State v. Laney

                                      509

   Argued and submitted February 22, 2021, affirmed March 23, petition for
                 review denied July 28, 2022 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  MICHAEL LEROY LANEY,
                       aka Michael Laney,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      18CR26017; A171485
                                  

     Defendant appeals his convictions on two counts of first-degree sexual abuse.
While moving out of a home that his daughter and her family were moving into,
defendant left five computers in the garage and asked his then-son-in-law Parks
to destroy them. Defendant and Parks never spoke about the matter again.
Parks failed to follow through and eventually decided to keep the hard drives
for his own use. At one point, Parks connected the hard drives to his own computer to see whether they still worked, and he saw a photo of a naked young
girl jumping into a pool at a home that defendant used to own. Approximately
six years after defendant left the computers with Parks, the police began investigating an allegation by defendant’s granddaughter that defendant had raped
her as a child. Parks told the police about the photo that he had seen and turned
over the hard drives. The police obtained a warrant, searched the hard drives,
and found numerous photos of naked girls and women. Before trial, defendant
moved to suppress, arguing that the search violated Article I, section 9, of the
Oregon Constitution. In response, the state argued, among other things, that
defendant had abandoned his property interest in the hard drives before the
police searched them. The trial court agreed and denied the motion to suppress.
Held: The court did not err by denying defendant’s motion to suppress. Some
of the trial court’s reasoning is no longer viable in light of State v. Lien/
Wilverding, 

, 

 (2019), which was decided shortly after
defendant’s trial. However, considering all of the relevant factors, the court’s
conclusion—that defendant abandoned his property interest in the hard drives—
was correct.
    Affirmed.



    Benjamin N. Souede, Judge.
   Stephen A. Houze argued the cause and filed the reply
brief for appellant. On the opening brief was Jacob G. Houze.
   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.
510                                       State v. Laney

  Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
  AOYAGI, J.
  Affirmed.
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           AOYAGI, J.
          Defendant was convicted of two counts of first-degree sexual abuse. On appeal, in his third assignment
of error, defendant contends that the trial court erred by
denying his motion to suppress photos found on a computer
hard drive that defendant had given to his then-son-in-law
six years earlier with instructions to destroy. We write only
to address that issue. For the reasons explained below, we
conclude that the trial court correctly denied the motion to
suppress, because defendant had abandoned his possessory
and privacy interests in the hard drive, constitutionally
speaking, by the time it was searched. As for defendant’s
other assignments of error, we reject the first and second
assignments of error in light of our resolution of the third
assignment. We reject the fourth assignment of error, in
which defendant challenges the denial of his motion for judgment of acquittal on both charges, because the evidence was
legally sufficient for defendant to be found guilty. We reject
the fifth assignment of error, in which defendant argues that
the trial court erred by striking certain testimony, because
the court did not err in striking that testimony as irrelevant. Accordingly, we affirm.
                                  FACTS1
         Parks married defendant’s daughter. Their daughter, E, was born in 2002.
         In late 2010 or early 2011, defendant and his wife
were moving from Oregon to California, and Parks and his
family were moving into the house that defendant and his
wife were vacating. While defendant was moving out, he
and Parks were standing in the garage. Defendant pointed
to five computers that were sitting in the garage, and they
“talked about recycling them.” Parks does not remember
whether defendant asked him to do it or whether he volunteered. Parks also does not remember whether they used
the term “recycling,” but the idea was to dispose of them.
Defendant asked Parks “to remove the hard drives and to

    1
      The only relevant witness at the pretrial hearing was Parks. Except for
procedural facts, or as otherwise noted, the facts herein are taken from Parks’s
pretrial testimony.
512                                             State v. Laney

