State v. Belcher

749 P.2d 591, 89 Or. App. 401, 1988 Ore. App. LEXIS 255

• Court: Court of Appeals of Oregon
• Decided: February 10, 1988
• Docket: 86-CR-0140-TM; CA A41457
• Status: Published

Opinions

WARREN, J.

Defendant appeals his conviction for burglary in the first degree. He assigns as error the trial court’s denial of his motion to suppress evidence found in a small leather bag inside his backpack. He further challenges the trial court’s failure to suppress certain statements that he made. We affirm.

Defendant was involved in a fight at a public parking lot. When the police arrived, he and other participants fled. Some of the remaining bystanders informed the police officer that one of the fighters had dropped a wallet, which was lying on the ground. None of the witnesses knew who owned the wallet. The officer opened it and found that it contained defendant’s identification. Sometime later the officer noticed a red backpack lying in the lot. The pack was open, and he could see clothing in it. The officer asked bystanders whether they knew the owner of the pack, but none of them did. He then fully opened the pack and found a pair of shorts, a T-shirt, coins and a small leather bag. When the officer opened the bag, he found jewelry, which he suspected was from a recent burglary.

The next morning, another officer went to see defendant at his residence. Defendant appeared bruised and told the officer that he had been in a fight the previous night. The officer told defendant that the police had found his wallet and a red backpack. Defendant said that he did not know that it had been missing. In response to the officer’s questions, he also said that the backpack and clothing were his but that the jewelry and coins were not. He then voluntarily accompanied the officer to the police station, where he was informed of his Miranda rights, which he waived. Subsequently, he confessed that he had obtained the jewelry in a burglary.

Defendant first assigns error to the trial court’s denial of the motion to suppress the contents of the small bag on the ground that they were the fruit of an unreasonable, warrantless search. The trial court denied the motion on the basis that, under the circumstances, there was no reasonable expectation of privacy in the contents of the abandoned pack. Defendant relies on State v. Rounds, 73 Or App 148, 698 P2d 71, rev den 299 Or 663 (1985), in which we concluded that the search on private property of a closed backpack which the officer knew the defendant had visited as recently as 15 minutes before was a search subject to constitutional protection. We held that the opening of a cigarette box inside the backpack was unreasonable.

The critical issue here is whether the search and seizure of the pack and its contents violated defendant’s Article 1, section 9, rights, that is, in particular, the privacy he has a right to expect from the government. If it did, the evidence should have been suppressed. State v. Tanner, 304 Or 312, 315-16, 321 n 7, 745 P2d 757 (1987).

Defendant would have no right to expect privacy from the government or anyone else in the pack and could not raise the issue of reasonableness of the search, if he had abandoned it. State v. Tanner, supra, 304 Or at 321. In the law of property, abandonment is the voluntary, intentional relinquishment of possession by the owner with the intention of terminating his ownership. Rich v. Runyon, 52 Or App 107, 112, 627 P2d 1265 (1981). For constitutional purposes, “abandonment” addresses a different concern and has a different focus. We are not concerned with whether an owner has relinquished control over the property in a manner such that whoever acquires it may successfully assert ownership against the former owner. We are only concerned with whether the owner has left his property under circumstances which objectively make it likely that others will inspect it. Stated differently, in the constitutional context we are concerned with whether the owner has “abandoned” his right of privacy in the property so that its inspection presents no question of a search with constitutional implications. State v. Green, 44 Or App 253, 259, 605 P2d 746 (1980).¹

We agree with the trial court that the circumstances of this case are different from those in State v. Rounds, supra, where the backpack was found in the carport on private property. The officer knew that the defendant had returned to his backpack at least once after placing it in the carport. We concluded that, under those circumstances, there was no objective basis for the officer reasonably to think that the pack had been abandoned. State v. Rounds, supra, 73 Or App at 152.

In this case, the officer found the pack, which was open, on a public parking lot. He was aware that a fight had taken place and that the participants had fled. The wallet with defendant’s identification was not in the pack; the officer did not know that defendant also owned the pack. His questioning of bystanders produced no results. He could reasonably conclude that the pack had been left by one of the participants in the fight who had fled the scene. Although the property intruded upon was a personal effect, we hold that defendant, in fleeing the scene and leaving the pack behind in a public place, abandoned the pack in the constitutional sense that he retained no right of privacy in it. The officer’s inspection of its contents was not a search subject to constitutional protection.

For the same reason, defendant’s argument that his statements to the police concerning the contents of the pack should be suppressed as “fruit of the poisonous tree” also fails.

Affirmed.

1 The dissents say that, because Article I, section 9, guarantees defendant’s privacy right in his personal effect, the reasonable expectation of privacy under the federal analysis has nothing to do with the case. That misses our point. The source of the privacy right in a personal effect is not critical in our view. The fact that the Oregon Constitution guarantees privacy in personal effects does not mean the right of privacy cannot be lost, but that is what the dissent assumes. The dissents’ criticism of our reliance on State v. Green, 44 Or App 253, 605 P2d 746 (1980), also misses the point. Although Green is phrased in the terms of the federal “expectation of privacy” analysis, whereas the state constitutional analysis focuses on the “right of privacy,” see State v. Tanner, supra, 304 Or at 321 n 7, we see no reason why the Green “abandonment for constitutional purposes” rationale should not be applicable under both concepts. The question is not whether we analyze the facts on a federal or state constitutional basis. Both constitutions guarantee privacy in personal effects. It is plain that, at some point, a person who has left property in a public place where others can find it must anticipate that the natural curiosity of others will reveal its contents. We do not believe that either the federal or state constitution is designed to protect from exposure by governmental inspection that which appears objectively to have been left available for public scavenging.