State v. Gatto

                                       210

Argued and submitted October 18, 2018, reversed and remanded May 13, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 PHILIP ANTHONY GATTO III,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      16CR45834; A164144
                                   

     In this criminal case, defendant assigns error to the trial court’s denial of
his motion to suppress evidence obtained following a warrantless search of his
hotel room. Defendant asserts that, under Article I, section 9, of the Oregon
Constitution, he retained a privacy interest in the hotel room because he had
not relinquished control of the room. The state remonstrates that the trial court
implicitly found that defendant had checked out of the hotel and, therefore, did
not have a privacy interest in the hotel room at the time the police entered the
room. Held: The trial court erred in denying defendant’s motion to suppress the
evidence found in defendant’shotel room and all evidence subsequently derived
from that search because defendant maintained a possessory and privacy interest in the hotel room at the time police entered the room. The test for actual abandonment under Article I, section 9, is whether defendant’s statements and conduct demonstrated that he relinquished all constitutionally protected interests
in the room. Although the trial court found that the hotel staff believed defendant
checked out, that finding—without more—does not aid the state in meeting its
burden to show that defendant’s statements and conduct manifested an intent to
relinquish control of his hotel room.
    Reversed and remanded.



    Janelle F. Wipper, Judge.
   Joshua B. Crowther argued the cause for appellant. Also
on the briefs was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services.
   David B. Thompson argued the cause for respondent. Also
on the brief were Ellen F. Rosenblum, Attorney General and
Benjamin Gutman, Solicitor General.
  Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.*
______________
   * Egan, C. J., vice Garrett, J. pro tempore.
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 (2020)   211

  POWERS, J.
  Reversed and remanded.
212                                                       State v. Gatto

          POWERS, J.
         In this criminal case, defendant appeals from a
judgment of conviction for three counts of aggravated identity theft, ORS 165.803, two counts of identity theft, ORS
165.800, resisting arrest, ORS 162.315, and theft in the
second degree, ORS 164.045. Defendant assigns error to
the trial court’s denial of his motion to suppress evidence
obtained following a warrantless search of his hotel room.
Defendant asserts that, under Article I, section 9, of the
Oregon Constitution, he retained a privacy interest in the
hotel room because he had not relinquished control of the
room. The state remonstrates that the trial court implicitly
found that defendant had checked out of the hotel and, therefore, did not have a privacy interest in the hotel room at the
time the police entered the room. For the reasons explained
below, we agree with defendant’s position, and, accordingly,
we reverse and remand.
         We review the trial court’s denial of a defendant’s
motion to suppress for legal error and are bound by the trial
court’s findings of fact if there is constitutionally sufficient
evidence in the record to support those findings. State v.
South, 

, 

 (2019), rev den, 

 (2020). In the absence of an express factual finding,
we presume that the trial court found facts consistent with
its ultimate conclusion. 

 We will not, however, “presume
an implicit finding where the record does not support it” or
where the record “shows that such a finding was not part of
the trial court’s chain of reasoning forming the basis of its
ultimate legal conclusion.” State v. Adams, 

, 

 (2020). We set out the facts consistent with
those standards.
         Defendant reserved a hotel room in Tigard from
July 20, 2016, until July 22, 2016.1 On the morning of
July 22, a hotel employee noticed that her purse was missing from housekeeping’s laundry room and reported it to the
hotel’s operations manager. The operations manager, along
with the general manager, reviewed the hotel’s surveillance

    1
      Police later learned, weeks after the challenged search, that defendant
reserved the hotel room by using a stolen credit card.
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video and observed an unknown individual enter the laundry room and walk out with the employee’s purse.
         A little before 8:00 a.m., Tigard police officers
responded to the hotel to investigate the stolen purse.
Shortly after the officers arrived, hotel staff directed Officer
Pastore’s attention to two individuals that, according to
hotel staff, were loading their bags into a white Ford Focus
and seemed to be leaving the hotel in a hurry. Pastore went
to look at the individuals in the parking lot and made note
of the Ford Focus, because it was parked in a handicap spot
but did not otherwise connect the individuals to the stolen
purse. He then proceeded to watch the surveillance video of
the theft, took some images of the surveillance footage, and
left to write up a police report. At the suppression hearing,
the operations manager testified that he had seen the same
individuals leave room 102, the room later associated with
defendant. The operations manager explained that the individuals were carrying bags and appeared to be in a hurry,
because they left “quicker than normal to the exit.”
         The general manager and operations manager suspected that the individuals who left room 102 had something to do with the missing purse. Although it was almost
three hours before the noon check-out time and there was
no indication that the occupants of room 102 had formally
checked out, the hotel staff entered the room to search for
the purse. The staff believed that the occupants had checked
out of the hotel, because they had observed the individuals
leave with bags and drive away.2 Inside the room, hotel staff
found several items: a brand-new vacuum; a brand-new set
of pots and pans; a new-looking pair of shoes; a laminated
paper that appeared to have several credit card numbers;
and a receipt from another hotel nearby. Believing that the
items looked suspicious, hotel staff again called the police to
investigate.

