State Of Or. v. Brown

• Decision Date: 27 May 2010
• Docket Number: (C060902CR,SC S057594).,CA A133625
• Citation: 348 Or. 293,232 P.3d 962
• Parties: STATE of Oregon, Petitioner on Review,v.Sheena BROWN, Respondent on Review.
• Court: Oregon Supreme Court

348 Or. 293

232 P.3d 962

STATE of Oregon, Petitioner on Review,v.Sheena BROWN, Respondent on Review.

(C060902CR; CA A133625; SC S057594).

Supreme Court of Oregon En Banc.

Argued and Submitted Feb. 19, 2010.

Decided May 27, 2010.

On review from the Court of Appeals.^*

Robert M. Atkinson, Senior Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

David Ferry, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With him on the brief was Peter Gartlan, Chief Defender.

DE MUNIZ, C.J.

Defendant was charged with 22 counts of identity theft. The evidence against her derived entirely from the warrantless search of two bags that defendant had denied owning and had left in a hotel room rented by another person. Defendant moved to suppress the evidence against her on the ground that it had been obtained through a search that violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court concluded that the search of the bag violated Article I, section 9, and suppressed the evidence. The Court of Appeals affirmed. State v. Brown, 228 Or.App. 197, 206 P.3d 1180 (2009). We allowed the state's petition for review and now reverse.

The facts relevant to our review are undisputed. A man and a woman had checked into a hotel. The hotel room was rented under the man's name, Taunice Beal; however, the woman paid for the room with a credit card in the name of Katrina Ivanov. The clerk suspected some form of identity theft or credit card fraud and summoned the police to the hotel.

Police went to the room, which was occupied by four people, one of whom was defendant. On the floor in plain view was a methamphetamine pipe with residue. Officer Pfaff asked whether anyone in the room was either Beal or Ivanov; the four people in the room denied being Beal or Ivanov. Pfaff also asked if anyone present had rented the room; they all stated that they had not. When asked for identification, defendant claimed that she did not have any identification with her and gave the officer a false name, Stephanie Hageman.

The hotel manager arrived and, on learning that no authorized guests were in the room, instructed everyone to leave. No one protested or objected to being required to leave. Pfaff asked the people in the room if they had any personal property there. One person claimed a cell phone and shoes; another claimed a purse and sandals. Defendant claimed only a pair of sandals. While Officer Pfaff was retrieving defendant's sandals, she noticed a black bag and asked defendant if the bag was hers. Defendant denied that it was. The officer asked again, noting that defendant's sandals were next to the bag; however, defendant again denied owning the bag. The officer also pointed out a second black bag in the room, and asked if it belonged to defendant. Defendant twice denied owning that bag. There was also a third bag in the room-a duffel bag-which no one claimed. Pfaff asked everyone in the room if they had retrieved all of their personal possessions from the room, because the room would be locked. No one claimed anything else in the room. After everyone had left the room, the hotel manager locked the room door, rekeying the lock so that the occupants of the room would have to come to the hotel desk before they could enter the room. The officers then left.

Later that afternoon, Beal returned to the hotel with a companion, and the hotel contacted the police. Pfaff responded to the call and met with Beal. Beal stated that he had rented the room, and that a woman he knew as Sheena had paid for it with a credit card. The officer asked Beal if anything in the room belonged to him, and Beal identified the duffel bag. Pfaff asked Beal for permission to search the room, and Beal responded, “ ‘[y]ou can search whatever you want.’ ” The officer first searched the duffel bag, then began searching the first black bag. The officer found a wallet that contained a photo of defendant, a credit card in the name of Katrina Ivanov, and some notebook paper containing handwritten identity information for other people ( e.g., names, dates of birth, driver's license numbers, Social Security numbers, etc.). At approximately the same time that Pfaff discovered the identity information, Beal told her that both black bags were owned by Sheena, and Beal's companion added that Sheena's last name was Brown. Concluding that the bag contained evidence of identity theft, the officer closed the bag, seized the other black bag, and left the hotel room. Later, at the police station, the officer further searched both bags, discovering additional evidence of identity theft.¹

Before trial, defendant moved to suppress the evidence discovered during the search of the bags, arguing that the warrantless search of the bags violated defendant's privacy right under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. In response, the state asserted that defendant had abandoned any possessory or privacy interest in the bags when she denied owning them and left them in the room. The trial court granted defendant's motion to suppress. In a letter explaining its ruling, the trial court stated: “I am not convinced[,] based on the totality of circumstances in this case[,] that the defendant demonstrated an intent to permanently relinquish possession of the items at issue or the privacy interests that accompanied the right to possess them.”