destroy them with a hammer so that they were, you know,
unusable or unreadable.” They did not discuss why defendant wanted them destroyed. Parks assumed that it was a
“privacy type of thing,” in that Parks uses computers, knows
that “stuff can be stored on computers,” and thinks it is “better to destroy it so other people can’t look at it.” He did not
perceive defendant to be wanting to destroy anything specific on the computers. Parks said or indicated “okay.” At
that time, it was Parks’s intention to destroy the computers.
          Parks’s conversation with defendant about the computers “wasn’t a long conversation” and “was just part of
the, let’s do this and let’s do that type of stuff of moving.”
Parks and his family had generally been helping defendant
and his wife with their move over a period of weeks, including helping with packing and moving boxes. Defendant had
asked Parks to get rid of a number of items that he and
his wife did not want to take with them, including unusable
household items and some old shotguns.
        Parks and his family were going through a difficult
time in the period when defendant and his wife were moving to California. Their house was in foreclosure, they were
moving, and Parks had just started a new job that had him
working 50 to 60 hours a week. Dealing with the computers
was not his priority, so he put them in his storage unit.
         In 2012, Parks separated from his wife and moved
back to their old house, which was still in foreclosure. In late
2014 or early 2015, Parks decided to empty out their storage
unit. He found the computers, thought it was “silly” that he
was hanging onto them, and remembered that defendant
had asked him to take out the hard drives. Parks removed
the hard drives from four computers and, except for the hard
drives, recycled those four computers at an e-waste site.
He kept the fifth computer, as well as the four hard drives,
thinking he might be able to use them for work. Parks is a
digital artist, so “hard drive space is important” to him, and
hard drives were more expensive then than they are today.
Parks hooked up each of the hard drives to his computer
to see if they still worked. In the process, he looked at the
content of one drive and saw a photo of a naked little girl,
aged five or so, jumping off a diving board into a pool. Parks
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recognized the house as one that defendant used to own in
California. He was disturbed by the photo. He noticed that
the drive contained other photo files, but he did not open
them, because the one photo bothered him and he did not
want to see anything else.
          After Parks took the computers out of his storage
unit and recycled the four boxes (less hard drives), Parks
kept the fifth computer and the four hard drives at his old
house that was still in foreclosure—where he had been staying during the separation—and later put them into his new
storage unit when he moved from the foreclosed house into a
rental. Parks never talked to defendant about the fact that
he still had the computers, and defendant never asked about
them. After 2012, when Parks and his wife separated, Parks
mostly lost touch with defendant, communicating with him
maybe once.
         In 2017, E accused defendant of raping her as a
child. During the ensuing investigation, Parks mentioned
the hard drives to a detective. Parks initially denied looking
at any files, but he later told the detective about the photo
he had seen of a naked little girl jumping into defendant’s
pool. Parks consented to the police taking the hard drives.
Defendant had not talked to Parks about the hard drives in
the six or so years since leaving them in his old garage. The
police obtained a search warrant and, on one of the drives,
found numerous photos of naked prepubescent and postpubescent girls.
          Defendant was indicted on 10 counts of first-degree
rape and first-degree sexual abuse. Before trial, he moved
to suppress the photos. The state opposed the motion, and it
filed its own motion to admit the photos as evidence of defendant’s sexual interest in children. The state argued, among
other things, that defendant had abandoned his property
interest in the hard drives before the police searched them.
        The trial court agreed with the state on abandonment.
The court described the evidence as showing that defendant
had asked Parks to destroy the hard drives left in the garage
while defendant was moving out, that Parks “nodded or otherwise softly assented or that he certainly acknowledged the
514                                             State v. Laney

request,” and that defendant never said anything more about
it. The court concluded that, whatever defendant’s motive was
for asking Parks to destroy the hard drives, his actions constituted abandonment, as he relinquished both his “possessory
and privacy interest in the hard drives.” Defendant voluntarily
“turned over their physical control entirely to Mr. Parks,”
knowing that his request to destroy them “wasn’t binding,”
and having “no particular reason to believe that things would
go exactly as he asked.” As the court put it, defendant “had
made a request” of a family member, and “everyone has the
experience of knowing that family members don’t always do
what we ask them to do.” The court therefore granted the
state’s motion and, relatedly, denied defendant’s motion to
suppress. The court also denied a separate motion in which
defendant challenged the warrant, reasoning, among other
things, that defendant could not challenge a warrant pertaining to property that he had abandoned.
         The trial court ruled on the admission of the photos
on April 30. The charges against defendant were then tried
to the court over several days (defendant had waived his
right to a jury trial), and the court announced its findings
on May 7. The court found defendant guilty of four counts of
first-degree sexual abuse, which, after merger, resulted in
two convictions. It acquitted him of the remaining charges.
         At defendant’s sentencing hearing a month later,
the court and the parties discussed the fact that, on May 9,
the Oregon Supreme Court had issued its opinion in State
v. Lien/Wilverding, 

