State v. Rounds

• Decision Date: 07 September 1984
• Docket Number: No. 22-253,22-253
• Citation: 69 Or.App. 229,685 P.2d 463
• Parties: STATE of Oregon, Respondent, v. Dylan E. ROUNDS, Appellant. ; CA A28504. . *
• Court: Oregon Court of Appeals

Page 463

685 P.2d 463

69 Or.App. 229

STATE of Oregon, Respondent, v. Dylan E. ROUNDS, Appellant.

No. 22-253; CA A28504.

Court of Appeals of Oregon In Banc. ^*

Argued and Submitted Feb. 29, 1984.

Resubmitted In Banc June 5, 1984.

Decided July 18, 1984.

Reconsideration Denied Sept. 7, 1984.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

David L. Runner, Certified Law Student, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Michael D. Reynolds, Asst. Atty. Gen., Salem.

ROSSMAN, Judge.

Defendant appeals his conviction for possession of a controlled substance, ORS 475.992, assigning error to the trial court's denial of his pretrial motion to suppress LSD seized from his backpack in his grandparents' carport. We affirm.

On July 30, 1982, during the "Garibaldi Days" festival, a city police officer was dispatched to an unoccupied house to investigate a report of a suspicious person. A neighbor had phoned the police stating that he had seen a "suspicious" man walk around the house and try the doors, set a backpack in the adjacent open carport and leave. The man returned to the backpack a short time later, retrieved a container from the pack and left on foot with the container about 15 minutes before the officer arrived. The neighbor told the officer that the owner of the house had asked him in the past to call the police if he saw anyone at the house.

The officer testified that he initially believed that there might have been a burglary in progress or that someone expected to spend the night in the house; during "Garibaldi Days" the trespass problem is worse than at any other time of year, he said. After checking all doors and windows of the house, he found no evidence of burglar's tools or attempted entry. He testified that he saw a backpack leaning against a woodpile in the covered carport. The backpack was closed by a flap at the top but was not tied shut. He opened the pack to look for identification, removed a sleeping bag and found a red and white cigarette box on top of other items in the pack. While acknowledging that he "very seldom" found identification in a cigarette box, he testified that he had opened the cigarette box for the sole purpose of looking for identification. He found some white stickers, which he suspected to be LSD. Continuing his examination, he found a bank book with defendant's name on it. The officer then took the pack and the contents to the police department. A warrant was obtained, and a search revealed no further evidence of criminal activity.

The police subsequently located defendant, who identified the pack. It was discovered that defendant was the homeowner's grandson. Defendant was charged with two counts of possession of a controlled substance. He pleaded not guilty and filed a motion to suppress evidence found during the warrantless search of his backpack. The trial court denied the motion. Defendant stipulated to the facts of this case and was found guilty of one count of possession of LSD after a trial to the court. The court made no findings relating to any "search" of the closed cigarette box, nor is any challenge made on this appeal regarding the propriety of opening that container to examine its contents. Thus, this case does not present a "closed container" issue. Accordingly, our review is focused only on the entry into defendant's backpack. With regard to that issue, the trial court found that defendant did not have an objective expectation of privacy in the backpack which society was prepared to recognize. The court found that it was reasonable under the "suspicious" circumstances for the officer to find out who had left the pack and that the officer was justified in searching the pack for identification.

Defendant argues on appeal that the warrantless search of his backpack violated his rights under both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Defendant's argument is misplaced. Because the officer was looking for identification and not evidence of a crime, this case involves a noncriminal, non-emergency situation. Accordingly, a very basic problem arises in attempting to apply the warrant requirements to the present search. In both Article I, section 9, and the Fourth Amendment, the warrant requirement is textually linked to the requirement that probable cause exists to search for evidence of a crime. In State v. Newman, 49 Or.App. 313, 316, 619 P.2d 930, reversed on other grounds 292 Or. 216, 222, 637 P.2d 143 (1980), cert. den. 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1321 (1982), we relied on South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 96 S.Ct. 3092, 3097 n. 5, 49 L.Ed.2d 1000, 1006 n. 5 (1976), in holding that, when a search is not for evidence of a crime, no probable cause is necessary, and hence the warrant requirement is inapplicable. ¹ We held instead that our analysis must center on the reasonableness of the search under the circumstances. 49 Or.App. at 317, 619 P.2d 930; State v. Perry, 66 Or.App. 318, 674 P.2d 1176 (1984).