    2
      The operations manager testified that the hotel has a noon check-out time
and guests can check out in a variety of ways. Guests can notify hotel staff that
they are checking out by calling or going to the front desk; alternatively, guests
can simply leave without notifying the hotel. As noted above, defendant did not
notify the hotel that he checked out of room 102; rather, hotel staff acted on their
belief that defendant had checked out of the room before the noon check-out
time.
214                                            State v. Gatto

         When the police arrived at the hotel a second time,
one of the managers told the officers that the individuals
in room 102 had checked out. Relying on that information,
the officers entered defendant’s hotel room. Pastore later
testified at the suppression hearing that, had he received
information that the occupants of the room had not checked
out, he would not have entered the room and would have
obtained a warrant. Along with the various items identified by the hotel staff, Pastore also found a bill for the
room with defendant’s name on it, a number of clear, printable labels with credit card numbers and names of people,
and a piece of paper with an additional credit card number written on it. Pastore seized the items as potential evidence of forgery or fraud. Because the receipt found from
the other hotel indicated that the check-out day for that
hotel had been two days prior, Pastore concluded that it
was likely that the occupants of room 102 had also previously stayed there as well. Pastore decided to drive to the
other hotel to further investigate potential forgery and
fraud.

         At the second hotel, Pastore found the same white
Ford Focus in the parking lot and recognized that the passenger in the car—defendant—was the same person that
Pastore had seen on the surveillance video at the first hotel.
Pastore eventually arrested defendant and found, among
other items, two hotel keys to room 102 in defendant’s possession along with other incriminating evidence in the Ford
Focus.

        At trial, defendant moved to suppress the evidence
found in the hotel room, as well as any derivative evidence
from the search, under Article I, section 9, and the Fourth
Amendment to the United States Constitution. Defendant
argued that, given that it was well before the hotel’s check-out time, defendant retained a privacy interest in the room.
Additionally, defendant asserted that hotel staff had no
authority to consent to a search. The state countered that
the search was reasonable because the hotel staff believed
that defendant had checked out, which had the legal effect
of abandoning his privacy interest in the room. Therefore,
the hotel staff had authority to consent to a search of the
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hotel room.3 The trial court denied defendant’s motion to
suppress, concluding that—regardless of whether defendant
had checked out—the hotel staff believed that defendant had
checked out, relayed that information to the officers, and the
officers acted under the belief that defendant no longer had
an expectation of privacy in the room. Ultimately, the trial
court found defendant guilty on all counts.
         On appeal, defendant challenges the trial court’s
ruling on his motion to suppress by renewing his argument
that he did not abandon his privacy interest in the hotel
room. Defendant contends that, because the search occurred
before the hotel’s check-out time, “he never expressly disavowed his possessory interest in the room.” In particular,
defendant points out that he still had personal items in the
hotel room. Defendant further argues that the warrantless
search did not fall under the consent exception to the warrant requirement. The state, on the other hand, contends
that defendant’s rights under Article I, section 9, were not
implicated when police entered the hotel room, because
the trial court implicitly found that defendant had checked
out of the room. Specifically, the combination of hotel staff
observing individuals leave the hotel room with their bags
and then drive away, along with the nature of the items
left behind in the room, supported a reasonable conclusion
that defendant had checked out and abandoned any privacy
interest in the hotel room.4
    3
      At trial, the state also argued that defendant retained no privacy interest
in the room because he used a fraudulent credit card to obtain the room and
that the police would have inevitably discovered the evidence. The state does not
meaningfully pursue either of those arguments on appeal; therefore, we do not
address them.
    4
      At oral argument, the state also asserted that, because the hotel staff
entered and searched the hotel room before notifying police, the hotel staff’s
actions constituted a private search, and therefore, the subsequent search of the
room by police was not an unlawful search under Article I, section 9. See State v.
Stokke, 

