117 Or App 302, 843 P2d 1011 (1992). Paasch likewise involved
As with ORS 98.005, the amendments to ORS 98.015 are minor and do not bear on this appeal.
“Unknown” means “not known.” Webster’s Third New Int’l Dictionary, 2502 (unabridged ed 2002). “Known” is the past participle of “to know.” Id. at 1253.