State v. Lewis

306 Or.App. 492

474 P.3d 907

STATE of Oregon, Plaintiff-Respondent,

v.Nicholas Vern LEWIS, aka Nicholas V. Lewis, Defendant-Appellant.

A167134

Court of Appeals of Oregon.

Argued and submitted November 18, 2019.

September 16, 2020

Andrew D. Robinson, 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.

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 Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

SHORR, J.

Defendant appeals after entering a conditional plea in which he reserved a right to challenge multiple rulings by the trial court. Defendant raises 13 assignments of error. We write only to address defendant's twelfth assignment of error, in which defendant challenges the trial court's denial of his motion to suppress evidence discovered in his backpack during a warrantless search.¹ We affirm defendant's first through seventh, ninth through eleventh, and thirteenth assignments of error without written discussion. We do not reach defendant's eighth assignment of error.² We conclude that the trial court erred in denying defendant's motion to suppress, because the state failed to meet its burden of proving that defendant unequivocally relinquished his constitutionally protected interests in the backpack. Accordingly, we reverse and remand to the trial court for further proceedings.

We state the facts consistently with the trial court's findings and its denial of defendant's motion to suppress. State v. Bunch , 305 Or. App. 61, 62, 468 P.3d 973 (2020). On March 6, 2016, Officer Mansfield responded to a report of an intoxicated driver. The 9-1-1 caller reported that a Toyota Tundra truck was swerving and that the driver was a man and the passenger was a woman. At some point, according to the caller, the man and woman switched roles so that the woman was driving and the man was the passenger.

Another officer, Warner, located the truck at a gas station before Mansfield arrived. When Mansfield arrived, Warner told Mansfield that the man, defendant, claimed to be the registered owner of the truck.³ Dispatch reported to Mansfield that the registered owner of the truck was born in 1946, but defendant appeared to be significantly younger. Defendant and his friend, Hasbrook, entered the convenience store adjoining the gas station. When defendant and Hasbrook exited the store, Mansfield spoke with defendant, who denied driving the truck. Defendant also told Mansfield that he was not the registered owner.

While defendant was speaking with the officers, Hasbrook drove the truck away. Warner and Mansfield continued to investigate defendant for driving under the influence of intoxicants (DUII). Approximately 10 to 15 minutes after Hasbrook drove away, the officers determined that defendant was not impaired, and defendant left on foot. After defendant left the gas station, the officers became suspicious that the truck was stolen and decided to search the nearby area to determine if defendant and Hasbrook "had dumped the car somewhere." The officers found the truck unoccupied and parked "just north of the gas station." Mansfield testified that the truck was parked "[m]aybe less than a block" or "[m]aybe 40 yards" away from the gas station.

Warner contacted the registered owner of the truck, who confirmed that he had not authorized anyone to use the truck or remove it from his garage. The officers called a K-9 unit to assist them. While the officers were waiting for that unit, Hasbrook emerged from nearby bushes. The officers arrested her. With the assistance of the K-9 unit, the officers also located defendant hiding in a dumpster "just north" of the gas station. Defendant was arrested and taken into custody. Mansfield searched defendant's person and found a key fob to the truck in his possession.

The officers noticed two backpacks in the back seat of the truck. Mansfield called the owner to ask if he had left backpacks in the truck. The owner replied that he had not and gave Mansfield permission to search the vehicle. Mansfield removed the backpacks, and another officer transported them to the police station. According to Mansfield, he did not search the backpacks at the scene because he did not know who owned them. Although Mansfield did not know who the backpacks belonged to at that time, he testified that it had "crossed [his] mind" that the backpacks could belong to defendant and Hasbrook. Mansfield did not speak to defendant or Hasbrook about the backpacks, nor did any other officer at the scene. The next day, Mansfield and Warner searched the backpacks. Mansfield testified that their purpose in searching the backpacks was to determine who they belonged to. The officers discovered evidence in one of the backpacks linking defendant to a burglary.