, 

, rev den, 

 (2010) (concluding
that any protected privacy interest that the defendant had in the contents of
a hotel safe had been extinguished by hotel employees’ actions). Although the
state raised a private-search argument during the suppression hearing, the state
did not advance that argument in its answering brief. Accordingly, that argument is not properly presented on appeal. See Colton and Colton, 

, 

 (2019) (“We do not consider appellate arguments—even
if properly preserved—that are made on appeal for the first time during oral
argument.”). Further, to the extent that the state cites to a case in its memorandum of additional authorities that discusses a private search extinguishing any
216                                                              State v. Gatto

         As an initial matter, the parties’ arguments presume—
as we do—that defendant had a constitutionally protected
possessory and privacy interest in the hotel room prior to
the hotel staff believing defendant had checked out. The
state argues that, because defendant’s actions demonstrate
that he had checked out and abandoned the room, defendant no longer had a privacy interest in the hotel room
at the time police entered the room. Therefore, we understand the state to advance an actual abandonment argument on appeal and do not understand it to be advancing
an argument that it was reasonable for police to believe that
defendant had checked out of the room.5 Thus, whether the
warrantless search of defendant’s hotel room was lawful
turns on whether defendant abandoned his constitutionally
protected privacy interest, the state’s argument is not properly raised on appeal.
See State v. Lobo, 

, 747 n 2, 

, rev den, 

 (2014)
(explaining that “a memorandum of additional authorities is not a proper vehicle
in which to advance arguments that were not made in defendant’s opening or
reply briefs”); ORAP 5.85(2) (providing that a memorandum of additional authorities “[s]hall include citations to relevant cases and statutes and shall identify the
issue that has been previously briefed to which the new citations apply”).
     5
       In State v. Brown¸ 

, 352 n 4, 

 (2015), we noted
the development of two different formulations for abandonment, viz., actual or
apparent abandonment:
          “In [State v.] Cook, [

, 

 (2001),] 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, 

. 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. 

 at 608-
     09. In [State v.] Brown, [

, 

 (2010),] 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, 

.
     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.”
(Emphasis in original.) In this case, because the parties on appeal have framed
the issue under the first formulation—focusing on whether defendant actually
abandoned any interest in the hotel room—we do not address the applicability of
the second formulation regarding apparent abandonment. See, e.g., In re Fadeley,

, 406 n 2, 

 (2007) (declining to reach merits of undeveloped
constitutional claims because “neither is sufficiently developed for review”); State
v. Montez, 

, 

 (1990) (refusing to address a constitutional claim because “a thorough and focused analysis” was not presented on
review).
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 (2020)                              217

protected possessory and privacy interests in the hotel room
at the time police entered and searched the room.
         Article I, section 9, provides that, “[n]o law shall
violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search,
or seizure[.]” A “search” for purposes of Article I, section 9,
occurs when the government “invades a protected privacy
interest”; that is, not the privacy interest “that one reasonably expects but the privacy to which one has a right.” State
v. Brown, 

, 

 (2010) (quoting
State v. Campbell, 

, 

 (1988)
(emphasis omitted)).
         An individual’s rights under Article I, section 9,
are not violated “if that person abandons his or her possessory or privacy interests in an item before it is searched.”
State v. Jones, 

, 

 (2016).
“Abandonment is a voluntary relinquishment of possessory
and privacy interests in an article of property that necessarily involves both legal and factual questions.” State v. Knox,

, 

, rev den, 

 (1999)
(internal quotation marks omitted). To determine whether a
defendant abandoned his or her possessory or privacy interest, we look to “whether the defendant’s statements and
conduct demonstrated that he [or she] relinquished all constitutionally protected interests in the articles of property.”
State v. Cook, 

, 

 (2001). That is,
the state must prove facts to support the conclusion that the
defendant’s statements and conduct manifested an intent to
abandon his or her constitutionally protected interests. See
State v. Voyles, 

