State v. Bunch

                                      61

 Argued and submitted January 30, 2019, reversed and remanded July 1, 2020


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       MISTY DAWN BUNCH,
                        Defendant-Appellant.
                      Coos County Circuit Court
                        16CR46252; A164667
                                 

    Defendant appeals from a judgment of conviction for possession of methamphetamine and heroin, assigning error to the trial court’s denial of her motion
to suppress evidence found after police seized and searched her purse. Held: The
trial court erred in determining that police lawfully searched defendant’s purse
as “lost property,” and also erred in concluding that defendant could not challenge the lawfulness of the search, because she had abandoned her interest in
the purse and its contents.
   Reversed and remanded.



   Martin E. Stone, Judge.
   Rond Chananudech, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Hannah Hoffman, Assistant Attorney General, argued
the cause for respondent. On the briefs were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Susan G. Howe, Assistant Attorney General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
   ARMSTRONG, P. J.
   Reversed and remanded.
62                                             State v. Bunch

        ARMSTRONG, P. J.

         Defendant appeals from a judgment of conviction
for possession of methamphetamine and heroin, assigning
error to the trial court’s denial of her motion to suppress evidence found after police seized and searched her purse. The
trial court determined that a police officer lawfully searched
the purse as “lost property” to determine who owned it and
return it to its owner. The court alternatively concluded that
defendant could not challenge the lawfulness of the search,
because she had abandoned her interest in the purse and its
contents. We review the trial court’s ruling on the motion
for errors of law, conclude that the trial court erred, and
reverse.

         We state the facts consistent with the trial court’s
findings and its denial of defendant’s motion to suppress.
State v. Turnidge (S059155), 

, 

(2016). To the extent that the court did not make express
findings, we presume that the court decided the facts in the
light most favorable to the state. Ball v. Gladden, 

, 

 (1968).

          In response to a tip, Coos Bay Police Officer Volin
went to a restaurant to arrest defendant on an outstanding probation violation warrant. As he approached, he saw
that defendant was standing in front of a slot machine with
a friend. Volin testified at the suppression hearing that he
saw a purse on the chair in front of defendant’s slot machine
and he assumed that it belonged to her. After Volin arrested
defendant, he asked her if the purse was hers. Defendant
answered, falsely, that the purse was not hers and that it
belonged to a friend who had left to run an errand. The
friend standing next to defendant also denied that the purse
was hers, pointing to her own purse. Volin asked the name
of the friend who had left to run the errand, and defendant
replied that it was Jasmine or Jayden. In response to Volin’s
further questions, defendant said that she did not know the
friend’s last name or phone number.

         Volin told defendant that he would take the purse
to the police station for safekeeping and that he was seeking
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information about its owner so he could return it to them.
Defendant then said that her cell phone and charger were
in the purse and that she would like to take them with her.
The purse was unzipped and open, and the cell phone and
charger were sitting at the top; Volin took them out and
handed them to defendant. Volin testified that at that time
he did not see any identification in the purse but that he did
see tobacco. Volin again asked defendant if the purse was
hers, and defendant said no, that the purse belonged to a
friend who had gone to buy cigarettes.
         Volin testified that he drove defendant to the police
station, where she was transferred to the jail. Volin testified
that, because defendant had denied owning the purse, he
could not send it with her to the jail. He did not inventory
the purse or seek a warrant to search it. Rather, he began
to go through the purse “to identify who the purse and the
property belonged to so I could return it to them.” Volin testified that, although he believed the purse probably belonged
to defendant because it had been in close proximity to her
and “technically in her possession” at the restaurant, as he
went through the purse, he looked for identification to determine its ownership, because defendant had been adamant
that the purse did not belong to her. Volin testified that he
first removed an iPhone case and a small grey pouch, which
were empty. He then removed a small collapsible metal wallet that might be used to carry ID cards. In the collapsible
metal wallet Volin found bindles that were determined to
contain methamphetamine and heroin. Volin then found a
bright green zip-up case that contained defendant’s Social
Security card, an Oregon identification card for defendant,
and two bank cards with her name on them. Volin took a
photograph of the purse and the items it contained and concluded his search.
         Lab testing confirmed that the bindles contained
methamphetamine and heroin, and defendant was charged.
She sought to suppress the evidence, arguing that Volin’s
examination of the purse was an investigatory search
rather than an attempt to determine the identity of the
purse’s owner and that, in the absence of defendant’s consent or a warrant, the search violated Article I, section 9, of
64                                                          State v. Bunch

