inline"> 492 Argued and submitted November 18, 2019, reversed and remanded September 16, 2020 STATE OF OREGON, Plaintiff-Respondent, v. NICHOLAS VERN LEWIS, aka Nicholas V. Lewis, Defendant-Appellant. Clackamas County Circuit Court 16CR45285; A167134 474 P3d 907

Defendant appeals after entering a conditional plea, assigning error to the
trial court’s denial of his motion to suppress evidence discovered in his backpack during a warrantless search by police. On appeal, defendant asserts that
the warrantless search was unlawful in violation of Article I, section 9, of the
Oregon Constitution. The state argues that defendant abandoned his constitutionally protected interests in the backpack when he left it inside of a stolen
vehicle and that, therefore, defendant is not entitled to suppression of the evidence. Alternatively, the state contends that the warrantless search was permissible under the exception to the warrant requirement for lost property.
Held: The trial court erred in denying defendant’s motion to suppress. The state
failed to meet its burden of proving that defendant unequivocally manifested
an intention to relinquish his protected interests in the backpack. Further, the
search did not fall within the exception to the warrant requirement for lost property because the officer’s belief that the backpack was lost was not reasonable
under the circumstances.
Reversed and remanded.

Douglas V. Van Dyk, Judge.
Andrew D. Robinson, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Peenesh Shah, Assistant Attorney General, 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 Shorr, Judge, and
James, Judge.
Cite as

306 Or App 492

 (2020)   493

  SHORR, J.
  Reversed and remanded.
494                                                          State v. Lewis

           SHORR, J.

         Defendant appeals after entering a conditional plea
in which he reserved a right to challenge multiple rulings
by the trial court. Defendant raises 13 assignments of error.
We write only to address defendant’s twelfth assignment of
error, in which defendant challenges the trial court’s denial
of his motion to suppress evidence discovered in his backpack during a warrantless search.1 We affirm defendant’s
first through seventh, ninth through eleventh, and thirteenth assignments of error without written discussion. We
do not reach defendant’s eighth assignment of error.2 We
conclude that the trial court erred in denying defendant’s
motion to suppress, because the state failed to meet its burden of proving that defendant unequivocally relinquished
his constitutionally protected interests in the backpack.
Accordingly, we reverse and remand to the trial court for
further proceedings.

         We state the facts consistently with the trial court’s
findings and its denial of defendant’s motion to suppress.
State v. Bunch,

305 Or App 61, 62

468 P3d 973

 (2020). On
March 6, 2016, Officer Mansfield responded to a report of an
intoxicated driver. The 9-1-1 caller reported that a Toyota
Tundra truck was swerving and that the driver was a man
and the passenger was a woman. At some point, according
to the caller, the man and woman switched roles so that the
woman was driving and the man was the passenger.

        Another officer, Warner, located the truck at a gas
station before Mansfield arrived. When Mansfield arrived,
Warner told Mansfield that the man, defendant, claimed to

    1
      In reserving his rights to challenge the trial court’s rulings, defendant
refers to this ruling as the denial of “Defendant’s Second Motion to Suppress
(Washington County).”
    2
      Defendant’s eighth assignment of error pertains to the trial court’s disallowance of defendant’s demurrer to Count 2 of the indictment, which, in reserving his right to challenge the court’s rulings, defendant refers to as “Demurrer
to Count 2 (Identity Theft) for Violation of ORS 132.630.” Although we do not
reach defendant’s eighth assignment of error or the arguments therein, should
defendant withdraw his plea on remand, he may raise those arguments again,
and the trial court may choose to consider its ruling anew with respect to those
arguments.
Cite as