, 

 (2019). Both
parties agreed that Lien/Wilverding was a significant new
decision on abandonment of property rights under Article I,
section 9, but they disagreed as to its import. Defendant
argued—in connection with requesting a stay of execution
of his sentence—that, given Lien/Wilverding, the Court of
Appeals would likely overturn the trial court’s ruling on the
admission of the photos. The state disagreed, arguing that
Lien/Wilverding was distinguishable, that the trial court’s
abandonment ruling was correct even though some of its
specific reasoning was no longer valid, and that the court’s
warrant ruling was an independent basis for admission of
the photos in any event. Ultimately, the trial court denied
defendant’s motion. The court expressed uncertainty as to
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what the Court of Appeals would make of Lien/Wilverding,
as far as affirming or reversing the court’s abandonment
ruling in this case—describing the situation as a “jump
ball”—but denied the requested stay.2
                                 ANALYSIS
         Article I, section 9, of the Oregon Constitution protects people against unreasonable searches and seizures. A
person who “has actual or constructive possession of property immediately before it is searched … has a constitutionally protected possessory interest in that property.”
State v. Standish, 

, 

,
rev dismissed as improvidently allowed, 

 (2005).
A person also may have a constitutionally protected privacy
interest in property, even without a possessory interest.
Lien/Wilverding, 

 (recognizing two discrete
interests). At the same time, a person may abandon a constitutionally protected property interest by voluntarily manifesting the intention to do so. State v. Cook, 

, 

 (2001). If a person has abandoned any and
all constitutional interest in an item of property, the police
need not obtain a warrant to search or seize that property—
and, if the police do obtain a warrant, as a precaution or
otherwise, the person who abandoned their interest is not in
a position to challenge the warrant. See 

        Defendant contends that the trial court erred in
ruling that, for purposes of Article I, section 9, he abandoned his property interest in the hard drive on which the
photos of naked children were found.3 In response, the state

     2
       The stay issue is not relevant on appeal. We mention the discussion that
took place at the sentencing hearing primarily because, in his reply brief, defendant asserts that the prosecutor “conceded” at the sentencing hearing “that the
central premise of the State’s abandonment argument was explicitly disavowed
by the Oregon Supreme Court in [Lien/Wilverding],” and he suggests the state
has acted improperly by arguing on appeal that Lien/Wilverding changed the
abandonment analysis but does not change the ultimate result in this case. We
see nothing improper in the state’s argument on appeal, nor do we view it as conflicting with the prosecutor’s remarks at the sentencing hearing.
     3
       Defendant also relies on the Fourth Amendment to the United States
Constitution, but he makes no arguments unique to the Fourth Amendment. See
State v. Dickson, 

, 

, rev den, 

 (2001) (recognizing that the Oregon and federal standards are similar). We therefore limit
our written discussion to Article I, section 9.
516                                             State v. Laney

maintains that the trial court’s ruling was correct, although
it acknowledges that some of the court’s expressed reasoning is no longer viable, in that it relied on a reading of State
v. Howard/Dawson, 

, 

 (2007), overruled by State v. Lien/Wilverding, 

, 

(2019), and State v. Purvis, 

, 

 (1968),
overruled by State v. Lien/Wilverding, 

, 

 (2019), that was disavowed in Lien/Wilverding.
         Determining “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,

. We defer to the trial court’s findings of fact
if supported by the evidence but determine as a matter of
law whether those facts are sufficient to constitute abandonment. State v. Lewis, 

, 

(2020). It is the state’s burden to prove by a preponderance
of the evidence that a defendant abandoned his interest in a
given item of property. 

