State v. Belcher

¶1dissenting.

¶2Because the pack is defendant’s “effect” within the meaning of Article I, section 9, it is not necessary for him to establish any expectation of privacy, subjective or objective, in it. The constitution guarantees his privacy interest and, unless defendant had abandoned the pack, the officer had no authority to inspect its contents without a warrant, because no exception to the warrant requirement existed and none is claimed.

¶3The majority concedes that there was no common law abandonment. 89 Or App at 404. However, it says that, for constitutional purposes, the standard is less rigid, requiring only a showing that, objectively, “the owner has ‘abandoned’ his reasonable expectations of privacy in the property so that *406its inspection presents no question of search with its constitutional implications,” citing State v. Green, 44 Or App 253, 605 P2d 746 (1980). Greenwas decided before State v. Caraher, 293 Or 741, 653 P2d 942 (1982), and relied on cases decided under the federal constitution that apply the analysis of Katz v. United States, 389 US 347, 361, 88 S Ct 507, 19 L Ed 2d 576 (1967). (Harlan, J., concurring.)

¶4Since Caraher, cases decided under the federal constitution are not controlling in the interpretation of the Oregon Constitution, and the Katzanalysis is not applicable to determine whether there has been a search of an effect within the specific protection of Article I, section 9. See State v. Louis, 296 Or 57, 672 P2d 708 (1983); State v. Rounds, 73 Or App 148, 698 P2d 71, rev den 299 Or 663 (1985); State v. Campbell, 87 Or App 415, 742 P2d 683 (1987), rev allowed 305 Or 21 (1988); State v. Dixson/Digby, 87 Or App 1, 740 P2d 1224, rev allowed 304 Or 437 (1987). The majority’s attempt to apply the Katzanalysis here is in error.

¶5The majority attempts to distinguish State v. Rounds, supra,on the basis that the backpack in Rounds was found by the police on private property and that the police, investigating a suspected burglary attempt, had been told that the defendant had returned to it at least once after leaving it there. For those reasons, we held that there was “no objective basis for the officer reasonably to think that it had been abandoned.” 73 Or App at 152. The officer, however, did not know that the defendant was related to the property owner. Here, the officer was investigating a fight at a public parking lot. When he arrived at the scene, defendant and other participants fled, leaving some belongings behind — a wallet and a backpack. There was no objective basis for believing that either of those items was abandoned. They remained defendant’s effects in which Article I, section 9, guarantees his privacy, so long as there remained a possibility that he would reclaim them. State v. Tanner, 304 Or 312, 745 P2d 757 (1987). Defendant’s “reasonable expectations of privacy,” on which the majority relies, has nothing to do with the case. Because the pack was opaque, and there was nothing about it that “announced its contents,” a warrant was necessary to conduct a search of it. State v. Owens, 302 Or 196, 729 P2d 524 (1986).

¶6The officer was entitled to take possession of the *407pack to secure it for return to its owner. He had no right to search through it without a warrant, at least in the absence of an authorized administrative program requiring an inventory of its contents. State v. Perry, 298 Or 21, 688 P2d 827 (1984); State v. Atkinson, 298 Or 1, 688 P2d 832 (1984). The state does not attempt to justify the search on that basis.

¶7Because I believe that the warrantless search of defendant’s pack was unlawful, I respectfully dissent.

¶8dissenting.

¶9The majority holds that defendant owned the backpack and its contents but that, somehow, he had no constitutionally protected interest in them. That holding violates Article I, section 9, of the Oregon Constitution. It is based on a distinction between abandonment of ownership and abandonment “in the constitutional context,” 89 Or App at 404, which has no basis in Oregon law. I therefore dissent.

¶10The majority seems to recognize that, if defendant retained any rights in the backpack, the officer violated them when he searched it. The only purpose for which the officer could legitimately look through the pack, based on the information that he had when he did so, was to discover who owned it. The trial court stated that it was unlikely that the leather bag contained any identification, and I agree. Accordingly, the search fits the general “principle that, in a non-investigative, nonemergency situation, it is unreasonable for an officer to open a closed container.” State v. Rounds, 73 Or App 148, 155, 698 P2d 71, rev den 299 Or 663 (1985); see also State v. Keller, 265 Or 622, 510 P2d 568 (1973).1

¶11The majority does not claim that defendant abandoned his ownership of the backpack when he dropped it. Such a claim would be untenable, because abandonment of ownership requires that defendant voluntarily relinquish possession of the pack with the intention of terminating his ownership without vesting ownership in any other person. Dober v. Ukase Investment Co., 139 Or 626, 629, 10 P2d 356*408(1932); Rich v. Runyon, 52 Or App 107, 112-13, 627 P2d 1265 (1981); see also 1 CJS, “Abandonment,” § 6. Rather, the majority asserts that defendant abandoned his constitutional protections in the pack. In arriving at that conclusion, the majority relies on a case decided under the Fourth Amendment and ignores at least the last five years of Oregon search and seizure case law.

¶12In State v. Green, 44 Or App 253, 605 P2d 746 (1980), the case on which the majority relies, the defendant and a companion had fled on foot after being chased in their car by friends of a person whose house they had burglarized. They left their car after finding themselves on a dead-end street. The police impounded the car and searched it without a warrant. We held:

“Where two suspected thieves have been pursued from the scene of an apparent burglary and finally leap from their car and flee, they have abandoned any expectation of privacy with respect to the car in the same way that a fleeing robber who drops a bag of loot has abandoned the loot. Society is not prepared to recognize as reasonable — and the constitution does not compel it to recognize as reasonable — any subjective expectation of (or hope for) privacy the fleeing burglars may have retained in the car they left behind.”