306 Or App 492

(2020) 495

be the registered owner of the truck.3 Dispatch reported to
Mansfield that the registered owner of the truck was born
in 1946, but defendant appeared to be significantly younger.
Defendant and his friend, Hasbrook, entered the convenience store adjoining the gas station. When defendant and
Hasbrook exited the store, Mansfield spoke with defendant,
who denied driving the truck. Defendant also told Mansfield
that he was not the registered owner.
While defendant was speaking with the officers,
Hasbrook drove the truck away. Warner and Mansfield continued to investigate defendant for driving under the influence of intoxicants (DUII). Approximately 10 to 15 minutes
after Hasbrook drove away, the officers determined that
defendant was not impaired, and defendant left on foot. After
defendant left the gas station, the officers became suspicious
that the truck was stolen and decided to search the nearby
area to determine if defendant and Hasbrook “had dumped
the car somewhere.” The officers found the truck unoccupied
and parked “just north of the gas station.” Mansfield testified that the truck was parked “[m]aybe less than a block” or
“[m]aybe 40 yards” away from the gas station.
Warner contacted the registered owner of the truck,
who confirmed that he had not authorized anyone to use the
truck or remove it from his garage. The officers called a K-9
unit to assist them. While the officers were waiting for that
unit, Hasbrook emerged from nearby bushes. The officers
arrested her. With the assistance of the K-9 unit, the officers
also located defendant hiding in a dumpster “just north” of
the gas station. Defendant was arrested and taken into custody. Mansfield searched defendant’s person and found a
key fob to the truck in his possession.
The officers noticed two backpacks in the back seat
of the truck. Mansfield called the owner to ask if he had
left backpacks in the truck. The owner replied that he had
not and gave Mansfield permission to search the vehicle.
Mansfield removed the backpacks, and another officer transported them to the police station. According to Mansfield,
3
Because Warner did not testify at the motion to suppress hearing, the
record is minimal with respect to Warner’s interaction with defendant and the
exact progression of events that occurred before Mansfield’s arrival.
496 State v. Lewis

he did not search the backpacks at the scene because he
did not know who owned them. Although Mansfield did not
know who the backpacks belonged to at that time, he testified that it had “crossed [his] mind” that the backpacks
could belong to defendant and Hasbrook. Mansfield did not
speak to defendant or Hasbrook about the backpacks, nor
did any other officer at the scene. The next day, Mansfield
and Warner searched the backpacks. Mansfield testified
that their purpose in searching the backpacks was to determine who they belonged to. The officers discovered evidence
in one of the backpacks linking defendant to a burglary.

The state charged defendant with various crimes
related to that alleged burglary and the theft of the Toyota
Tundra. Defendant moved to suppress the evidence discovered in the backpack, contending that the state unlawfully searched the backpack without a warrant in violation
of Article I, section 9, of the Oregon Constitution and the
Fourth Amendment to the United States Constitution. The
state argued that defendant had abandoned the backpack
when he left it in the stolen car and, therefore, defendant
was not entitled to suppression of the evidence. The state
also contended that, if defendant had not abandoned the
backpack, then the warrantless search was permissible
under the exception to the warrant requirement for lost
property.

In a letter opinion, the trial court denied defendant’s motion, concluding that defendant “abandoned whatever constitutionally protected interest he might have had
in the [backpacks] when he left them with Ms. Hasbrook
in the stolen Tundra.” The court attributed that conclusion to three factors. First, “no police instruction or conduct
caused defendant to separate himself from the [backpacks].”
Second, “[t]he vehicle was not found on a private property
with any apparent connection to defendant.” Third, “[l]eaving unmarked, untagged bags inside someone else’s truck
and walking away, particularly when the truck is stolen, is
conduct that demonstrates a relinquishment of any constitutionally protected right of privacy in the property.” Thus,
according to the court, defendant “did not manifest an intention to maintain control over the property.”
Cite as

306 Or App 492

 (2020)                                               497

          On appeal, defendant assigns error to the trial
court’s denial of his motion to suppress the evidence discovered inside of the backpack. Defendant contends that the
state failed to meet its burden of proving that defendant
relinquished his constitutionally protected rights in the
backpack by abandoning it. Therefore, defendant asserts,
the warrantless search violated defendant’s rights under
Article I, section 9.4 The state reprises its arguments from
the trial court, that defendant abandoned the backpack
when he left it in the truck, and that, if defendant did not
abandon the backpack, then the warrantless search was
permissible under the exception to the warrant requirement
for lost property.
         We begin by addressing the state’s contention that
the search fell within the exception to the warrant requirement for lost property. Article I, section 9, protects people
against unreasonable searches and seizures. Subject to limited exceptions, a warrantless search by the police of a person’s property is per se unreasonable. Bunch,

