State v. Cook

• Decision Date: 18 October 2001
• Citation: 332 Or. 601,34 P.3d 156
• Parties: STATE of Oregon, Respondent on Review, v. Jeffrey Dale COOK, Petitioner on Review.
• Court: Oregon Supreme Court

34 P.3d 156

332 Or. 601

STATE of Oregon, Respondent on Review, v. Jeffrey Dale COOK, Petitioner on Review.

CC 1396-08502; CA A99394; SC S47104

Supreme Court of Oregon.

Argued and Submitted March 6, 2001.

Decided October 18, 2001.

Dan Maloney, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the briefs was David E. Groom, Public Defender.

Jennifer Scott Lloyd, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, RIGGS, and De MUNIZ, Justices.²

De MUNIZ, J.

This is a criminal case in which defendant was convicted of possession of methamphetamine, ORS 475.992(4)(b) (1995), which the police found during a warrantless search of some clothing and a duffel bag. The Court of Appeals held that "defendant had a privacy and possessory interest in the bag and its contents before the bag was searched," but that suppression of the evidence was not required, because "defendant had abandoned his interests * * * in the bag before the search occurred." State v. Cook, 163 Or.App. 24, 31, 34, 986 P.2d 1228 (1999). We allowed defendant's petition for review and now reverse the decision of the Court of Appeals.

The parties agree with the Court of Appeals' recitation of the facts, which we set out below:

"During the hearing on the motion to suppress, Officers Petermen and Reynolds testified that on September 8, 1996, at 1:30 a.m., they went to an apartment complex after they were advised through a radio dispatch of two persons possibly trying to commit thefts from vehicles. The officers testified that they did not know the name of the caller who had informed the police department of the two suspects and did not recall descriptions of the suspects. Both officers began looking for the suspects in the parking area of the complex. Although Officer Petermen saw no broken glass, he testified that windows are not always broken when items are stolen from cars. Subsequently, for approximately two minutes, Officer Petermen observed defendant, who was bent down next to a garbage dumpster adjacent to the parking area in the process of sorting clothing into a duffel bag. Defendant's back was toward the officer. The dumpster was in a semi-enclosed area. Officer Petermen testified that, based on defendant's behavior, `it seemed reasonable to believe that the actions that he was doing would be something consistent with somebody who had committed a theft from a vehicle.' Consequently, Officer Petermen testified that he `contacted [defendant] in the doorway [to the area containing the dumpster], asked [defendant] to step out, [and they] backed down the hallway.' Defendant complied, after leaving the bag and clothing on the ground.

"Officer Petermen testified:

"`A. Initially I asked [defendant] what it was he was doing. He told me he had been out for a walk when he discovered a pile of clothing there and he thought he may be able to use some of the clothing and so he was going through the clothing to find items which he may be able [to] use.

"`Q. Did he say whether the clothing or the bag or anything in there was his?

"`A. He said none of the items that he had been handling were his except a green army jacket also in there lying down.'

"Officer Reynolds also recalled that defendant originally `denied that any of the property in there was his and that he had just found all the stuff inside and was going through it to see what he wanted to take home.'

"Subsequently, Officer Petermen returned to the enclosure where the dumpster was located. During that time, defendant remained outside with Officer Reynolds. When Officer Petermen searched the bag, he

"`found clothing, [a] magazine and a syringe with a kitchen-type knife bound together with string as well as two silver spoons, one contained a white powder substance with a small piece of white colored wadding along with a second silver spoon, clear plastic baggie and a Snickers candy bar.'

"Officer Petermen also found the name, `Doreen Cook,' written on the inside of the bag. Thereafter, the officer returned to defendant, who again denied that the bag was his. After Officer Petermen ascertained that the name of defendant's wife was Doreen Cook and indicated to defendant that that name was on the bag, defendant admitted that the bag was his."

State v. Cook, 163 Or.App. at 26-27, 986 P.2d 1228.

Before trial, defendant moved to suppress the evidence, arguing that the seizure and search of the bag and clothing violated his privacy and possessory interests under Article I, section 9, of the Oregon Constitution. The trial court denied defendant's motion, ruling that: "[T]he officer had probable cause to suspect that a crime had been committed and that the search of the duffel bag was reasonable under the totality of the circumstances, particularly since the defendant initially denied ownership of the bag prior to the search[.]" The trial court added that "it was completely appropriate for the officers to determine ownership of the bag, not only to return the bag to the appropriate owner but [also] to determine if [defendant's possession of] the bag had indeed been [the] result of some type of [theft]."³ The Court of Appeals held that "it is clear that defendant had a privacy and possessory interest in the bag and its contents before the bag was searched." 163 Or.App. at 31,986 P.2d 1228. The court also noted that "[i]t is uncontroverted that the bag belonged to [defendant] or to his wife." Id. That court framed the issue as "whether defendant's disclaimer of ownership should be held to be an abandonment of his protected interests in the bag," a question that the court stated "turns on whether defendant intended to forego exercising his possessory and privacy interests in the bag." Id. at 32, 986 P.2d 1228. The Court of Appeals held that, under the circumstances, defendant evidenced an intent to abandon his interest in the bag and clothing before the search took place, and sustained the ruling of the trial court on that ground. Id. at 34, 986 P.2d 1228. On review, defendant argues that his "disclaimer of ownership" did not constitute an abandonment of his constitutionally protected possessory and privacy interest in the property.

Article I, section 9, of the Oregon Constitution, provides that

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

The state agrees that the duffel bag and the clothing that defendant sorted into the bag were effects protected from unreasonable search and seizure under Article I, section 9. The state also agrees that defendant had a possessory and privacy interest in the bag and the clothing before the bag was seized and searched. See State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986) (Article I, section 9, protects privacy and possessory interests). The state contends, however, that defendant "relinquished any possessory or privacy interest in the bag and its contents, by leaving the items on the ground when he agreed to talk to the officer, walking away from them and repeatedly denying that the items were his."

In State v. Morton, 326 Or. 466, 470, 953 P.2d 374 (1998), this court recognized that individual privacy rights can be "lost if, for example, the facts showed that the defendant had abandoned the container before the police seized it." In Morton, however, this court rejected the state's abandonment argument because the defendant had dropped the container (containing methamphetamine) as she was being seized under an invalid arrest warrant. Under the circumstances, to have allowed the evidence to be used against the defendant would have permitted the police to exploit an illegal arrest. Id. Although Morton is the most recent case in which this court considered the abandonment of property and its potential impact on individual possessory and privacy interests under Article I, section 9, this court previously dealt with this issue in a number of cases.

For example, in State v. Purvis, 249 Or. 404, 411, 438 P.2d 1002 (1968), a case decided under both the Fourth Amendment and Article I, section 9,⁴ the defendant sought to suppress evidence that police had obtained from hotel maids who had removed the evidence from ash trays and waste baskets of a hotel room that the defendant had occupied. This court rejected the defendant's privacy arguments, stating:

"Defendant's claim to privacy terminated with respect to items discarded by him and which he impliedly authorized to be hauled away. * * *

* * * * *

"The objects which defendant deposited in the ash trays and waste baskets can be regarded as abandoned property."

249 Or. at 410-11, 438 P.2d 1002.

In State v. Belcher, 306 Or. 343, 759 P.2d 1096 (1998), the defendant engaged in a fight at a tavern and ran from the scene before the police arrived, leaving behind a backpack. After reciting the trial court's findings that the defendant had "[left] the pack behind; [with] no indication when if ever he decided to return for it," this court agreed with the state's argument that the defendant had abandoned...