Newman involved the search of an intoxicated, uncooperative defendant's purse for identification at the scene of a noncriminal, nonemergency stop. We held that the officers' actions were reasonable and that the controlled substance he found immediately on opening the purse was lawfully seized. 49 Or.App. at 321, 619 P.2d 930. On review, the Supreme Court held that it was not necessary to know the defendant's name to transport her to a detoxification facility. It applied a standard of reasonableness to reverse our holding and suppress the contraband evidence found in her purse. ² 292 Or. at 222, 637 P.2d 143.

Under the circumstances of this case, the search of defendant's backpack for identification was reasonable. The officer was summoned to a scene where an apparent stranger had left a backpack unattended in an open carport. To the best of his knowledge, neither the stranger nor the backpack had any right to be on the premises. Given that situation, it became his responsibility to determine the identity of the owner of the pack. He had no idea as to the owner's whereabouts or when he might return. It was reasonable for the officer to open the pack and examine its contents in a legitimate, good faith effort to identify its owner.

As the trial judge said, when denying the motion to suppress:

" * * * There is no question, in my mind, that it was reasonable for the officer, under those circumstances, to find out who the person was that left the back pack. I don't believe that it is necessary for the police--in a situation like Garibaldi Days, where a little one horse town has a couple thousand people in it, there is no reason to tie up a couple of officers staking out a back pack or maybe have the neighbors sit there and keep an eagle eye on it until somebody, who left his pack, decides to come back. * * * "

Because of the reasonableness of such an inspection, the officer's inadvertent discovery and subsequent seizure of the contraband clearly was lawful. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Bright, 8 Or.App. 202, 493 P.2d 757 (1972).

Moreover, we believe that the actions of the police were justified, even if we were to assume that the standard criminal search analysis was applicable to this case. Traditionally, a two-part "expectation of privacy" test has been applied to determine whether a search violates the protections of the Fourth Amendment: (1) whether defendant had a subjective expectation of privacy in his backpack; and (2) whether that expectation is one which society is prepared to recognize as reasonable. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). This test has been applied to analyze the constitutionality of searches under Article I, section 9, as well. See State v. Holt, 291 Or. 343, 630 P.2d 854 (1981). ³

Undoubtedly, defendant had some expectation of privacy in his backpack, but that expectation is not one which society would recognize as reasonable. Defendant was one of the many strangers to swell the population of a small town during a local festival. After unsuccessfully trying to enter an unoccupied house, he placed the backpack against a woodpile in the adjacent open carport. Soon thereafter, he departed from the area on foot, making no effort whatsoever to conceal the backpack or bothering to tie the flap. He left no note explaining his presence on the premises. None of that is evidence of a reasonable expectation of privacy, subjectively or objectively. In fact, it is evidence of the exact opposite. By leaving his backpack unattended, unsecured and in plain view in an open carport, it must be said that defendant assumed the risk that anyone entering the premises would discover the strange pack, open it and examine its contents.

Reasonableness is the key to this case. The officer's conduct in inspecting the backpack was reasonable under the circumstances, but defendant's expectation of privacy was not. We therefore hold that defendant's backpack was properly searched for identification and that the LSD discovered during that search was legally seized.

Affirmed.

WARREN, Judge, dissenting.

Defendant was charged with two counts of possession of a controlled substance. He pleaded not guilty and filed a motion to suppress evidence found during the warrantless search of his backpack. The trial court denied the motion, and defendant was found guilty of one count of possession of LSD after a trial to the court on stipulated facts. The trial court found that defendant did not have an objective expectation of privacy in the backpack which society was prepared to recognize and that it was reasonable under the "suspicious"...