305 Or App at 65

. Where, as here, the police conduct a warrantless search,
the state bears the burden of proving that the warrantless
search did not violate a protected interest of the defendant.
State v. Cook,

332 Or 601, 608

34 P3d 156

 (2001).
         Under certain conditions, police may search lost
property without a warrant to determine the identity of
the owner. “To search lost property, officers need to 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,

288 Or App 47

, 54,

405 P3d 169

(2017) (quoting State v. Vanburen,

262 Or App 715, 728

327 P3d 555

 (2014)). Lost property is “property which the owner
has unwittingly suffered to pass out of his possession, and
the whereabouts of which he has no knowledge.”

Id.

        Applying the above standard, we conclude that
the search of defendant’s backpack does not fall within
the exception to the warrant requirement for lost property.
Mansfield testified that it had “crossed [his] mind” that the

    4
      Defendant does not argue, as he did to the trial court, that the warrantless
search violated defendant’s rights under the Fourth Amendment.
498                                             State v. Lewis

backpacks might belong to defendant and his friend. That
testimony suggests that, although the owner’s identity may
have been uncertain, Mansfield did not have a subjective
belief that the backpacks were lost. See Bunch,

305 Or App at 66

 (explaining that “uncertainty as to * * * ownership
does not translate into a subjective belief that [the property]
was lost”). And, even assuming that Mansfield did believe
that the backpacks were lost, that belief was not reasonable
under the circumstances. When Mansfield searched defendant’s backpack, he knew that the backpacks were found in
a stolen vehicle and that they did not belong to the vehicle’s
owner. Mansfield also knew that defendant and his friend
were driving that stolen vehicle immediately prior to his discovery of the backpacks. Under those circumstances, it was
not reasonable for Mansfield to believe the backpacks were
lost. Therefore, the search does not fall within the exception
to the warrant requirement for lost property. Because the
state has not presented alternative exceptions to the warrant requirement that apply here, the search was unreasonable in violation of Article I, section 9.
         Having concluded that the warrantless search was
unlawful, we must determine whether that search violated
defendant’s Article I, section 9, rights.

Id. at 66-67

; see also
State v. Tanner,

304 Or 312, 320

745 P2d 757

 (1987) (“The
question of whose privacy rights have been violated is logically separate from the question whether section 9 has
been violated.”). Whether the search of defendant’s backpack violated defendant’s rights under Article I, section 9,
turns on whether defendant had a constitutionally protected
privacy interest in the backpack at the time of the search.
See Bunch,

305 Or App at 67

. “A defendant may abandon
his constitutionally protected interests in property * * * by
voluntarily manifesting an intention to relinquish them, in
which case a warrantless search of the property does not
violate his rights.” State v. Montiel-Delvalle,

304 Or App 699, 706

468 P3d 995

 (2020).
        Here, defendant had constitutionally protected
possessory and privacy interests in the backpack before
Hasbrook drove the truck away with the backpack inside.
See State v. Standish,

197 Or App 96, 99-100

104 P3d 624

,
rev dismissed as improvidently allowed,

339 Or 450

 (2005)
Cite as

306 Or App 492

 (2020)                              499

(“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.”). Thus, the specific issue before us is whether
defendant abandoned his constitutionally protected interests after he stepped out of the car and Hasbrook drove
away.
         “[T]he determination whether a defendant has relinquished a constitutionally protected interest in an article
of property involves both factual and legal questions, which
this court reviews in the same manner that it reviews other
search or seizure questions arising under Article I, section 9.”
Cook,

332 Or at 607

. 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.

Id.

 The state bears the burden of proving by
a preponderance of the evidence that a defendant has abandoned his constitutionally protected interests in an article
of property. State v. Dickson,

173 Or App 567, 571

24 P3d 909

, rev den,

332 Or 559

 (2001).
          “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.” Bunch,

305 Or App at 67

 (citing State v. Brown,

348 Or 293, 302

232 P3d 962

 (2010)). Several factors are relevant to that determination, including: (1) “whether the defendant separated himself
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.” State v. Ipsen (A157082),

288 Or App 395

, 399-
400,

406 P3d 105

 (2017) (internal quotation marks omitted).
500                                            State v. Lewis

         Before considering the present case, we briefly summarize several cases which aid in our application of the above
factors. In State v. Brown, we concluded that the defendant
did not abandon a McDonald’s bag that he set down while
conversing with a police officer and then left in a parking lot
when he went across the street with that officer.