the Oregon Constitution or the Fourth Amendment to the
United States Constitution.1
          The state responded that defendant abandoned any
possessory or privacy interest in the purse when she twice
told Volin that it did not belong to her and when she did not
assert an interest in it after Volin told her that he would
take it to the police station for safekeeping. In the alternative, in the face of defendant’s disclaimer, the state argued
that Volin could lawfully examine the purse and its contents
as lost property to determine its ownership.
         In denying defendant’s motion to suppress, the trial
court reasoned that Volin lawfully seized the purse to search
for identification, because “no reasonable officer could leave
a purse just sitting … in a business without determining
whose it was.” The court believed Volin’s testimony that he
looked through the purse to determine its owner. The court
found that Volin was “merely trying to find out who[se] it
was after [defendant] denied it was hers on two occasions
and then specifically said, ‘Hey, I’ve got some things in her
purse that are mine. But, nothing else is mine, just those.’ ”
The court also believed Volin’s description of his search of
the purse. The court determined that defendant had abandoned any possessory or privacy interest in the purse by
disclaiming an interest in it, that she had thereby lost her
privacy interest in the contents of the purse, and that Volin
could reasonably search the purse as lost property to determine its ownership. The court denied defendant’s motion to
suppress, and she was convicted after a jury trial.
         On appeal, defendant assigns error to the trial
court’s denial of her motion to suppress. She disputes the
trial court’s conclusion that Volin lawfully searched the
purse to determine its ownership or,2 if the search was
    1
      Defendant only challenged the search and did not argue that Volin had
unlawfully seized the purse.
    2
      Defendant did not argue below and does not argue on appeal that Volin
could not lawfully seize the purse at the restaurant and bring it to the police
station. Although in her reply brief defendant argues that she “can challenge the
search and seizure of the purse because she started with a protected privacy and
possessory interest in the purse” (emphasis added), that argument responds to
the trial court’s conclusion that defendant had abandoned her constitutionally
protected interest in the purse and lost her ability to challenge the search by
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not lawful, that she had abandoned her constitutionally
protected interest in the purse under Article I, section 9,
and thereby lost her ability to challenge the search.3 In its
respondent’s brief, the state does not address the lawfulness
of the search and argues only that defendant abandoned
her possessory and privacy interest in the purse and, hence,
that her rights in the purse were not violated by the police
search of it.
         We begin our analysis by addressing the lawfulness
of the search. Subject to certain specifically established and
limited exceptions, a warrantless search by the police of
a person’s property is per se an unreasonable interference
with the person’s privacy interests in the property. State v.
Pilgrim, 

, 

 (2016). The state
bears the burden of proving that a warrantless search did
not violate a protected interest of the defendant. State v.
Tucker, 

, 

 (2000); ORS 133.693(4)
(“Where the motion to suppress challenges evidence seized
as the result of a warrantless search, the burden of proving
by a preponderance of the evidence the validity of the search
is on the prosecution.”).
          One exception to the warrant requirement allows
police to search lost property for the limited purpose of identifying the owner of the property. State v. Pidcock, 

, 

 (1988), cert den, 

 (1989).
To search a property as lost, the officer must have a “good
faith, subjective belief that the property is lost and that belief
needs to be objectively reasonable under the circumstances.”
State v. Woods, 

, 54, 

 (2017). As
noted, the trial court concluded that Volin could search the
purse as lost property. The state does not attempt to justify
Volin’s search of the purse as a search to identify the owner
of lost property. And, as explained below, that justification is
not supported by the record.

disclaiming ownership. Defendant does not separately challenge the trial court’s
conclusion that Volin lawfully seized the purse at the restaurant when he brought
it to the police station after defendant had disclaimed ownership of it. We therefore need not address whether the seizure was lawful.
     3
       Article I, section 9, provides, in part:
     “No law shall violate the right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable search, or seizure ….”
66                                              State v. Bunch

          Volin testified that he believed, both at the time that
he saw the purse on the chair and when he began searching
it, that the purse belonged to defendant, and that he decided
to search it to determine its owner only because of defendant’s adamant denial. He did not testify that he believed
the purse to be lost. The state contended at oral argument
that the record reflects that, although Volin suspected that
the purse belonged to defendant, he was not certain, and
that he therefore could lawfully search it to determine its
owner.

