State v. Akers

• Decision Date: 13 December 1995
• Citation: 907 P.2d 1131,138 Or.App. 289
• Parties: STATE of Oregon, Respondent, v. Eric Michael AKERS, Appellant. 9300203CR; CA A82411.
• Court: Oregon Court of Appeals

Page 1131

907 P.2d 1131

138 Or.App. 289

STATE of Oregon, Respondent, v. Eric Michael AKERS, Appellant.

9300203CR; CA A82411.

Court of Appeals of Oregon.

Argued and Submitted March 30, 1995.

Decided Dec. 13, 1995.

Peter Gartlan, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Defendant appeals his convictions for delivery of a controlled substance, delivery of marijuana for consideration and possession of a controlled substance. ORS 475.992. He assigns error to the denial of his motion to suppress evidence obtained from a search of a "fanny" pack. The trial court concluded that defendant had failed to establish that he had a protected interest in the contents of the pack and held that he could not challenge the lawfulness of the search. We affirm.

The facts are largely undisputed. Defendant had entered a Radio Shack store to purchase an antenna. When he left the store, he left a small blue fanny pack on the counter in the store. The manager of the store remembered that he had seen defendant carrying the pack. He went out into the mall to look for defendant to return the pack, but was unable to find him. The manager returned to the store and opened the pack, intending to look for identification. When he opened it, he found plastic baggies containing what he believed to be marijuana and a brown leather sack, which contained an unknown substance. The manager then called the police.

Shortly thereafter, defendant returned to the store to retrieve the pack. The manager testified that, "having called the police and suspecting that [it was] drugs, I wasn't going to give it back to him at that point until we had consulted with the police." Consequently, various clerks pretended to help defendant look for the pack. When a police officer arrived in response to the manager's call defendant promptly left the store. The manager told the officer that the man to whom the bag belonged had left the building. The officer stopped defendant in the parking lot and ran a records check, which showed that defendant was on parole. The officer then read to defendant Miranda-like warnings and asked him to return to the store, which defendant did.

When they got back to the store, the officer asked the manager to place the pack on the counter. He then asked defendant if he could search the pack. The officer, a clerk and the manager testified that defendant responded that it was not his pack and that he did not care if it was searched. Defendant testified that he stated that the pack did not belong to him, and that he could not give the officer consent to search someone else's belongings. ¹ The officer then opened the pack and discovered sizable quantities of marijuana and methamphetamine.

Before trial, defendant moved to suppress evidence of the drugs. The court denied the motion, because it determined that defendant had failed to establish that he had a protected interest in the contents of the pack and, so, could not challenge the lawfulness of the search of the pack. Defendant was subsequently convicted after a jury trial.

To challenge the lawfulness of a search or seizure under Article I, section 9, of the Oregon Constitution, defendant must establish that he had a protected interest in the particular item searched or seized. State v. Morton, 137 Or.App. 228, 231, 904 P2d 631, 633 (1995). The same principle applies under the Fourth Amendment to...