587
Argued and submitted February 25, 2020, affirmed April 14, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEPH LYNN PEEK,
Defendant-Appellant.
Multnomah County Circuit Court
17CR70954; A168389
485 P3d 292
Defendant crashed his motorcycle onto a bike path, littering the path with
debris. Defendant was taken to a hospital, and Officer Byrd remained on the
crash scene. When Byrd picked defendant’s motorcycle jacket up off the ground to
move it out of the path, he noticed that the jacket was heavier on one side than the
other. Upon shining a flashlight onto the open jacket pocket, Byrd discovered a
gun. The state charged defendant with, among other offenses, felon in possession
of a firearm. Defendant moved to suppress the evidence of the firearm, contending that Byrd unlawfully seized the jacket by picking it up from the bike path
and unlawfully searched the jacket by shining the flashlight on the open pocket
to see the gun, in violation of Article I, section 9, of the Oregon Constitution. The
trial court denied the motion, and defendant entered a conditional guilty plea,
preserving the right to appeal the denial of his motion to suppress. Defendant
appeals and renews the arguments that he made below. Held: The trial court
did not err in denying the motion. Moving defendant’s possessions off of a public
thoroughfare when defendant was not present was not a seizure, because it was
within the bounds of social norms and did not interfere with defendant’s possessory interest in his property. Byrd’s discovery of the gun was not a search,
because evidence at trial suggested that the gun would have been visible in daylight without the aid of a flashlight.
Affirmed.
John A. Wittmayer, Judge.
Erik Blumenthal, 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.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
588 State v. Peek
LAGESEN, P. J.
Affirmed.
Cite as 310 Or App 587 (2021) 589
LAGESEN, P. J.
Defendant appeals a judgment of conviction for,
among other things, one count of felon in possession of a
firearm, ORS 166.270. He assigns error to the trial court’s
denial of his motion to suppress evidence of the gun that
officers found in his jacket pocket after he was injured in a
motorcycle crash. We review by “accepting the trial court’s
supported factual findings and determining ‘whether the
trial court applied legal principles correctly to those facts.’ ”
State v. Soto-Navarro, 309 Or App 218, 223,
482 P3d 150
(2021) (quoting State v. Ehly,
317 Or 66, 74-75,
854 P2d 421
(1993)). “In the absence of an express factual finding, we presume that the trial court found facts consistent with its ultimate conclusion.” State v. Gatto,
304 Or App 210, 212,
466
P3d 981 (2020). “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.”
Id. (internal quotation marks omitted).
Applying that standard of review, we affirm.
Not long after midnight on a late September morning, defendant crashed his motorcycle, landing on the I-205
bike path near Glisan Street in Portland. Officer Byrd of the
Portland Police Bureau, among others, was dispatched to
the scene of the accident. When he arrived at about 10 minutes before 1:00 a.m. (by motorcycle himself), EMTs were
attending to defendant and had taken off defendant’s leather
riding jacket. Debris and other items, including defendant’s
motorcycle, helmet, a shoe, and defendant’s jacket, littered
the bike path. Other officers secured the crash scene while
Byrd interviewed a witness to the crash, Lang. As Byrd was
interviewing Lang, the EMTs transported defendant to the
hospital in an ambulance.
After he completed the interview, Byrd diagrammed
and photographed the crash scene, working with a trainee,
Officer Winfield. Then, Byrd began to clean up the scene;
the items in the bike path posed a hazard for people riding
their bikes on the path. In addition to the need to clear the
hazard, Byrd also thought that defendant would likely want
590 State v. Peek
his leather jacket and helmet returned to him and planned
to take them to the hospital.
When Byrd picked the jacket up off the ground to
move it out of the path, he noticed that “it was considerably heavier on one side” than he expected based on his
own experience as a motorcyclist; in Byrd’s experience, “if
you have a motorcycle jacket usually it’s pretty balanced or
things on motorcycles are usually pretty balanced.” Then,
when Byrd set the jacket down on the concrete Jersey barrier separating the bike path from the roadway, he heard
the “very familiar thud” reminiscent of the sounds “when
clunky metal, heavy things hit other hard cement things.”
The sound made Byrd think that there probably
was a firearm in the jacket. Borrowing Winfield’s flashlight,
he shone it on the jacket’s front pocket, which was open, and
saw the handle and the back of the slide of a gun. Byrd did
not open the pocket, move it, or do anything else to it to
see the gun, apart from shining the flashlight into it. Byrd
“could probably have seen the gun in the pocket had [he]
simply looked but [he] wasn’t looking for it at first.” Once he
saw that it was a gun, he removed it from the jacket pocket
and, upon determining that it was loaded, unloaded it.
Meanwhile, a blood test at the hospital revealed
that defendant’s blood alcohol content was 0.175 percent.
As a result of the incident, the state charged defendant with one count of felon in possession of a firearm
(Count 1); one count of driving under the influence of intoxicants (Count 2); and reckless driving (Count 3). Defendant
pleaded guilty to Count 2 and entered diversion. He then
moved to suppress the evidence of the firearm, contending
that Byrd unlawfully seized the leather jacket by picking it
up from the bike path, in violation of Article I, section 9, of
the Oregon Constitution and the Fourth Amendment to the
United States Constitution, and also that Byrd unlawfully
searched the jacket by shining the flashlight on the open
pocket to see the gun, also in violation of Article I, section 9,
and the Fourth Amendment. Defendant did not dispute
that, if Byrd acted permissibly up until he saw the gun, then
Byrd’s seizure at that point was permissible.