         We have previously identified six factors that may
be relevant in assessing abandonment: (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 attempted to hide the property
or otherwise manifest to the police an intention of maintaining control over it; (4) whether the defendant left the
property under circumstances that make it objectively
likely that others will inspect it; (5) whether the defendant
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, 

, 399-400, 

(2017).
         Not all of those factors will be relevant in every
case—it depends on the circumstances—nor is any one factor dispositive. See State v. Bunch, 

, 

 (2020). Moreover, because many abandonment cases
involve situations in which a person is separated from property during a police encounter or leaves property in a public
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place,4 some factors are phrased in a way better suited to
those scenarios, but they may still reflect underlying principles, in which case we look to the underlying principles.
See id. at 69 (considering all six factors but noting that most
were not “directly relevant” to the case, “because they relate
to a circumstance where the police recover property after the
person has left it behind”). Lastly, we note that some factors
may bear more on the possessory interest, while others may
bear more on the privacy interest.5 Ultimately, we “examine
the totality of the circumstances” to determine whether the
defendant “has abandoned protected possessory or privacy
interests.” State v. Kauffman, 

, 

 (1999), rev den, 

 (2000).
         Here, defendant summarily asserts that all of the
Ipsen factors, except the first factor, favor him. We are unpersuaded. In our view, the state presented sufficient evidence
to prove abandonment by a preponderance of the evidence,
taking into account the relevant Ipsen factors and the totality of the circumstances.
         One factor clearly favors defendant—that he left the
computers on private property. That is a significant fact that,
in appropriate circumstances, would strongly suggest an
ongoing property interest. In these circumstances, however,
the other factors outweigh that fact. To begin with, defendant voluntarily separated himself from the computers. He
could have taken them to California, or to the dump, but
instead he voluntarily left them in the garage of the house
    4
      See Ipsen, 288 Or App at 396 (hidden camera left plugged into outlet near
the sink in a coffee shop bathroom); see also, e.g., State v. Lewis, 

, 

 (2020) (backpack left on the back seat of a stolen truck parked in
a gas station parking lot); State v. Montiel-Delvalle, 

, 

, rev den, 

 (2020) (damaged vehicle left in a public intersection);
State v. Bernabo, 

, 

 (2008) (sunglasses case left on
the ground near a public trash can); State v. Stafford, 

, 

 (2002), rev den, 

 (2003) (wadded-up paper bag left in the communal
stairway of a fourplex).
    5
      As discussed more later in the opinion, the Supreme Court’s recent decision
in Lien/Wilverding draws attention to the potential divergence between a person’s possessory and privacy interests in property. See Lien/Wilverding, 

 n 2 (“[A]s our precedents reflect, a person’s possessory interest in property
is not the touchstone of whether a person has a privacy interest protected by
Article I, section 9.”); but see also 

 (Kistler, J., dissenting) (“Ordinarily,
a person who gives up all possessory interests in property retains no privacy
interest in it.”).
518                                           State v. Laney

that he was vacating and where he would have no further
ability to control what happened to them. Next, although
minimally relevant here, defendant did not hide the computers somewhere that Parks and his family would be unlikely
to find them, as he might have done if he intended to return
for them and did not want them inspected in the meantime.
He left them in plain view in the garage, drew Parks’s attention to them, and left their control and disposition to Parks,
albeit with instructions.
         The fourth and sixth factors—which are related
here—are the most significant. We agree with the state that,
under the circumstances, the likelihood of Parks not following defendant’s instructions, particularly in the absence of
any further discussion, was sufficiently high to weigh in
favor of abandonment. Relatedly, although defendant asked
Parks to destroy and dispose of the computers, he fundamentally gave up the right to control their disposition once
he left them in the garage.
         Several facts are relevant to the foregoing points.
First, defendant asked his son-in-law to do him a favor—
to destroy and dispose of five unwanted computers that
he did not want to take to California with him—just as he
had asked Parks to dispose of certain unusable household
items and some old shotguns that he did not want to take.
Parks did not work for a disposal or recycling company, nor
was defendant paying him for a contracted service. Parks
was simply helping a family member with an out-of-state
move. Second, Parks acknowledged defendant’s request—
he “nodded or otherwise softly assented”—and subjectively
intended to follow through at the time. However, Parks did
not give defendant any strong assurances, nor did defendant
seek any strong assurances. There is no evidence that defendant had reason to believe that Parks was unusually reliable, no matter how weakly he committed to a task. Third,
it is generally foreseeable that a family member might not
follow through on a favor. As the trial court put it, “everyone has the experience of knowing that family members
don’t always do what we ask them to do.” Despite that very
real possibility, defendant never spoke with Parks about the
computers again. Parks had a lot on his plate when defendant made his request, and, the next year, he separated
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from defendant’s daughter and moved out of the house. At
no point did defendant check with Parks to see if he had
gotten rid of the computers. Not only was it entirely feasible
that Parks might have forgotten or failed to follow through,
it would not be particularly surprising for a family member to decide to keep an unwanted item that another family
member had left to be discarded.
         This case bears some similarity to Kauffman. There,
the defendant’s vehicle left the road, crossed railroad tracks,
and rolled over. 

