DocketNumber: CF120153; A154630
Citation Numbers: 273 Or. App. 347, 359 P.3d 413
Judges: Duncan, Flynn, Lagesen
Filed Date: 8/26/2015
Status: Precedential
Modified Date: 9/9/2022
Defendant was convicted in a bench trial of possession and delivery of methamphetamine.
As a preliminary matter, the parties agree that defendant’s motion to strike was, for all practical purposes, a motion to suppress. They agree further that we should review the trial court’s ruling under the standard of review that governs our review of a ruling on a motion to suppress. We agree with the parties that that is the appropriate approach. Accordingly, we review the trial court’s ruling to determine whether its findings of historical fact are supported by any evidence, and “whether the trial court applied legal principles correctly to those facts.” State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). To the extent that the trial
Here, the pertinent historical facts are not disputed. Defendant sideswiped two parked cars as he was driving his truck over the noon hour, but did not stop. About a block- and-a-half after sideswiping the cars, defendant parked his truck in a parking lot next to a pizza restaurant, and walked across the street to a gas station and convenience store. Defendant took a McDonald’s bag with him into the store, bought a bottle of water, and left the store.
In the meantime, police, responding to reports of the hit-and-run, had located defendant’s truck. One of the officers at defendant’s truck noticed defendant watching from the convenience store parking lot across the street, and asked another officer, Sergeant Palmer, to contact defendant. Palmer pulled his car into the convenience store parking lot, got out of the car, and asked defendant whether he knew anything about the hit-and-run or the truck parked across the street at the pizza restaurant. Defendant was carrying his McDonald’s bag and bottle of water at the time, and had been walking alongside the store in a direction away from Palmer. Defendant told Palmer that the truck was his. He explained that he had not stopped at the scene of the accident because he wanted to get the truck off of the roadway and find a phone to call in the collision. Defendant’s conversation with Palmer took place next to a compressor for the store’s walk-in cooler, and, at some point during the conversation, defendant set his water bottle and McDonald’s bag on top of the compressor, placing them upright and next to each other.
Palmer asked defendant to go across the street with him to the truck so that they could deal with the accident. Defendant agreed, and Palmer drove defendant back across the street to his truck. Defendant left his McDonald’s bag and water bottle on the compressor.
At defendant’s truck, Palmer noticed items and packaging from McDonald’s in the truck. That caused Palmer to wonder why defendant “was still packing around the bag
As noted, at trial, defendant moved to strike the evidence of the contents of the bag, on the ground that Palmer impermissibly searched the bag without a warrant, in violation of Article I, section 9, and the Fourth Amendment. The trial court denied the motion. It concluded that defendant had abandoned the bag by setting it down on the compressor, leaving it on the compressor when he went back to his truck with Palmer, and then “disavowing] the bag” when Palmer asked him about it. The court concluded further that defendant’s abandonment of the bag meant that Palmer’s search of the bag did not violate defendant’s rights under Article I, section 9, or the Fourth Amendment. The court subsequently convicted defendant of delivery of methamphetamine, possession of methamphetamine, and offensive littering.
In this case, the state does not dispute that defendant had constitutionally protected possessory and privacy interests in the McDonald’s bag at the time that Palmer first confronted him. As a result, whether Palmer’s warrantless inspection of the McDonald’s bag was lawful turns on whether defendant had abandoned his constitutionally protected possessory and privacy interests in the bag at the time that Palmer opened it and inspected its contents.
They do not. Defendant did not say anything to the officers suggesting that he intended to discard the bag before they looked inside of it.
That defendant left the bag behind when he went with Palmer does not lead to a different conclusion. Defendant did not move far from the bag (across the street) and had been separated from the bag for only 10 to 20 minutes when Palmer searched it. Additionally, defendant’s act of leaving the bag in the parking lot was not accompanied by any words or conduct indicating that he intended to leave the bag behind. See State v. Morton, 110 Or App 219, 221-23, 822 P2d 148 (1991) (merely mislaying property and walking away does not constitute abandonment). If anything, the fact that he left the bag with his recently purchased bottle of water suggests some likelihood that defendant did not intend to relinquish his interests in that property. Under those circumstances, it is as likely that defendant left the bag (and water) out of inadvertence (perhaps because he was distracted by his conversation with Palmer) and did not intend to give up his interests in the bag, as it is that defendant discarded the bag.
For the above reasons, the facts proved by the state here are insufficient to permit the conclusion that defendant had abandoned the McDonald’s bag at the time that Palmer opened it. As a result, the trial court erred when it denied defendant’s motion to strike the evidence of the contents of the bag. That evidence was central to the state’s case against defendant on the methamphetamine-related charges. Accordingly, the trial court’s error was not harmless with respect to the convictions on those charges and we must reverse. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (error is harmless only if there is “little likelihood that” the error affected the verdict).
Convictions for possession and delivery of methamphetamine reversed and remanded; remanded for resentencing; otherwise affirmed.
Defendant also was convicted of offensive littering, but he does not challenge that conviction on appeal.
Defendant raised his challenge to the search of the bag by way of a motion to strike, rather than a pretrial motion to suppress, because defendant did not discover the facts giving rise to this theory of suppression until trial, after evidence of the methamphetamine had been admitted.
The state does not contend Palmer’s inspection of the bag was authorized under an exception to the warrant requirement if defendant did not abandon his constitutionally protected interests in the bag.
In Cook, the court stated that the test for abandonment is whether the “defendant’s statements and conduct demonstrated that he relinquished all constitutionally protected interests” in the property searched by police. Cook, 332 Or at 608. However, in determining whether the property at issue in that case had been abandoned, the court applied a slightly different test, evaluating whether the searching officers had reasonably concluded that the defendant had abandoned that property. That is, the court examined whether the defendant’s statements and conduct made it reasonable for officers to conclude that the defendant had relinquished all constitutionally protected interests in the property at issue. Id. at 608-09. In Brown, the court, quoting Cook, reiterated and then applied the first formulation of the test, but did not analyze or mention the second formulation. See Brown, 348 Or at 302-05. The difference between the two formulations is potentially significant. The first appears to require that the state demonstrate actual abandonment; the second seems to require that the state demonstrate apparent abandonment. The parties here have framed their arguments under the first formulation, so that is the one that we apply. We note, however, that we would reach the same conclusion, were we to apply the second formulation and analyze whether it was reasonable for Palmer to conclude that defendant had relinquished all constitutionally protected interests in the McDonald’s bag simply by setting it down and leaving it.
Although defendant “disavowed the bag” after Palmer looked inside of it, that post-inspection disclaimer has no bearing on whether defendant had relinquished his protected interests in the bag at the time Palmer inspected it. Cook, 332 Or at 608-09 (looking to defendant’s statements and conduct before alleged search to determine whether defendant had abandoned constitutionally protected interests in property at the time of the search); State v. Bernabo, 224 Or App 379, 389 n 8, 197 P3d 610 (2008) (statements made after alleged search irrelevant to determination of whether defendant had abandoned constitutionally protected interest in searched property at the time of the search).
We note that a person who loses property does not relinquish her constitutionally protected interests in the property to the same extent as a person who discards property. When a person loses or misplaces property, she loses constitutionally protected privacy interests in the property “only to the extent necessary to search it for identification, and only so long as the item remains lost.” Brown, 348 Or at 301 (citing State v. Pidcock, 306 Or 335, 340-42, 759 P2d 1092 (1988)). Thus, if defendant had left the bag inadvertently, effectively misplacing it, Article I, section 9, would nonetheless not have permitted Palmer to search it,