State v. Ipsen

288 Or.App. 395

406 P.3d 105

STATE of Oregon, Plaintiff-Respondent,

v.Richard Eugene IPSEN, Defendant-Appellant.

A157082

Court of Appeals of Oregon.

Argued and submitted March 1, 2016.

October 25, 2017

Stephen A. Houze, Portland, argued the cause and filed the brief for appellant.

Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before DeVore, Presiding Judge, and Tookey, Judge, and Garrett, Judge.^*

TOOKEY, J.

Defendant appeals a judgment of conviction for eight counts of second-degree invasion of personal privacy and two counts of attempted second-degree invasion of personal privacy, ORS 163.700. Defendant assigns error to the trial court's denial of his motion to suppress evidence obtained as a result of a purported unlawful search. For the reasons that follow, we affirm.

We recite the facts consistently with the trial court's findings. On May 1, 2013, a Starbucks employee found what appeared to be an AC adapter in the Starbucks public bathroom; the device appeared similar to a cell phone or camera charger. The device was in plain view, plugged into an outlet near the sink, facing the toilet. Upon closer inspection, the employee noticed that the device had a small rainbow-colored lens and that the device did not have a cord, as would be expected for a cell phone or camera charger. The employee showed the device to his shift supervisor, who agreed that the device did not look like a charger; rather, they agreed that the device looked like a camera. Believing the device to be a camera, the Starbucks employee called the Sherwood Police Department.

The employee later testified that, although Starbucks has a procedure for lost and found items, because he was concerned that the device was a camera, the employee decided to turn the device over to the police.

Officer Miller responded to the call at the Starbucks location. Miller explained that the Starbucks employee was "adamant that he thought [the device] was a camera." The employee showed Miller a pinhole on the front of the device where the employee believed the camera was located. After examining the device and being unable to determine whether it was a camera, Miller gave the Starbucks employee a property receipt, treating the device as he would "any found property." Before leaving the store, Miller instructed the Starbucks employees that if someone came looking for the device, the employees should notify that person that the device had been turned over to the police department and that the person could retrieve the device from the department. When he returned to the police department, Miller placed the device "into evidence as found property." Miller also searched the Internet for AC adapters, but was unable to find an image that was identical to the device found. As a result, Miller was unable to confirm that the device was just an AC adapter, but was similarly unsure that the device was a camera.

A week later, on May 8, 2013, Captain Hanlon was reviewing the Sherwood Police Department's calls for service from the week prior. The call concerning the device found at Starbucks "piqued [Hanlon's] curiosity" because it reminded him of a similar, unrelated case involving a hidden device. At the time, Hanlon was not aware that anyone had attempted to retrieve the device from Starbucks. Sergeant Powell retrieved the device from evidence and Hanlon inspected it. Hanlon noticed the pinhole on the front of the device and, based on his training and experience, Hanlon knew that the pinhole could either be "a camera or an LED light that would indicate" whether the device was charging. Hanlon also noticed that, unlike a normal AC adapter, the device's backing could slide off. Hanlon slid the backing off of the device, exposing a storage device (SD) card. The contents of the SD card revealed images of Starbucks patrons using the bathroom.

Subsequently, Hanlon reported his findings to Detective Smith. On May 12, 2013, Smith contacted the Starbucks employees. At that time, Starbucks employees informed Smith that on May 5, 2013, a man had come to the store and attempted to retrieve a charger. One of the employees told the man that they had recently "turned one over to the police." The man looked very surprised and exited the store. The man did not leave his contact information. The Starbucks employees described the man to Smith. No one attempted to retrieve the device from the Sherwood Police Department.

As part of her investigation, Smith reviewed surveillance footage from Starbucks; using that footage, she matched the same man visiting the store on May 1 and May 5. Smith conducted another search of the SD card, discovering additional evidence of defendant adjusting the positioning of the camera and people using a residential bathroom.

Thereafter, after identifying defendant, Smith obtained a search warrant to search his homes in Tualatin and Bend.

Relying on Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, defendant moved to suppress the evidence seized during the warrantless searches of the device and the subsequent searches of his homes. The trial court denied defendant's motion to suppress, stating, "Clearly, it was a search. Clearly it was warrantless. I don't believe, however, that [defendant] had any privacy rights to the camera once he left it where he did, so the motion's going to be denied."

Defendant subsequently waived his right to a jury trial, and, following a trial on stipulated facts, he was convicted of eight counts of invasion of personal privacy and two counts of attempted invasion of personal privacy.

On appeal, defendant argues that the trial court erred in denying his motion to suppress, in that the state failed to prove that defendant abandoned his privacy interest in the contents of the device. Defendant contends that, because law enforcement did not manifest a subjective belief that the device had been abandoned and because such a belief would not have been objectively reasonable, the search was not justified on the theory that the device had been abandoned. In response, the state argues that the trial court did not err in denying defendant's motion to suppress. According to the state, by placing the device in a bathroom available to the general public and leaving it, defendant abandoned his constitutionally protected privacy interest in the device.

We review a trial court's ruling on a motion to suppress evidence for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In reviewing a trial court's suppression order,

"we are bound by the trial court's findings of historical fact if they are supported by evidence in the record. Where a trial court does not make findings on a particular issue, we presume that it decided the facts in a manner consistent with its ultimate conclusion relating to the lawfulness of the seizure and search."

State v. Dickson, 173 Or. App. 567, 571, 24 P.3d 909, rev. den., 332 Or. 559, 34 P.3d 1177 (2001) (citation omitted).

Article I, section 9, of the Oregon Constitution provides, in pertinent 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[.]" A search occurs for purposes of Article I, section 9, when the government "invades a protected privacy interest." State v. Brown, 348 Or. 293, 297, 232 P.3d 962 (2010). "A protected privacy interest ‘is not the privacy that one reasonably expects but the privacy to which one has a right.’ " Id. at 298, 232 P.3d 962 (quoting State v. Campbell, 306 Or. 157, 164, 759 P.2d 1040 (1988) (emphasis in Campbell )). Moreover, "a defendant's subjective expectation of privacy does not necessarily determine whether a privacy interest has been violated." Id.

We begin by considering whether, at the time the device was searched, defendant held a privacy interest in the device. In a case of actual abandonment, and in determining whether a defendant has abandoned his constitutionally protected interest in an article of property, we consider "whether the defendant's statements and conduct demonstrated that [he] relinquished all constitutionally protected interests" in the property. Brown, 348 Or. at 302, 232 P.3d 962. A defendant need not demonstrate "an intent to permanently relinquish all constitutionally protected interests." Id. (emphasis in original).¹

In determining whether defendant manifested an intent to relinquish his constitutionally protected interests in the device, we turn to case law. Factors relevant to that determination include: (1) whether the defendant separated himself from the property as a...