. Another vehicle stopped
to offer assistance. 

 The defendant asked two boys who
were passengers in that vehicle for help removing items
from his car. 

 He then asked one of the boys to take a
large blue duffel bag that he had removed from his car and
hide it in the bushes, which the boy did. 

 When police
officers arrived shortly thereafter to investigate the crash,
the boys told them about the hidden bag. 

.
The officers retrieved the bag, searched it, and found illegal
drugs. 

. We held that the trial court did not err in
denying suppression of the evidence, because the defendant
had abandoned his possessory interest in the bag before the
police searched it. 

. The defendant “surrendered
any control that he may have had in the bag when he chose
to turn it over to strangers and then walk off down the railroad tracks,” at which point the boys “were in a position to
follow defendant’s instructions, leave the bag near defendant’s vehicle or, as they did, hide it and then report its location to the appropriate authorities when they arrived on the
scene.” 

        Here, defendant may have expected Parks to destroy
the computers as defendant had requested. However, that
result was not certain, defendant chose to take the risk that
Parks would not act as instructed, and defendant never did
anything to follow up or reassert control over the computers.
In turning over the computers to Parks in the manner that
he did and then simply leaving for California, defendant
gave up the right to control their disposition.6 And, even if
    6
      At one point, defendant characterizes his leaving the computers with Parks
as a “bailment.” That characterization is inapt on these facts. See Kantola v.
Lovell Auto Co., 

, 

 (1937) (A bailment is “a delivery
520                                                          State v. Laney

defendant arguably did not abandon his privacy interest
in the computers at the very moment that he turned them
over to Parks, he had done so by the time that the police
searched them, which was at least six years after defendant
left them behind—six years during which defendant never
once followed up with Parks. Defendant refers to the “sanctity of electronic devices” and points to Parks’s unspoken
assumption that defendant wanted the computers destroyed
for commonsense “privacy” reasons. However, we are unpersuaded that electronic devices are so unique that a person’s
privacy right in their contents can never be found to have
been abandoned.
         Finally, we consider the effect of the Supreme
Court’s recent decision in Lien/Wilverding.7 In its pretrial
arguments, the state compared the computers in this case
to abandoned garbage, citing Howard/Dawson, 342 Or at
638—in which the Supreme Court held that it did not violate Article I, section 9, when the police went through the
defendant’s garbage after the sanitation company picked it
up on the regularly scheduled pick-up day and delivered it to
the police—and Purvis, 249 Or 404—in which the Supreme
Court held that it did not violate Article I, section 9, when two
hotel employees, acting at the direction of a police detective,
gathered trash in the defendant’s hotel room while cleaning, kept that trash separated from the trash from other
rooms, and delivered it to the detective for inspection. The
trial court was persuaded by that argument and relied on it,
at least in part, in ruling on the admission of the photos.
          Two weeks later (after the conclusion of defendant’s
trial), the Supreme Court revisited Howard/Dawson and
Purvis in Lien/Wilverding. In Lien/Wilverding, police officers
obtained incriminating items from the defendants’ garbage
“by having a sanitation company manager specially pick up
defendants’ garbage bin on trash pick-up day, transport it to

of something of a personal nature by one party to another, to be held according to the purpose or object of the delivery, and to be returned or delivered over
when that purpose is accomplished.”); Black’s Law Dictionary 174 (11th ed 2019)
(“Unlike a sale or gift of personal property, a bailment involves a change in possession but not in title.”).
    7
      We apply the law in effect at the time of appeal. State v. Jury, 

, 

 (2002), rev den, 

 (2003).
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the sanitation company’s facilities, and turn it over to the
officers, who then searched the bin.” 

.
          The court declined to decide whether the Lien/
Wilverding defendants retained a possessory interest in
their curbside garbage, instead considering only whether
they retained a privacy interest. 

. Relying on
“social and legal norms,” the court concluded that they did.

