State v. Vanburen

327 P.3d 555, 262 Or. App. 715, 2014 Ore. App. LEXIS 644, 2014 WL 1937968
CourtCourt of Appeals of Oregon
DecidedMay 14, 2014
Docket11CR0094; A148781
StatusPublished
Cited by3 cases

This text of 327 P.3d 555 (State v. Vanburen) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Vanburen, 327 P.3d 555, 262 Or. App. 715, 2014 Ore. App. LEXIS 644, 2014 WL 1937968 (Or. Ct. App. 2014).

Opinion

NAKAMOTO, J.

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 98.0051 and Pidcock authorize a police officer who finds lost property to conduct a warrantless search of it to identify its owner, we hold that the officer’s subjective belief that the property is lost must be objectively reasonable under the circumstances. It was not objectively reasonable under the circumstances here for the police to believe that defendant’s bag was lost. The trial court erred when it concluded otherwise. Accordingly, we reverse and remand.

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 [717]*717apartment one evening to investigate allegations that he had been making threatening phone calls to another individual.2 The entrance to defendant’s apartment was located on the ground floor of a two-story apartment building. There are three to four additional units in this building.

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.

[718]*718As Oiler opened and searched the bag, Giovannetti continued to knock on defendant’s door. At that point, defendant answered the door. Defendant was ultimately indicted for possession of psilocybin mushrooms.3

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 [719]*719state, the latter argument “was not presented, or at least not presented clearly enough for the trial court to comprehend it[.]” We disagree. The preservation requirement exists to ensure that trial courts have an opportunity to understand and correct their own possible errors and that the parties are not taken by surprise, misled, or denied opportunities to meet an argument. State v. Vanornum, 354 Or 614, 632, 317 P3d 889 (2013); see also State v. Mack, 219 Or App 119, 125, 183 P3d 191, rev den, 345 Or 301 (2008) (“[W]here the broad legal issue has been adequately identified to the trial court, the issue will be deemed preserved for purposes of appeal.”). We conclude that both the court and the state understood that the proper interpretation of Pidcock was at issue in this case. As noted above, the state relied on objective facts to argue that the search here was permissible.

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Cite This Page — Counsel Stack

Bluebook (online)
327 P.3d 555, 262 Or. App. 715, 2014 Ore. App. LEXIS 644, 2014 WL 1937968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vanburen-orctapp-2014.