State v. Gatto

210

Argued and submitted October 18, 2018, reversed and remanded May 13, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

PHILIP ANTHONY GATTO III,

Defendant-Appellant.

Washington County Circuit Court

16CR45834; A164144

466 P3d 981

In this criminal case, defendant assigns error to the trial court’s denial of

his motion to suppress evidence obtained following a warrantless search of his

hotel room. Defendant asserts that, under Article I, section 9, of the Oregon

Constitution, he retained a privacy interest in the hotel room because he had

not relinquished control of the room. The state remonstrates that the trial court

implicitly found that defendant had checked out of the hotel and, therefore, did

not have a privacy interest in the hotel room at the time the police entered the

room. Held: The trial court erred in denying defendant’s motion to suppress the

evidence found in defendant’shotel room and all evidence subsequently derived

from that search because defendant maintained a possessory and privacy inter-

est in the hotel room at the time police entered the room. The test for actual aban-

donment under Article I, section 9, is whether defendant’s statements and con-

duct demonstrated that he relinquished all constitutionally protected interests

in the room. Although the trial court found that the hotel staff believed defendant

checked out, that finding—without more—does not aid the state in meeting its

burden to show that defendant’s statements and conduct manifested an intent to

relinquish control of his hotel room.

Reversed and remanded.

Janelle F. Wipper, Judge.

Joshua B. Crowther argued the cause for appellant. Also

on the briefs was Ernest G. Lannet, Chief Defender, Criminal

Appellate Section, Office of Public Defense Services.

David B. Thompson argued the cause for respondent. Also

on the brief were Ellen F. Rosenblum, Attorney General and

Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge,

and Powers, Judge.*

______________

* Egan, C. J., vice Garrett, J. pro tempore.

Cite as 304 Or App 210 (2020) 211

POWERS, J.

Reversed and remanded.

212 State v. Gatto

POWERS, J.

In this criminal case, defendant appeals from a

judgment of conviction for three counts of aggravated iden-

tity theft, ORS 165.803, two counts of identity theft, ORS

165.800, resisting arrest, ORS 162.315, and theft in the

second degree, ORS 164.045. Defendant assigns error to

the trial court’s denial of his motion to suppress evidence

obtained following a warrantless search of his hotel room.

Defendant asserts that, under Article I, section 9, of the

Oregon Constitution, he retained a privacy interest in the

hotel room because he had not relinquished control of the

room. The state remonstrates that the trial court implicitly

found that defendant had checked out of the hotel and, there-

fore, did not have a privacy interest in the hotel room at the

time the police entered the room. For the reasons explained

below, we agree with defendant’s position, and, accordingly,

we reverse and remand.

We review the trial court’s denial of a defendant’s

motion to suppress for legal error and are bound by the trial

court’s findings of fact if there is constitutionally sufficient

evidence in the record to support those findings. State v.

South, 300 Or App 183, 184, 453 P3d 592 (2019), rev den, 366

Or 259 (2020). In the absence of an express factual finding,

we presume that the trial court found facts consistent with

its ultimate conclusion. Id. We will not, however, “presume

an implicit finding where the record does not support it” or

where the record “shows that such a finding was not part of

the trial court’s chain of reasoning forming the basis of its

ultimate legal conclusion.” State v. Adams, 302 Or App 730,

738, 462 P3d 761 (2020). We set out the facts consistent with

those standards.

Defendant reserved a hotel room in Tigard from

July 20, 2016, until July 22, 2016.1 On the morning of

July 22, a hotel employee noticed that her purse was miss-

ing from housekeeping’s laundry room and reported it to the

hotel’s operations manager. The operations manager, along

with the general manager, reviewed the hotel’s surveillance

1

Police later learned, weeks after the challenged search, that defendant

reserved the hotel room by using a stolen credit card.

Cite as 304 Or App 210 (2020) 213

video and observed an unknown individual enter the laun-

dry room and walk out with the employee’s purse.

A little before 8:00 a.m., Tigard police officers

responded to the hotel to investigate the stolen purse.

Shortly after the officers arrived, hotel staff directed Officer

Pastore’s attention to two individuals that, according to

hotel staff, were loading their bags into a white Ford Focus

and seemed to be leaving the hotel in a hurry. Pastore went

to look at the individuals in the parking lot and made note

of the Ford Focus, because it was parked in a handicap spot

but did not otherwise connect the individuals to the stolen

purse. He then proceeded to watch the surveillance video of

the theft, took some images of the surveillance footage, and

left to write up a police report. At the suppression hearing,

the operations manager testified that he had seen the same

individuals leave room 102, the room later associated with

defendant. The operations manager explained that the indi-

viduals were carrying bags and appeared to be in a hurry,

because they left “quicker than normal to the exit.”

The general manager and operations manager sus-

pected that the individuals who left room 102 had some-

thing to do with the missing purse. Although it was almost

three hours before the noon check-out time and there was

no indication that the occupants of room 102 had formally

checked out, the hotel staff entered the room to search for

the purse. The staff believed that the occupants had checked

out of the hotel, because they had observed the individuals

leave with bags and drive away.2 Inside the room, hotel staff

found several items: a brand-new vacuum; a brand-new set

of pots and pans; a new-looking pair of shoes; a laminated

paper that appeared to have several credit card numbers;

and a receipt from another hotel nearby. Believing that the

items looked suspicious, hotel staff again called the police to

investigate.

