State v. Dickson

• Decision Date: 25 April 2001
• Citation: 24 P.3d 909,173 Or. App. 567
• Parties: STATE of Oregon, Appellant, v. Shane Russell DICKSON, Respondent.
• Court: Oregon Court of Appeals

24 P.3d 909

173 Or. App. 567

STATE of Oregon, Appellant, v. Shane Russell DICKSON, Respondent.

(98092881FA; CA A105766)

Court of Appeals of Oregon.

Argued and submitted October 2, 2000.

Decided April 25, 2001.

Thomas C. Patton, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Richard Maizels, Portland, argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

The state appeals from a pretrial order excluding evidence of a backpack obtained during a search, pursuant to a warrant, of a residence and its curtilage. The state argues that the trial court erred in suppressing the evidence, because the backpack was within the scope of the warrant and because defendant had abandoned any privacy interest he had in the backpack. We reverse the order of suppression and remand for further proceedings.

Police officers obtained a warrant to search the house and curtilage of a Linn County residence for "marijuana, controlled substances" and related items and documents. The warrant also named three persons to be searched, not including defendant. A team of police officers drove to the residence in several unmarked and marked vehicles, with the unmarked vehicles in the lead. As the vehicles approached the residence, defendant was leaving from the front door. He was carrying a green and black backpack over his shoulder. Defendant looked at the approaching vehicles, then took off running along the side of the house.

The officers got out of the vehicles, yelling out that they were police and that they had a search warrant. The officers' clothing also identified them as police officers. At least one officer pursued defendant. Approximately 15 to 20 feet from the house and 20 to 30 feet from the front door, defendant dropped the backpack. Officers caught defendant approximately 15 feet from where he had dropped the backpack. After the officers had placed defendant in handcuffs, one officer asked him about the backpack; defendant indicated that he was declining to make any statements.

The officers took defendant into the house and gave Miranda warnings to him and to the other occupants. One officer went back outside to search the curtilage. The officer recovered the backpack, opened it, and found a "substantial" quantity of marijuana.

Relying on Article I, section 9, of the Oregon Constitution,¹ and the Fourth Amendment to the United States Constitution,² defendant moved to suppress evidence of the backpack and its contents. The trial court granted the motion, concluding that, although the warrant authorized the search of the residence's curtilage and the backpack was found within the curtilage, the backpack was not subject to search under the warrant because it was "still identifiable to" defendant. The court reasoned that police officers saw defendant with the backpack, that they "clearly saw" him drop it, and that defendant did not abandon the backpack by dropping it, because he made no attempt to hide it; in addition, he neither denied nor admitted ownership of it. The trial court also concluded that the backpack was not searchable under any exception to the warrant requirement, such as the exception for a search incident to arrest or for officer safety purposes.

In its first assignment of error, the state argues that the trial court erred in ruling that the backpack was not subject to search under the warrant. Specifically, the state argues that the backpack was within the curtilage of the residence and that defendant relinquished any privacy interest in it by dropping it in the path of pursuing officers who had announced their intention to conduct a search and by declining to assert verbally any privacy interest in the backpack. In its second assignment of error, the state argues, in effect, that, even assuming the backpack was not subject to search under the warrant, the trial court erred in ruling that defendant did not abandon the backpack, because under the totality of the circumstances in this case, including the lawful presence and conduct of the police, defendant relinquished his privacy or possessory interest in it. Thus, the state asserts, it carried its burden to prove that a warrantless search of the backpack was lawful.

In response, defendant concedes that he dropped the backpack within the curtilage of the residence. But, relying on State v. Morton, 326 Or. 466, 953 P.2d 374 (1998), he argues that he had a constitutionally protected privacy interest in the backpack that he did not abandon by dropping it and that the search of the backpack was not authorized under either the warrant or any exception to the warrant requirement.