, 

, rev den,

 (2016) (stating that, when the state seizes evidence in a warrantless search, “the state has the burden to
prove by a preponderance of the evidence that the search
was legal and did not violate Article I, section 9”).
        In this case, the state failed to meet its burden to
show that defendant manifested an intent to abandon his
constitutionally protected interest in the hotel room. To the
extent that the state argues that “the trial court implicitly
found that [defendant] … had checked out,” and that we
should adhere to that finding, we disagree. In ruling on
218                                                           State v. Gatto

defendant’s motion to suppress, the trial court explicitly
declined to find that defendant had checked out. The trial
court, instead, concluded that it did not need to decide that
factual issue. The trial court explained:
    “[N]o one knows if [defendant] had actually fully intended to
    check out of the room at that early hour. Frankly, it doesn’t
    matter, given the fact that the hotel employees believed
    that he had, told the officers that he had, and based on
    that, the officers acted.
        “…
        “We have a situation in this particular case where the
    officers believed, based on the hotel employee’s representation to them that they had checked out and had no expectation of privacy in that room anymore and acted accordingly.
        “Therefore, I am denying the motion to suppress.”
We do not understand the trial court’s ruling as an implicit
finding that defendant checked out. Instead, in denying
defendant’s motion to suppress, the only finding that the
trial court made was that, given the hotel staff’s representations to the police, the officers believed that defendant had
checked out of the hotel room.6 Therefore, we cannot presume an implicit finding, because it was not necessary to the
trial court’s ruling. See, e.g., Pereida-Alba v. Coursey, 

, 

 (2015) (“If an implicit factual finding is
not necessary to a trial court’s ultimate conclusion or is not
supported by the record, then the presumption [under Ball
v. Gladden, 

, 

 (1968)] does not
apply.”); State v. Jackson, 

, 

 (1984)
(declining to attribute an implicit factual finding to a trial
court when that court “never made any conclusions” regarding that factual issue (emphasis omitted)). Moreover, because
the test for actual abandonment under Article I, section 9, is

    6
      In announcing its decision, the trial court explained that it was distinguishing this case from Stoner v. California, 

, 

, 

 (1964), a Fourth Amendment case analyzing whether a hotel guest maintained an expectation of privacy in a hotel room. Given the trial court’s analysis
of Stoner, we do not understand the trial court to be making a ruling on the
apparent abandonment formulation under Article I, section 9, discussed above.
Moreover, because the parties have framed the issue on appeal on whether defendant actually abandoned any interest in the hotel room, we do not address the
applicability of any apparent abandonment argument.
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whether defendant’s statements and conduct demonstrated
that he relinquished all constitutionally protected interests
in the room, not whether it was reasonable for police to conclude that defendant abandoned the room, the trial court’s
finding that the hotel staff believed defendant checked out
does not aid the state in meeting its burden to show that
defendant’s statements and conduct manifested an intent to
relinquish control of his hotel room.
          In this case, the state places significant weight on
the fact that hotel staff observed two individuals leaving
defendant’s hotel room with bags, loading their bags in the
car, and driving away. Although such actions may be one
indication that a hotel guest intends to check out of a hotel
and relinquish her or his room, those actions do not necessarily suggest that a guest has checked out. For example,
it is not uncommon for guests to pack their car, to leave for
breakfast or to attend a morning meeting, and then to return
to their room before checking out for the day. Particularly
when, as in this case, a guest leaves a room well before the
hotel’s check-out time, it cannot be said that the guest has—
without more—abandoned a privacy interest in the hotel
room.
         Here, apart from walking away from the hotel room
with some bags shortly before 8:00 a.m., defendant made no
statements or other actions to suggest that he was relinquishing control of the room. See State v. Brown, 

, 

 (2015) (concluding that, because the
defendant’s “act of leaving the bag in the parking lot [and
walking away] was not accompanied by any words or conduct indicating that he intended to leave the bag behind,”
the defendant had not relinquished his interests in that
property). On the contrary, defendant never expressly conveyed to the hotel that he was checking out, defendant left
several items in the room that one might expect someone to
come back for, and defendant still had two keys to room 102
with him. Under those circumstances, we conclude that the
state did not offer sufficient evidence to permit the legal conclusion that defendant actually abandoned his constitutionally protected interest in the hotel room. Therefore, we hold
that defendant maintained a possessory and privacy interest in the hotel room at the time police entered the room.
220                                           State v. Gatto

         Accordingly, the trial court erred in denying defendant’s motion to suppress the evidence found in defendant’s
hotel room and all evidence subsequently derived from that
search.
        Reversed and remanded.