State v. Laney

318 Or.App. 509

507 P.3d 308

STATE of Oregon, Plaintiff-Respondent,

v.Michael Leroy LANEY, aka Michael Laney, Defendant-Appellant.

A171485

Court of Appeals of Oregon.

Argued and submitted February 22, 2021.

March 23, 2022

Stephen A. Houze, Portland, 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.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Armstrong, Senior Judge.

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 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 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 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 , 364 Or. 750, 441 P.3d 185 (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 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 , 197 Or. App. 96, 99-100, 104 P.3d 624, rev. dismissed as improvidently allowed , 339 Or. 450, ...