Cite as 310 Or App 587 (2021) 591
The trial court denied the motion. Finding Byrd’s
account of his conduct credible, it first ruled that Byrd’s act
of picking up the jacket and moving it to the Jersey barrier
did not amount to a seizure. The court ruled further that
Byrd did not search the jacket because, when the jacket was
“[s]et down on a Jersey barrier, the distinctive sound of the
firearm, announced its presence in the pocket of the jacket,
and the officer was able to see it without opening the jacket
pocket.” In the alternative, the court ruled that any seizure
occurring at the time that Byrd picked up the jacket was
permissible incident to defendant’s arrest for DUII.
After the trial court ruled on the motion to suppress, defendant entered a conditional guilty plea agreement, under which defendant conditionally pleaded guilty to
Counts 1 and 3 and reserved the right to pursue this appeal
of the denial of his motion to suppress.
On appeal, defendant reiterates the state constitutional arguments he made below, contending that the trial
court erred when it determined that (1) Byrd’s act of picking
up the jacket was not a seizure under Article I, section 9,
and (2) Byrd’s act of shining the flashlight on the jacket’s
pocket was not a search under Article I, section 9. He also
argues that the court erred in its alternative conclusion
that any seizure was justified incident to arrest. The state
responds that Byrd’s act of picking up the jacket was not a
seizure as that term has been defined under Article I, section 9; that, if there was a seizure, it was reasonable and not
unconstitutional; and that Byrd’s use of the flashlight did
not amount to an unlawful search on the facts of this case.
We agree with the state that, on these facts, no search or
seizure occurred.
For purposes of Article I, section 9, “[A] ‘seizure’
of property ‘occurs when an officer significantly interferes
with a person’s possessory or ownership interest in property.’ ” State v. Edwards, 304 Or App 293, 296,
466 P3d 1034
(2020) (quoting State v. Fulmer,
366 Or 224, 229,
460 P3d
486 (2020)). We have located no case holding that the conduct of moving possessions scattered by an accident across
a public thoroughfare amounts to a significant interference
with an individual’s property interests in those possessions,
592 State v. Peek
or holding that an individual’s possessory or ownership
interest in property safeguards an interest in having the
property remain, undisturbed, on a public bike path or roadway. Beyond that, where, as here, the owner is not present,
it would be well within social norms for a person—officer
or otherwise—to move property obstructing a public thoroughfare, making it difficult to conclude that Byrd’s conduct
of moving the jacket to the Jersey barrier amounted to a
significant interference with defendant’s property interests.
See State v. Sholedice/Smith,
364 Or 146, 162,
431 P3d 386
(2018), adh’d to as modified on recons,
364 Or 575,
437 P3d
1142 (2019) (concluding that federal postal inspector did not
significantly interfere with the defendants’ property interests in mailed package by taking it out of hamper full of
mail for dog to sniff for drugs); cf. State v. Goldberg,
309 Or
App 660, 668-69,
483 P3d 671 (2021) (concluding that officer’s conduct of closely inspecting car bumper exceeded the
scope of homeowner’s implied consent to enter the property
because that conduct “exceeded the social norms that one
reasonably expects of visitors and exceeded the scope of consent that a reasonable property owner holds out to those visitors seeking to make contact”). Simply put, individuals’ protected property interests in their possessions do not extend
to a protected interest in the placement of those possessions
in a public path that would preclude an officer from moving
that property when the individuals are not present and able
to do so themselves.1
As for whether Byrd searched defendant’s jacket,
that depends on whether the gun was in Byrd’s plain view.
Whether it was in Byrd’s plain view in this instance turns
on the nature of Byrd’s use of the flashlight. If the flashlight
merely enabled Byrd to see what would have been visible to
him in daylight, then Byrd did not conduct a search. State v.
Faulkner, 102 Or App 417, 420-21,
794 P2d 821, rev den,
310
Or 422 (1990). If, however, Byrd would not have been able to
see the gun without the use of a flashlight whether it was
1
Whether the situation might be different if defendant had been present at
the scene and capable of moving his own property from the bike path is a question for another day. See Fulmer, 366 Or at 235 (holding that Article I, section 9,
requires officers to notify occupants of a car to be impounded that they have the
right to remove their personal possessions from the car).
Cite as
310 Or App 587 (2021) 593
day or night, then he conducted a search. State v. Reed,
169
Or App 456, 463,
9 P3d 738 (2000).
This question—whether Byrd could have seen the
gun without the flashlight in daylight—is a factual one and,
in ruling that Byrd did not conduct a search through his
flashlight use, the trial court necessarily found that the
flashlight did not let Byrd see anything more than what he
would have seen had he been looking at the jacket in daylight. That finding is supported by the record: Byrd testified
that the pocket of the jacket was open, that he did not manipulate the pocket in any way when he trained the flashlight
on it, and that, even without the flashlight, he “could probably have seen the gun in the pocket had [he] simply looked
but [he] wasn’t looking for it at first.” All of that allows for
the reasonable inference that the gun would have been visible to Byrd through the open pocket in the daylight, such
that his use of the flashlight did not amount to a search.
In sum, under these circumstances, Byrd did not
seize defendant’s jacket and he did not search it. The trial
court, therefore, correctly denied defendant’s motion to
suppress.
Affirmed.