. The court acknowledged how “outraged” most
Oregonians would be if they learned that their sanitation
company had separated out their trash from everyone else’s
and given it to the police, a neighbor, or any of a litany of
curious third parties—rather than commingling it with the
other garbage picked up on the route and taking it to a landfill, as one would expect. 

. The court noted that
the sanitation company had an “exclusive franchise in the
city” and that the defendants “were obligated by city ordinance to remove waste from their home on at least a weekly
basis.” 

. The court recognized that it was construing our state constitution to provide greater protection
than the Fourth Amendment, as construed by the United
States Supreme Court, and pointed to other state courts
that have done the same under their state constitutions.

. It expressed its agreement with those other
state courts “that people do not voluntarily expose their private effects to government officials when they place their
garbage in opaque, closed garbage bins at curbside for collection by their community’s garbage hauler.” 

.
         The court then turned to the issue of the sanitation
company manager acting “as an agent of the police when
he picked up defendants’ garbage bin and delivered it to
the police for a search.” 

. “It is axiomatic … that
Article I, section 9, applies only to government-conducted
or -directed searches and seizures, not those of private citizens.” 

 It was “undisputed that the police solicited the
sanitation company manager to specially pick up and bring
defendants’ garbage to them,” and the trial court found
that the manager had “acted exclusively at the request and
direction of the police.” 

 (internal quotation marks
omitted). In that context, the court acknowledged that
Purvis and Howard/Dawson could be read as “broadly holding that, once a private actor takes possession of a person’s
522                                          State v. Laney

garbage”—as the sanitation company employees did in Lien/
Wilverding—any privacy interest in the garbage is immediately lost. 

. The court “renounce[d]” that broad
reading, concluding “that Oregonians do not ‘lose’ privacy
interests in their garbage when the police direct a private
actor to facilitate the government’s search by picking up
garbage bins left at curbside for regular trash pick-up day.”

. It disavowed Purvis and Howard/Dawson to the
extent that they held otherwise. 

         Returning to the present case, we are unpersuaded
that Lien/Wilverding affects the outcome here. Certainly,
a portion of the trial court’s stated reasoning in ruling on
the admission of the photos is no longer viable after Lien/
Wilverding. But it does not follow that the result is no longer correct. This case involves defendant leaving several
unwanted computers with his son-in-law, a private citizen,
with instructions to dispose of them. The issue is whether
defendant abandoned his constitutional interest in the computers by doing so, either immediately or after six years had
passed without his making any effort to determine their
fate. This case does not involve the police enlisting agents
to interfere with the normal processes by which garbage is
transported from people’s residences to the landfill, a crucial feature of Lien/Wilverding (and also a feature of Purvis
and Howard/Dawson), or anything analogous to that. Parks
received the computers from defendant by early 2011. He
promptly failed to follow through on disposing of them,
decided to keep the hard drives for his own use by early
2015, and first had contact with the police in May 2017.

         As Lien/Wilverding makes clear, there are circumstances in which a person retains a privacy interest in disposed items, regardless of whether the person still has a
possessory interest, including when garbage is placed in an
opaque bin and left at the curb for pickup by the local sanitation company. That does not mean, however, that everyone
retains a privacy interest in everything that they discard,
by any means, forever, and that it is no longer possible to
abandon one’s privacy interest in discarded items. To the
extent defendant contends that he retained a privacy interest in the computers even if he no longer had a possessory
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interest, we are unpersuaded that defendant’s privacy interest survived his abandonment of his possessory interest
in this case—or at least we are unpersuaded that it survived it by six years. Although Lien/Wilverding highlights
the potential divergence between possessory and privacy
interests, both aspects of a person’s constitutionally protected property interest have always been recognized. See,
e.g., Kauffman, 

 (stating that we examine
the totality of the circumstances to determine whether the
defendant “has abandoned protected possessory or privacy
interests”). In this case, the trial court expressly concluded
that defendant had relinquished both his “possessory and
privacy interest in the hard drives,” and we agree that the
evidence was sufficient for the court to conclude that the
state had met its burden of proof on this record.
         Accordingly, the trial court did not err by allowing
into evidence the photos from the hard drive. That resolves
the first three assignments of error, and, as previously
noted, we reject the fourth and fifth assignments on the
merits without written discussion.
        Affirmed.