The state charged defendant with various crimes related to that alleged burglary and the theft of the Toyota Tundra. Defendant moved to suppress the evidence discovered in the backpack, contending that the state unlawfully searched the backpack without a warrant in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The state argued that defendant had abandoned the backpack when he left it in the stolen car and, therefore, defendant was not entitled to suppression of the evidence. The state also contended that, if defendant had not abandoned the backpack, then the warrantless search was permissible under the exception to the warrant requirement for lost property.

In a letter opinion, the trial court denied defendant's motion, concluding that defendant "abandoned whatever constitutionally protected interest he might have had in the [backpacks] when he left them with Ms. Hasbrook in the stolen Tundra." The court attributed that conclusion to three factors. First, "no police instruction or conduct caused defendant to separate himself from the [backpacks]." Second, "[t]he vehicle was not found on a private property with any apparent connection to defendant." Third, "[l]eaving unmarked, untagged bags inside someone else's truck and walking away, particularly when the truck is stolen, is conduct that demonstrates a relinquishment of any constitutionally protected right of privacy in the property." Thus, according to the court, defendant "did not manifest an intention to maintain control over the property."

On appeal, defendant assigns error to the trial court's denial of his motion to suppress the evidence discovered inside of the backpack. Defendant contends that the state failed to meet its burden of proving that defendant relinquished his constitutionally protected rights in the backpack by abandoning it. Therefore, defendant asserts, the warrantless search violated defendant's rights under Article I, section 9.⁴ The state reprises its arguments from the trial court, that defendant abandoned the backpack when he left it in the truck, and that, if defendant did not abandon the backpack, then the warrantless search was permissible under the exception to the warrant requirement for lost property.

We begin by addressing the state's contention that the search fell within the exception to the warrant requirement for lost property. Article I, section 9, protects people against unreasonable searches and seizures. Subject to limited exceptions, a warrantless search by the police of a person's property is per se unreasonable. Bunch , 305 Or. App. at 65, 468 P.3d 973. Where, as here, the police conduct a warrantless search, the state bears the burden of proving that the warrantless search did not violate a protected interest of the defendant. State v. Cook , 332 Or. 601, 608, 34 P.3d 156 (2001).

Under certain conditions, police may search lost property without a warrant to determine the identity of the owner. "To search lost property, officers need to have a good faith, subjective belief that the property is lost and that belief needs to be ‘objectively reasonable under the circumstances.’ "

State v. Woods , 288 Or. App. 47, 54, 405 P.3d 169 (2017) (quoting State v. Vanburen , 262 Or. App. 715, 728, 337 P.3d 831 (2014) ). Lost property is "property which the owner has unwittingly suffered to pass out of his possession, and the whereabouts of which he has no knowledge." Id .

Applying the above standard, we conclude that the search of defendant's backpack does not fall within the exception to the warrant requirement for lost property. Mansfield testified that it had "crossed [his] mind" that the backpacks might belong to defendant and his friend. That testimony suggests that, although the owner's identity may have been uncertain, Mansfield did not have a subjective belief that the backpacks were lost. See Bunch , 305 Or. App. at 66, 468 P.3d 973 (explaining that "uncertainty as to * * * ownership does not translate into a subjective belief that [the property] was lost"). And, even assuming that Mansfield did believe that the backpacks were lost, that belief was not reasonable under the circumstances. When Mansfield searched defendant's backpack, he knew that the backpacks were found in a stolen vehicle and that they did not belong to the vehicle's owner. Mansfield also knew that defendant and his friend were driving that stolen vehicle immediately prior to his discovery of the backpacks. Under those circumstances, it was not reasonable for Mansfield to believe the backpacks were lost. Therefore, the search does not fall within the exception to the warrant requirement for lost property. Because the state has not presented alternative exceptions to the warrant requirement that apply here, the search was unreasonable in violation of Article I, section 9.

Having concluded that the warrantless search was unlawful, we must determine whether that search violated defendant's ...