         But uncertainty as to the purse’s ownership does
not translate into a subjective belief that the purse was
lost. See Woods, 288 Or App at 54-55 (although officers did
not know who owned a cellphone that had been left in their
possession, they lacked an objectively reasonable belief
that it was lost); State v. Rowell, 

,

, rev den, 

 (2012) (“Defendant had
asserted that he was watching [the laptop] for his acquaintance. The state correctly observes that the police had no
legal duty to believe him, but that fact is beside the point.
There is no evidence that their disbelief derived from a suspicion that the bag was ‘lost.’ ”). Defendant had told Volin
that the purse belonged to a friend; Volin suspected that it
belonged to defendant. Volin testified that he searched the
purse to determine its owner. Volin did not testify that he
searched the purse because he thought it was lost. The trial
court found credible Volin’s explanation that he searched
the purse to determine its owner, but the court did not find
that Volin believed the purse to be lost, and the evidence
in the record would not support a finding that Volin had
a subjective belief that the purse was lost. Additionally,
under the circumstances, we conclude that, even if Volin
did subjectively believe that the purse was lost, that belief
was not objectively reasonable. We conclude for those reasons that record does not support the trial court’s conclusion
that Volin could search the purse without a warrant as lost
property.

         It is not enough, however, that a search may have
violated Article I, section 9, in the abstract. As the Supreme
Court said in State v. Tanner, 

, 

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(1987), courts will suppress evidence only when a defendant’s rights under Article I, section 9, have been violated.
“[T]he search … must violate the defendant’s section 9
rights before evidence obtained thereby will be suppressed;
a defendant’s section 9 rights are not violated merely by
admitting evidence obtained in violation of section 9.” Id. at
315-16. Whether Volin’s search of defendant’s purse violated defendant’s rights under Article I, section 9, turns on
whether defendant had a constitutionally protected privacy
interest in the purse at the time of the search. See State v.
Owens, 

, 

 (1986) (“Article I, section 9, protects privacy and possessory interests.”).

          It is undisputed that defendant owned the purse and
that it was in her possession when Volin first approached
her. We conclude that she had a protected possessory interest in it at that time. See State v. Morton, 

,

 (1998) (if a defendant has actual or constructive
possession of property immediately before it is searched, the
defendant has a constitutionally protected possessory interest in that property). The state contends that defendant lost
that possessory interest, as well as her privacy interest in
its contents, after she twice disclaimed ownership of the
purse and then did not assert that it was hers after Volin
announced that he would bring it to the police station to
look for identification.

         A person can lose a constitutionally protected possessory and privacy interest in property by abandoning it.
State v. Jones, 

, 

 (2016) (a
person’s Article I, section 9, rights are not violated if that
person abandons his or her possessory or privacy interests
in an item before it is searched); State v. McClatchey, 

, 

 (2013) (“A defendant’s rights are
not violated if the defendant abandoned his or her possessory
or privacy interests in an item before it was searched[.]”). In
determining whether a person has abandoned a constitutionally protected interest in an article of property, the court
considers whether the defendant’s statements and conduct,
in light of the totality of the circumstances, demonstrated
that the person unequivocally relinquished all constitutionally protected interests in the property. State v. Brown, 348
68                                            State v. Bunch

Or 293, 302, 

 (2010); see also Pilgrim, 

 (in order to “relinquish a person’s constitutionally protect[ed] interests in an object … the person must
unequivocally manifest an intention to do that”); Rowell,

 (in determining whether a person has
abandoned a protected possessory or privacy interest, we
examine the totality of the circumstances, as known at the
time of the search).
         Whether a person’s statements and conduct unequivocally demonstrate that the person has relinquished all constitutionally protected interests in property involves both
factual and legal questions, which we review in the same
manner as we review other search or seizure questions
under Article I, section 9. State v. Cook, 

, 

 (2001). Thus, we defer to the trial court’s findings
of historical fact if evidence supports them but determine as
a matter of law whether those facts are sufficient to constitute abandonment. The state, as the proponent, bears the
burden of proving by a preponderance of the evidence that
a defendant has abandoned her constitutionally protected
interests in the property. See State v. McKee, 

