State v. Jacobsen, C-21188

• Decision Date: 31 July 1996
• Docket Number: C-21188
• Parties: STATE of Oregon, Respondent, v. Michael Otis JACOBSEN, Appellant. 93; CA A86835.
• Court: Oregon Court of Appeals

Page 677

922 P.2d 677

142 Or.App. 341

STATE of Oregon, Respondent, v. Michael Otis JACOBSEN, Appellant.

93C-21188; CA A86835.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 1995.

Decided July 31, 1996.

Ingrid A. MacFarlane, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

Janie M. Burcart, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

DEITS, Presiding Judge.

Defendant appeals from a judgment convicting him of being a felon in possession of a firearm, ORS 166.270. He assigns error to the denial of his motion to suppress evidence. We reverse.

The facts are undisputed. On October 5, 1993, at about 1:30 in the morning, Officer Baker, who was on routine patrol, noticed a pickup truck parked in the gravel parking lot of a public park's little league baseball field. A city ordinance provided that all city parks close at sunset, so Baker decided to investigate. Baker drove toward the pickup with the patrol car spotlight on. When he was within 100 to 150 feet of the pickup, defendant, wearing a stocking cap, jumped up out of the bed of the truck and approached Baker's car very quickly. Defendant walked up close to the car window and appeared to be upset at being awakened. Baker told defendant to step back and asked for his name. Defendant told Baker his name and volunteered that his driving privileges were suspended. Baker then told him that the park was closed, and defendant responded that he had had a fight with his girlfriend and was at the park "to have some place to sleep."

In the meantime, Baker had learned from dispatch that the pickup truck did not belong to defendant. Baker radioed for cover and officers LeDay and Jolly quickly responded. After their arrival, Baker asked defendant if he would walk over to the pickup with him. Defendant agreed and walked with the three officers to the rear of the pickup. The officers noticed that defendant had a lot of personal property in the bed and cab of the pickup. LeDay asked him if he could look around in the bed of the truck. Defendant consented and LeDay found no evidence of criminal activity. Baker then asked defendant if he could look in the cab of the truck. Defendant responded "sure" and gave Baker the keys to the cab. After unlocking both doors, Baker and LeDay started searching the passenger compartment, while defendant stood at the rear of the truck talking with Jolly.

During the search, Baker noticed a closed tote bag sitting on the driver's side seat. He unzipped the tote bag and discovered a closed pistol case. He then unzipped the pistol case and discovered a loaded .45 caliber semi-automatic pistol. Baker unloaded the pistol and asked defendant whether he knew anything about the gun. Defendant replied that he did not. LeDay testified that he heard defendant state that he did not know that the gun was "in there." After discovering the pistol, ¹ LeDay ran a criminal records check on defendant and discovered that he had been convicted of a felony. Defendant was then arrested and charged with being a felon in possession of a firearm. ORS 166.270.

Before trial, defendant moved to suppress the evidence of the pistol on the grounds that he was unlawfully stopped and that the officers conducted the search without a valid warrant or consent. The trial court denied the motion, ruling that defendant was not stopped and that the officers conducted the search pursuant to defendant's consent. After a stipulated facts trial, defendant was convicted of being a felon in possession of a firearm.

Defendant assigns error to the trial court's denial of his motion to suppress. On appeal, defendant's sole argument is that Baker exceeded the scope of his consent to search when he opened the closed duffel bag that contained the pistol, thus violating his rights under Article I, section 9, and the Fourth Amendment. The state argues that the search did not exceed the scope of defendant's consent.

Before we address the merits of that argument, however, we must first decide a threshold issue raised by the state. The state, relying on State v. Knox, 134 Or.App. 154, 894 P.2d 1185 (1995), argues, for the first time on appeal, that defendant's motion to suppress must necessarily fail ² because he disclaimed "any possessory or privacy interest in the pistol and its zippered case." Defendant responds that the state may not assert this issue on appeal because it was not preserved below. He also argues, that, in any event, our decision in Knox is distinguishable, because in this case, in contrast to Knox, defendant had a protected interest in the container that held the seized item. Thus, defendant asserts that here his disclaimer of interest in the pistol is immaterial.