The state appealed the suppression order to the Court of Appeals, which affirmed. That court concluded that the issue was “whether, when defendant stated that the bags did not belong to her and left the hotel room without them, she manifested the intent permanently to relinquish her possessory or privacy interests.” Brown, 228 Or.App. at 203-04, 206 P.3d 1180. The court held that, “although defendant denied owning the bags, her conduct in leaving her bags apparently secure in the hotel room did not amount to giving up her privacy interest in that property.” Id. at 204, 206 P.3d 1180. The court reasoned that defendant was leaving the bags in a secure hotel room rented by someone she knew, which “was consistent with an intent to maintain a privacy interest in the bags.” Id. The court also noted that nothing would have suggested to defendant that her denial of an interest in the bags would cause them to be searched. Id. We allowed the state's petition for review to consider whether the trial court and the Court of Appeals correctly concluded that the search of the bags violated Article I, section 9.

We begin by reviewing the nature of the right guaranteed by Article I, section 9, which provides, in 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 * * *.”

The government conducts a “search” for purposes of Article I, section 9, when it invades a protected privacy interest. See

State v. Crandall, 340 Or. 645, 649, 136 P.3d 30 (2006) (so stating); State v. Meredith, 337 Or. 299, 303-04, 96 P.3d 342 (2004) (same); State v. Wacker, 317 Or. 419, 426, 856 P.2d 1029 (1993) (same). A protected privacy interest “is not the privacy that one reasonably expects but the privacy to which one has a right.” State v. Campbell, 306 Or. 157, 164, 759 P.2d 1040 (1988) (emphasis in original; citation omitted). Accordingly, a defendant's subjective expectation of privacy does not necessarily determine whether a privacy interest has been violated. See

State v. Howard/Dawson, 342 Or. 635, 643, 157 P.3d 1189 (2007) (rejecting defendants' argument that they did not expect their garbage to be searched by police after sanitation company had picked it up).

It is true that Article I, section 9, protects “the general privacy interests of ‘the people’ rather than * * * the privacy interests of particular individuals.” State v. Tanner, 304 Or. 312, 320, 745 P.2d 757 (1987) (omitted).² However, it is not enough that police may have violated Article I, section 9, in some abstract sense. As Tanner explains, courts will suppress evidence only when a defendant's rights under Article I, section 9 have been violated. “[T]he search * * * must violate the defendant's section 9 rights before evidence obtained thereby will be suppressed; a defendant's section 9 rights are not violated merely by admitting evidence obtained in violation of section 9.” Id. at 315-16, 745 P.2d 757.

Here, when the officers first arrived at the hotel room, it is clear that defendant had a constitutionally protected privacy interest in both bags. She owned the bags, she was in possession of the bags, and both she and the bags were in a private room that she had paid for (admittedly under a false identity). The question is whether defendant's subsequent actions caused her to lose those constitutionally protected privacy interests.

This court's decision in State v. Cook, 332 Or. 601, 34 P.3d 156 (2001), is instructive. In Cook, police officers, arriving at a parking lot to investigate possible thefts from vehicles, spotted the defendant standing next to a garbage dumpster sorting clothing into a duffel bag. One officer asked the defendant to step away from the duffel bag, and defendant complied. The officer asked the defendant whether the clothing or the bag belonged to him. The defendant said that they did not, but that he had found them and was sorting through them for things to use. The officers subsequently searched the duffel bag and discovered drugs, as well as evidence that the bag did belong to the defendant.

On review, the state agreed that the defendant had a possessory and privacy interest in the duffel bag and its contents, but it argued that the defendant had relinquished that interest by denying ownership and...