¶13While the opinion does not state on which constitution it relies, it cites Fourth Amendment cases, including one federal court of appeals case. 44 Or App at 259.

¶14We decided State v. Green, supra,in the period between State v. Florance, 270 Or 169, 527 P2d 1202 (1974), and State v. Caraher, 293 Or 741, 653 P2d 942 (1982), a period when the Oregon Supreme Court was construing Article I, section 9, consistently with federal interpretations of the Fourth Amendment. Our decision followed that lead and determined the defendant’s rights in the car by applying the federal “reasonable expectation of privacy test” derived from Katz v. United States, 389 US 347, 88 S Ct 507, 19 L Ed 2d 576 (1967). Our statement that “the facts in this case constitute abandonment — not abandonment in the common law sense, but abandonment for constitutional purposes,” 44 Or App at 259, is meaningless except in the context of the Katztest.

¶15With State v. Caraher, supra,the Supreme Court reasserted the independent status of Article I, section 9. In *409State v. Flores, 68 Or App 617, 685 P2d 999, rev den 298 Or 151 (1984), we concluded that it would “treat post-Florance but pre-Caraher cases as federally-based and as deciding nothing under the Oregon Constitution, even when they purport to adopt a federal rule as the Oregon constitutional rule.” 68 Or App at 625. That prediction was correct. See, e.g., State v. Tanner, 304 Or 312, 745 P2d 757 (1987); State v. Owens, 302 Or 196, 729 P2d 524 (1986); State v. Kock, 302 Or 29, 725 P2d 1285 (1986). Thus, State v. Green, supra,retains precedential value only if the Katztest is consistent with Oregon law; it is not.

¶16Article I, section 9, protects the people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure … In State v. Turechek, 74 Or App 228, 702 P2d 1131 (1985), the issue was whether an officer could properly search a pickup truck for its vehicle identification number (VIN). Cases from other jurisdictions were in conflict on whether vehicle owners had a reasonable expectation of privacy in the VIN or in the area of the vehicle where it was located. We did not decide the case on that basis. We simply noted that the “protection of Article I, section 9, extends to ‘effects’, among which defendant’s pickup is surely included.” 74 Or App at 232. We therefore held that the officer conducted a search when he opened the truck’s door to find the VIN. That holding was consistent with our previous holding that the Katztest was irrelevant when a place searched was within the curtilage of the defendant’s home. See State v. Ohling, 70 Or App 249, 252 n 4, 688 P2d 1384, rev den 298 Or 334 (1984); State v. Russo, 68 Or App 760, 764 n 1, 683 P2d 163 (1984). Even if Katzhad any role under the Oregon Constitution, that test could not reduce the protection which the constitution explicitly affords. “If a police intrusion is a trespass into the defendant’s home, papers or effects, it violates the defendant’s rights.” State v. Dixson/Digby, 87 Or App 1, 9 n 8, 740 P2d 1224, rev allowed 304 Or 437 (1987). If a person owns property, that person necessarily retains rights in it which the constitution protects. There is no distinction under the Oregon Constitution between abandonment for common law purposes and for constitutional purposes.

¶17State v. Tanner, supra,makes that point clear. In Tanner, the police, while searching a house in violation of Article I, section 9, discovered property which the defendant *410had pledged to the owner of the house as security for a loan. The issue was whether the defendant could assert the illegality of the search in order to exclude the evidence from his trial for theft of the property. The Supreme Court emphasized that Article I, section 9, protects both privacy and property interests: privacy interests from search and property interests from seizure. 304 Or at 319; see also State v. Owens, supra, 302 Or at 206; State v. Elkins, 245 Or 279, 286-88, 422 P2d 250 (1966). Because the defendant attacked only the discovery of the property, not its seizure, the court emphasized his privacy interest. However, in doing so it criticized the Katztest, 304 Or at 321-22 n 7, and did not use it in determining the defendant’s rights. Rather than having those rights depend on the defendant’s expectations, it held that an illegal police search which violated the rights of the person to whom the defendant entrusted the property also violated the defendant’s rights.

¶18The Supreme Court rejected the state’s arguments that the defendant’s limited rights to the property meant that he had no privacy interest in it:

“The state contends that defendant had no immediate right of access to the tapes and equipment, but that fact alone does not preclude defendant’s continuing entrustment of the effects. So long as there remained a possibility that defendant would reclaim the effects, the entrustment was sufficiently viable to demonstrate that the illegal search of the Best residence violated his privacy interest under section 9.” 304 Or at 323. (Emphasis supplied.)

¶19Accordingly, the defendant in State v. Tanner, supra,had a continuing privacy interest in the property that he had pledged and which he might lose if he could not repay the loan. In the present case, defendant also had continuing property and privacy interests in a backpack whose ownership he did not abandon and in which he, unlike the defendant in Tanner, continued to have the paramount right of possession. If anything, his interests are stronger than those of the defendant in Tanner. Article I, section 9, gives those interests protection, which the officer’s search violated, and which the majority strips from him by its unfounded distinction between property law and constitutional abandonment. I cannot agree and therefore dissent.