In Knox, the defendant was taken to the police station in the back of a patrol car. On the way there, the officers noticed defendant fidgeting and bouncing around. When the officers removed him from the back seat, they noticed that his front pants pocket was turned inside-out. After the defendant was put in jail, an officer went back to the patrol car and looked under the rear seat. The officer found a zippered pouch containing cocaine. When confronted with the cocaine, the defendant said that he knew nothing about the pouch or the cocaine. Defendant was subsequently charged with, inter alia, being in possession of a controlled substance. Before trial defendant moved to suppress the evidence of the cocaine.

In Knox, the state argued, for the first time on appeal, that because defendant disclaimed any interest in the cocaine, he "could not be heard to complain about the constitutionality of its seizure." Id. at 160, 894 P.2d 1185. The defendant contended that we could not consider the state's argument, because it was not preserved in the trial court. We concluded that it was appropriate to consider the state's argument. We explained that we generally may affirm a ruling of the trial court on grounds different from those on which the court relied "provided that there [was] evidence in the record to support the alternative ground." Id. However, we also stated that we would not address the argument "if the parties were not allowed to develop the factual record at trial to address the issue raised for the first time on appeal." Id. at 161, 894 P.2d 1185. We held that we could consider the argument in that case, because the record clearly showed that defendant had disclaimed any interest in the items seized.

Similarly, in this case, we conclude that we may consider the state's argument, although not raised below, because it is an alternative ground on which to affirm the trial court's decision and because the record on the facts necessary to the state's argument is fully developed and defendant does not argue otherwise. The record is clear that defendant disclaimed any interest in the pistol. Baker testified that when confronted with the pistol, defendant responded, "I don't know anything about the gun." LeDay testified that he heard defendant state that he did not know that the gun was in the bag. Accordingly, we will consider the state's argument.

The state is essentially arguing that a defendant who disclaims any interest in an item seized cannot successfully argue for its suppression even though the police, in discovering it, may have infringed upon a protected interest in the place searched. We do not agree with that proposition nor is it consistent with our holdings. In State v. Akers, 138 Or.App. 289, 292, 907 P.2d 1131 (1995), rev. den., 323 Or. 153, 916 P.2d 312 (1996), we held that a defendant could challenge the lawfulness of a search or seizure under Article I, section 9, or the Fourth Amendment if "he had a protected interest in the particular item searched or seized." Thus, the fact that defendant here disclaimed any interest in the pistol does not mean that he cannot challenge the lawfulness of the search of the duffel bag containing it.

We conclude that the search here did infringe on defendant's interest in the duffel bag and that, absent some other basis on which to justify the search, the pistol must be suppressed. State v. Tanner, 304 Or. 312, 316, 745 P.2d 757 (1987). Contrary to the state's argument, Knox does not require a different conclusion. In Knox, the police seized the pouch of cocaine from the back seat of a patrol car, an area in which the defendant had no protected interest. Because the defendant had no protected interest in the area searched, it was essential that he assert some interest in the item seized. His failure to do so was therefore fatal to his motion to suppress that evidence. Here, the police seized the evidence that the defendant sought to suppress by searching an area--the duffel bag--in which he had some protected interest. ³ We therefore agree with defendant that Knox is distinguishable and, consequently, that defendant's disclaimer of interest in the pistol does not necessarily preclude him from successfully seeking its suppression based on an unlawful search of the bag.

We turn next to the scope of consent issue. We review the question of whether an officer's search exceeded the scope of a consent as a question of law, accepting the trial court's findings of historical facts if evidence exists to support them. State v. Arroyo-Sotelo, 131 Or.App. 290, 294-95, 884 P.2d 901 (1994). Because the search here proceeded without a warrant, the state has the burden of establishing its lawfulness. State v. Miller, 269 Or. 328, 524 P.2d 1399 (1974).

Defendant argues that Baker exceeded the scope of his consent to search the cab of the truck when he opened the zipped duffel bag. He argues that the facts here are analogous to those in Arroyo-Sotelo, where we concluded that the officer exceeded the scope of the...