, 

 (2015); State v. Knox, 

, 

, rev den, 

 (1999) (“[T]he state
has the burden of proving the negative proposition that no
interest of the defendant’s was involved.”).
          In State v. Ipsen, 

, 

(2017), we identified six factors that, depending on the circumstances, might bear on the determination whether a person has abandoned an interest in property: (1) whether the
defendant separated herself from the property as a result of
police instruction or illegal police conduct; (2) whether the
defendant left the property on public or private property;
(3) whether the defendant “made any attempt to hide the
property or in any other way manifest an intention to the
police that he … was attempting to maintain control over
it”; (4) whether the defendant “has left his property under
circumstances which objectively make it likely that others
will inspect it”; (5) whether the defendant has placed the
item in plain view; and (6) whether the defendant gave up
his rights to control the disposition of the property. 288 Or
App at 399-400.
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          We have considered all of those factors. Most of them
do not bear directly on our inquiry, because they relate to
a circumstance where the police recover property after the
person has left it behind. There is no dispute that defendant
did not leave the purse as a result of police instruction, that
she disclaimed ownership to it voluntarily, without attempting to conceal it, and that she knew that Volin would bring
it with him to the police station. In fact, she did not leave the
purse at all. The only question is whether, by disclaiming
ownership and allowing Volin to take the purse, defendant
also gave up her right to control the disposition of the purse.
The state contends that defendant abandoned the purse
first by disclaiming her ownership interest in it and then by
not asserting control over the purse when Volin seized it.
         Abandonment requires an unequivocal manifestation of an intention to relinquish all constitutionally protected interests in the affected property. Brown, 

. A disclaimer of ownership of an item may, but does
not necessarily, demonstrate an abandonment of all constitutionally protected interests in the item. Cook, 

. (“[B]ecause Article I, section 9, protects both possessory and privacy interests in effects, property law concepts
of ownership and possession are relevant, though not always
conclusive, in the factual and legal determination whether a
defendant relinquished all constitutionally protected interests in an article of property.”). The surrounding circumstances will determine the effect of the disclaimer. Unless
a possessory or privacy interest may be inferred from the
circumstances, a disclaimer of ownership “may trigger an
obligation by the defendant to assert a protected interest
other than ownership in the property.” Standish, 

, 

 (2005). Citing Standish, the state
contends that, after defendant disclaimed ownership of the
purse, in order to protect any possessory or privacy interest
in the purse, defendant should have asserted that interest
before Volin seized it. But the circumstances existing at the
time that Volin seized the purse required the inference that,
despite having disclaimed ownership, defendant did not
intend unequivocally to relinquish a possessory or privacy
interest in the purse. See 

. Volin saw that defendant had the purse next to her while playing a slot machine,
70                                            State v. Bunch

and that it was open and contained some of her belongings.
Defendant claimed ownership of some items in the purse
and requested that Volin give them to her. Defendant’s
explanation, that the purse was owned by a friend who had
left to run an errand, may have been a disclaimer of ownership, but did not express an unequivocal intention to relinquish a possessory or privacy interest in the purse. Finally,
defendant did not physically “abandon” the purse by leaving
it behind unattended. She merely acquiesced in Volin’s decision to bring the purse with him to the police station. As the
state acknowledged at oral argument, a denial of ownership
is a common subterfuge of those possessing contraband. The
circumstances all point to the inference that, despite her
disclaimer of ownership, defendant maintained possessory
and privacy interests in the purse.
         Contrary to the state’s argument, defendant’s failure to object when Volin announced that he would take the
purse for safekeeping also did not establish a voluntary
relinquishment of a possessory or privacy interest. See State
v. Jepson, 

, 

 (2012) (“mere
acquiescence” to police authority does not constitute consent); see also Tucker, 

 (a defendant is not
required to assert a property or privacy interest in property
that the police searched; rather, the burden is on the state
to prove that the warrantless search did not violate a protected interest of the defendant). For all those reasons, we
conclude that defendant did not abandon the purse or give
up her right to challenge the unlawful warrantless search.
We conclude, therefore, that trial court erred in denying
defendant’s motion to suppress.
        Reversed and remanded.