In a suppression hearing, the state has the burden of proving that the defendant lacks a constitutionally protected privacy interest in the evidence sought to be suppressed. State v. Knox, 160 Or.App. 668, 673, 984 P.2d 294, rev. den. 329 Or. 527, 994 P.2d 128 (1999). Under ORS 133.693(4), where the motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution. We review the trial court's order suppressing the evidence for errors of law. State v. Stroup, 147 Or. App. 118, 120, 935 P.2d 438 (1997). In reviewing the order, we are bound by the trial court's findings of historical fact if they are supported by evidence in the record. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). Where a trial court does not make findings on a particular issue, we presume that it decided the facts in a manner consistent with its ultimate conclusion relating to the lawfulness of the seizure and search. State v. Coleman, 167 Or.App. 86, 95, 2 P.3d 399 (2000) (citing State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993)).

We begin by considering whether, at the time the backpack was seized and searched, defendant held a privacy and possessory interest in it. If we determine that he held such an interest, we then consider whether the police nevertheless were authorized to seize and search the backpack pursuant to the warrant or some exception to the warrant requirement. If, on the other hand, we determine that defendant had no such interest by reason of having abandoned that interest, we need not consider whether the backpack was within the scope of the warrant or was searchable by reason of some exception to the warrant requirement. See Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment § 2.6(b), 573 (3d ed 1996) (the protections of the Fourth Amendment do not extend to abandoned property).

Morton bears directly on our first inquiry. In that case, the defendant was arrested pursuant to a warrant. While officers were placing her under arrest, a plastic container fell from her jacket. The defendant denied ownership of the container and denied any knowledge of its contents. A police officer opened the container and found drugs and drug paraphernalia. Morton, 326 Or. at 468-69,953 P.2d 374. The Supreme Court held the search invalid. The court explained that, although the defendant "denied vehemently" any ownership or knowledge of the container, it was "uncontradicted" that the defendant "had, in fact, been in personal possession of the container * * * only moments before it came into possession of the police. * * * It follows that she was entitled to challenge, under Article I, section 9, the police seizure of the container." Id. at 469-70, 953 P.2d 374. The court also explained that the defendant had not "lost" the right to move to suppress the evidence by abandoning the container; rather, she dropped the container only after the police had begun the process of arresting her. The seizure of the container therefore was authorized only if it occurred under some exception to the warrant requirement —in that case, the exception for a search incident to arrest. The court concluded that, because the arrest warrant was invalid, the seizure and search of the container also were unlawful. Id. at 471, 953 P.2d 374. See also State v. Tucker, 330 Or. 85, 91, 997 P.2d 182 (2000)

("Morton demonstrates that a defendant's denial of a protected interest is not necessarily dispositive of whether the state has met its burden of proving the validity of a warrantless search.").³

In several cases decided after Morton, we have had the opportunity to elaborate on the standard applicable to abandonment of a privacy and possessory interest in property. In the first of those cases, Knox, the police conducted an illegal search of the defendant's car, then arrested the defendant and placed him in the back seat of a patrol car. 160 Or.App. at 670-71, 984 P.2d 294. Although the defendant had earlier told the police that he had money in his pocket, when police searched the defendant at the station house, his pocket was empty. The police checked the back seat of the patrol car and found a pouch containing cocaine. The defendant moved to suppress. Id.

Applying Morton, we explained that "`[a]bandonment' is a voluntary relinquishment of a possessory and privacy interest in an article of property that involves both legal and factual questions." Id. at 675, 984 P.2d 294. As to the legal standards, under the Fourth Amendment, "the question is whether a defendant * * * has relinquished a reasonable expectation of privacy so that the seizure [and search are] reasonable." Id. However, if the defendant's relinquishment has been "coerced by illegal police conduct," the defendant will not have abandoned his or her interest in the property in the constitutional sense. Id. at 675-76, 984 P.2d 294 (citing LaFave, 1 Search and Seizure § 2.6(b), 574). Similarly, under Article I, section 9, the proper inquiry is whether the defendant relinquished his or her privacy and possessory interest in the property...