273 Or App 347, 352

359 P3d 413

 (2015). We explained that the defendant made no statements disclaiming his interests in the
bag and that “setting what appears to be a sack lunch and
a drink on a nearby flat surface while carrying on a conversation is not conduct that relinquishes all constitutionally
protected interests in the property.”

Id. at 353

. We acknowledged that the “low-value” nature of the bag “could point
toward a conclusion of abandonment” but determined that
“that one circumstance, when viewed in conjunction with all
of the other circumstances” was “not sufficient to support
the conclusion that defendant relinquished all constitutionally protected interests in the bag.”

Id. at 354

. We further
noted that, when the defendant moved across the street with
the officer, he “did not move far from the bag” and “had been
separated from the bag for only 10 to 20 minutes.”

Id. at 353

.
Under those circumstances, it was as likely that the defendant left the bag “out of inadvertence” and “did not intend to
give up his interests in the bag” as it was that the defendant
“discarded the bag.”

Id.

         In State v. Kendall, we held that, considering “the
entire circumstances,” the defendant did not abandon his
protected interests in his bicycle or the bag affixed to it
when he went inside of a house, leaving the bike outside on
an adjoining lot.

173 Or App 487, 491

24 P3d 914

 (2001).
We reasoned that, although “defendant separated himself
from his possessions while being pursued by the police,
he placed those possessions in the bushes on private property” as opposed to a public place “where it was likely that
members of the public would inspect them.”

Id. at 491-92

.
Additionally, we concluded that “the nature of the property
involved” was significant because it was “common for a person to leave property of [that] nature outdoors, unattended.”

Id. at 492

.
         In contrast, we concluded the defendant did abandon his property in Dickson,

173 Or App at 576

. There, the
Cite as

306 Or App 492

 (2020)                             501

defendant saw the police approaching, ran, and dropped his
backpack “in plain sight of officers in close pursuit of him.”
Id. at 575. We explained that the defendant did not take “any
action indicating that he was attempting to maintain control of the backpack, such as hiding it in a place from which
he might later be able to retrieve it.” Id. Rather, when the
defendant dropped the backpack in front of the officers who
pursued him, “[t]hat circumstance made it objectively likely
that others would inspect the backpack” and indicated that
the defendant “did not intend to reclaim the backpack.” Id.
          We conclude that, considering each factor and the
totality of the circumstances, defendant did not unequivocally manifest an intention to relinquish his constitutionally protected interests in the backpack. We consider each
factor in turn, but the key inquiry remains whether defendant, through words or conduct, unequivocally manifested
an intention to relinquish his constitutionally protected
interests. Bunch,

305 Or App at 69

 (“Abandonment requires
an unequivocal manifestation of an intention to relinquish
all constitutionally protected interests in the affected property.”); see also Cook,

332 Or at 608

 (“[F]or constitutional
purposes, the question to be resolved * * * is whether the
defendant’s statements and conduct demonstrated that he
relinquished all constitutionally protected interests in the
articles of property.”).
        Here, the state correctly asserts that defendant’s
separation from the backpack was not the result of police
instruction or illegal police conduct. Defendant left the
backpack in plain view in the back seat of a stolen truck
to which defendant had no legal right. Although that truck
was parked on private property—the gas station parking
lot—that property was open to the public.
         Nevertheless, defendant’s conduct manifested an
intention to maintain control of his backpack. Initially,
defendant left his backpack in a truck while shopping at a
convenience store adjoining the gas station where the truck
was parked. Defendant’s choice to leave the backpack in a
location that was generally inaccessible to the public, but
would likely remain accessible to him, reflects an intent
to reclaim the backpack. Like the defendant in Brown,
502                                            State v. Lewis

defendant made no statements disclaiming ownership of the
backpack, and he remained physically near the backpack—
he did not leave the gas station until after Hasbrook drove
away. And, as in Brown and Kendall, defendant’s treatment
of his property was common—people regularly leave items
in parked cars while shopping or running errands close by
with the expectation that those items will not be subject to
inspection. See Kendall,

