State v. Woods, A158553
| Decision Date | 27 September 2017 |
| Docket Number | A158553 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Benjamin Dean WOODS, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.
Before DeVore, Presiding Judge, and Garrett, Judge, and Shorr, Judge.*
Defendant appeals from a judgment convicting him of five counts of encouraging child sexual abuse in the second degree. ORS 163.686. Defendant assigns error to the trial court's denial of his motion to suppress evidence. That evidence was obtained after an officer searched defendant's cell phone after a woman, who had kicked defendant out of her home, surrendered the phone to the police department. The state contends that the trial court correctly concluded that the officer's search was justified by the lost property exception to the warrant requirement of Article I, section 9, of the Oregon Constitution. We disagree with the state and conclude that the lost property exception did not justify the search in this case. Accordingly, we reverse and remand.
We are bound by the trial court's findings of historical fact that are supported by constitutionally sufficient evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). Further, if findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided in more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion. Id. Applying that standard of review, we recite the following facts.
One evening, Officer Grady Nelson of the Hubbard Police Department was pulling up to the Hubbard police station. As he approached the station, Nelson noticed a white sport utility vehicle (SUV) driving away. Because the police station had closed to the public 15 minutes earlier and, in Nelson's experience, people often show up at the police station when they are having a problem, Nelson recorded the SUV's license plate and ran it through a law enforcement and Oregon Driver and Motor Vehicle Services (DMV) data-base to determine the owner. Both of those databases indicated that the vehicle was unregistered. Nelson was also unable to identify the SUV's driver as it drove away.
After the SUV departed, the police department's finance director approached Nelson. The finance director told Nelson that a woman had come into the police station and told him that she had just kicked a man out of her home and that the man had left a phone behind. He also told Nelson that the woman had told him that she was forfeiting the phone to the police so that the man would not return to her home to retrieve it.
Nelson asked the finance director if he had obtained any information about who the woman was. The finance director said that he had not. He noted that the woman just dropped off the phone and left because he was locking up the police station. The finance director did say, however, that the woman was driving a white vehicle that Nelson assumed to be the white SUV that he had just watched leave.
After the finance director left, Nelson entered the police station and found the cell phone that the woman had left behind. At that point, in an attempt to ascertain the phone's owner, Nelson picked up the phone, opened it, and began searching for any indication of who owned the phone. He began by looking at the phone's "home screen" for any indication of an owner. After that search proved fruitless, he checked the call log for any names indicating a familial relationship, such as "mom," "dad," "wife," or "kid," so that he could call that person and determine who owned the phone. That search was similarly fruitless.
Finally, Nelson opened the photograph file on the phone; Nelson was acquainted with "most" of the people in the small town of Hubbard and thought he might recognize someone in the pictures. Nelson began searching for pictures of people or locations that he knew or license plates that he could run to track down the phone's owner. After looking at three or four images, during which he recognized the woman who he had had contact with earlier that day, Nelson stopped examining the pictures in the phone after he discovered an image of a naked female who he believed was a minor in a lewd sexual position. After finding the lewd image, Nelson immediately stopped searching the phone, closed the photos folder, and shut the phone's call log. While shutting down the call log, Nelson saw a text message screen that included the name "Wood." Nelson recognized that name as the last name of defendant, whom he had met earlier that day when responding to a call of an unwanted subject located in a woman's house. At that point, Nelson believed that the phone belonged to defendant and that the woman who dropped it off was the woman who had called the police earlier that day.
After viewing the text message screen, Nelson continued to shut the phone down. He removed the phone's battery and "put the phone into evidence." Nelson then went to the home that he had visited earlier and spoke with the woman who had dropped off the phone at the police station. That woman confirmed that defendant owned the phone and handed Nelson a purple file that she alleged that defendant also owned. She further stated that it contained child pornography. Nelson accepted the file folder, though he did not open it at that time. He returned to the police station and applied for a warrant to search both defendant's cell phone and the file folder. That warrant was issued, and, based on the results of the executed search, defendant was charged by indictment with 15 counts of encouraging child sexual abuse in the second degree. ORS 163.686.
Defendant filed a motion to suppress "[a]ll evidence derived from the warrantless search of [defendant's] cell phone," arguing that Nelson's initial search violated defendant's Article I, section 9, rights because, at that stage, Nelson lacked probable cause to believe that the phone contained evidence of a crime, and no exception to the Article I, section 9, warrant requirement applied. In response, the state argued that Nelson's search was justified under the lost property exception to the Article I, section 9, warrant requirement. After a hearing where only Nelson testified, the trial court found that Nelson's testimony was credible and concluded that his search was justified under the lost property exception to the warrant requirement. A short, stipulated-facts bench trial was held, and defendant was convicted of five counts of encouraging child sexual abuse in the second degree. Defendant now appeals and assigns error to the trial court's denial of his motion to suppress.
We review a trial court's denial of a defendant's motion to suppress evidence for errors of law. Ehly, 317 Or. at 75, 854 P.2d 421. Article I, section 9, provides:
"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."
An exception to the Article I, section 9, warrant requirement exists when an officer, while attempting to discover the owner of lost or misplaced property, searches a piece of property "in an attempt to identify the owner" of the property.1 State v. Pidcock, 306 Or. 335, 340, 759 P.2d 1092 (1988), cert. den., 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989).
In Pidcock, the Supreme Court noted that officers' authority to search lost property for its owner's identity comes from ORS 98.005.2 306 Or. at 339, 759 P.2d 1092. ORS 98.005, by its own terms and as interpreted by previous case law, applies in very specific circumstances. That statute provides:
ORS 98.005 (emphases added). Thus, as the Supreme Court noted in Pidcock, ORS 98.005"place[s] a burden on the finder of lost property to discover the owner of the property" when the property owner is unknown to the property's finder. 306 Or. at 340, 759 P.2d 1092. However, "[i]f the owner [of the lost property] is known [to the finder], ORS 98.005 does not apply." Id. ; see also State v. Paasch, 117 Or.App. 302, 306, 843 P.2d 1011 (1992) ().
Oregon case law has recognized two situations in which officers are authorized to search lost property for the owner's identifying information under ORS 98.005. First, in Pidcock, the Supreme Court noted that officers are authorized to search lost property...
To continue reading
Request your trial
-
State v. Bunch
...belief that the property is lost and that belief needs to be objectively reasonable under the circumstances." State v. Woods , 288 Or. App. 47, 54, 405 P.3d 169 (2017). As noted, the trial court concluded that Volin could search the purse as lost property. The state does not attempt to just......
-
State v. Lewis
...belief that the property is lost and that belief needs to be ‘objectively reasonable under the circumstances.’ " State v. Woods , 288 Or. App. 47, 54, 405 P.3d 169 (2017) (quoting State v. Vanburen , 262 Or. App. 715, 728, 337 P.3d 831 (2014) ). Lost property is "property which the owner ha......
-
Dischinger Orthodontics, PC v. Regence Bluecross Blueshield of Or.
...because a party could avoid the limitations of the statutory provision simply by styling the complaint as one for declaratory relief. We 405 P.3d 169agree with the trial court that ORS 65.084 controls and conclude that the trial court did not err in 288 Or.App. 306granting defendant's motio......