173 Or App at 492

 (noting that it is
common to leave vehicles unattended outdoors). Such behavior reflects an intent to maintain control over the property,
not abandon it.
         Those same facts—defendant’s proximity to the car
and backpack, the placement of the backpack in an apparently secure yet accessible location, and defendant’s treatment of the backpack in an ordinary manner—lead us to
conclude that defendant did not give up his rights to control the disposition of the property. “Nothing in the case
law under Article I, section 9, suggests that a citizen must
keep his hands on his property at all times—even in public
places—in order to retain a protected interest in that property.” Brown,

273 Or App at 353

.
         Finally, defendant did not leave the backpack
under circumstances that made it likely that others would
inspect it. As noted, the backpack was in a car, and thus
inaccessible to passersby and somewhat shielded from public view. Moreover, the circumstances here are unlike those
in Dickson, where the defendant dropped his backpack “in
plain sight of officers in close pursuit of him.” 173 Or App at
575. Under those circumstances, the defendant’s behavior
indicated to the police that the backpack likely contained
evidence of a crime. That was not so in the present case. The
officers did not discover defendant’s backpack while in “close
pursuit” of defendant as he fled.
         The state asserts that defendant’s willingness to
leave the backpack in a stolen vehicle demonstrates his
intention to relinquish his constitutional interests in the
backpack. According to the state, that is so because defendant “had no right to the truck” and, thus, “had no reason
to believe the truck was a secure location.” In support of
its argument, the state points to Stubblefield. There, the
Cite as

306 Or App 492

 (2020)                               503

defendant crashed a stolen truck while attempting to elude
a police officer in close pursuit. State v. Stubblefield,

279 Or App 483, 484

380 P3d 1126

, rev den,

360 Or 697

 (2016).
After the crash, the officer ordered the defendant to exit the
truck, but the defendant ran from the truck instead. We held
that the defendant had abandoned closed containers within
the truck, because the defendant “left the containers in a
stolen truck—a location where defendant would have had
no lawful authority to retrieve them, absent the (unlikely)
assistance of the truck’s owner, something that defendant
would have known when he decided to leave the containers
behind.” Id. at 489.

         The determinative facts in Stubblefield are distinguishable from those in the present case. There, the defendant left the crashed car unoccupied while fleeing from an
officer in pursuit. The Stubblefield defendant would have
known that the stolen vehicle would be towed and subject to
a search in the immediate future. Under the circumstances
of the present case, defendant had far less reason to believe
that the vehicle would be subject to an immediate search or
seizure by the police. Therefore, his act of leaving the backpack in a truck, even a stolen one, does not unequivocally
indicate defendant’s intent to abandon it.

         We reach the same result when considering defendant’s second separation from the backpack, when Hasbrook
drove the truck away from the gas station. Again, we note that
the applicable test is whether defendant “voluntarily manifest[ed] an intention to relinquish [his protected interests].”
Montiel-Delvalle,

304 Or App at 706

. The state contends that
defendant “acceded to his companion driving away in [the
truck],” and, therefore, that his failure to act indicated defendant’s intent to relinquish his protected interests in the backpack. We disagree. Defendant’s behavior here—submitting
to an ongoing DUII investigation—does not unequivocally
reflect an intent to abandon his property. Nor does defendant’s failure to verbally claim the backpack reflect such an
intent, because “although a defendant’s statement disclaiming any interest in an object may suffice to communicate
such an intention, a defendant’s silence does not.” State v.
Jones,

280 Or App 135, 139

380 P3d 1132

 (2016).
504                                                          State v. Lewis

         In sum, we conclude that defendant did not unequivocally manifest an intention to relinquish his constitutionally protected interests in his backpack when he left it in the
truck. Because the state did not meet its burden of proving
that the search of that backpack was lawful, the warrantless search violated defendant’s Article I, section 9, rights,
and evidence discovered as a result of that search must be
suppressed.5
           Reversed and remanded.




   5
     In appeals arising from conditional pleas, we have “consistently declined to
engage in a harmless error analysis.” State v. Leach,

294 Or App 639, 646

432 P3d 310

 (2018).

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