2

The operations manager testified that the hotel has a noon check-out time

and guests can check out in a variety of ways. Guests can notify hotel staff that

they are checking out by calling or going to the front desk; alternatively, guests

can simply leave without notifying the hotel. As noted above, defendant did not

notify the hotel that he checked out of room 102; rather, hotel staff acted on their

belief that defendant had checked out of the room before the noon check-out

time.

214 State v. Gatto

When the police arrived at the hotel a second time,

one of the managers told the officers that the individuals

in room 102 had checked out. Relying on that information,

the officers entered defendant’s hotel room. Pastore later

testified at the suppression hearing that, had he received

information that the occupants of the room had not checked

out, he would not have entered the room and would have

obtained a warrant. Along with the various items iden-

tified by the hotel staff, Pastore also found a bill for the

room with defendant’s name on it, a number of clear, print-

able labels with credit card numbers and names of people,

and a piece of paper with an additional credit card num-

ber written on it. Pastore seized the items as potential evi-

dence of forgery or fraud. Because the receipt found from

the other hotel indicated that the check-out day for that

hotel had been two days prior, Pastore concluded that it

was likely that the occupants of room 102 had also previ-

ously stayed there as well. Pastore decided to drive to the

other hotel to further investigate potential forgery and

fraud.

At the second hotel, Pastore found the same white

Ford Focus in the parking lot and recognized that the pas-

senger in the car—defendant—was the same person that

Pastore had seen on the surveillance video at the first hotel.

Pastore eventually arrested defendant and found, among

other items, two hotel keys to room 102 in defendant’s pos-

session along with other incriminating evidence in the Ford

Focus.

At trial, defendant moved to suppress the evidence

found in the hotel room, as well as any derivative evidence

from the search, under Article I, section 9, and the Fourth

Amendment to the United States Constitution. Defendant

argued that, given that it was well before the hotel’s check-

out time, defendant retained a privacy interest in the room.

Additionally, defendant asserted that hotel staff had no

authority to consent to a search. The state countered that

the search was reasonable because the hotel staff believed

that defendant had checked out, which had the legal effect

of abandoning his privacy interest in the room. Therefore,

the hotel staff had authority to consent to a search of the

Cite as 304 Or App 210 (2020) 215

hotel room.3 The trial court denied defendant’s motion to

suppress, concluding that—regardless of whether defendant

had checked out—the hotel staff believed that defendant had

checked out, relayed that information to the officers, and the

officers acted under the belief that defendant no longer had

an expectation of privacy in the room. Ultimately, the trial

court found defendant guilty on all counts.

On appeal, defendant challenges the trial court’s

ruling on his motion to suppress by renewing his argument

that he did not abandon his privacy interest in the hotel

room. Defendant contends that, because the search occurred

before the hotel’s check-out time, “he never expressly dis-

avowed his possessory interest in the room.” In particular,

defendant points out that he still had personal items in the

hotel room. Defendant further argues that the warrantless

search did not fall under the consent exception to the war-

rant requirement. The state, on the other hand, contends

that defendant’s rights under Article I, section 9, were not

implicated when police entered the hotel room, because

the trial court implicitly found that defendant had checked

out of the room. Specifically, the combination of hotel staff

observing individuals leave the hotel room with their bags

and then drive away, along with the nature of the items

left behind in the room, supported a reasonable conclusion

that defendant had checked out and abandoned any privacy

interest in the hotel room.4

3

At trial, the state also argued that defendant retained no privacy interest

in the room because he used a fraudulent credit card to obtain the room and

that the police would have inevitably discovered the evidence. The state does not

meaningfully pursue either of those arguments on appeal; therefore, we do not

address them.

4

At oral argument, the state also asserted that, because the hotel staff

entered and searched the hotel room before notifying police, the hotel staff’s

actions constituted a private search, and therefore, the subsequent search of the

room by police was not an unlawful search under Article I, section 9. See State v.

Stokke, 235 Or App 477, 480, 237 P3d 829, rev den, 349 Or 370 (2010) (concluding

that any protected privacy interest that the defendant had in the contents of

a hotel safe had been extinguished by hotel employees’ actions). Although the

state raised a private-search argument during the suppression hearing, the state

did not advance that argument in its answering brief. Accordingly, that argu-

ment is not properly presented on appeal. See Colton and Colton, 297 Or App 532,

547-48, 443 P3d 1160 (2019) (“We do not consider appellate arguments—even

if properly preserved—that are made on appeal for the first time during oral

argument.”). Further, to the extent that the state cites to a case in its memoran-

dum of additional authorities that discusses a private search extinguishing any

216 State v. Gatto

As an initial matter, the parties’ arguments presume—

as we do—that defendant had a constitutionally protected

possessory and privacy interest in the hotel room prior to

the hotel staff believing defendant had checked out. The

state argues that, because defendant’s actions demonstrate

that he had checked out and abandoned the room, defen-

dant no longer had a privacy interest in the hotel room

at the time police entered the room. Therefore, we under-

stand the state to advance an actual abandonment argu-

ment on appeal and do not understand it to be advancing

an argument that it was reasonable for police to believe that

defendant had checked out of the room.5 Thus, whether the

warrantless search of defendant’s hotel room was lawful

turns on whether defendant abandoned his constitutionally

protected privacy interest, the state’s argument is not properly raised on appeal.

See State v. Lobo, 261 Or App 741, 747 n 2, 322 P3d 573, rev den, 355 Or 880 (2014)

(explaining that “a memorandum of additional authorities is not a proper vehicle

in which to advance arguments that were not made in defendant’s opening or

reply briefs”); ORAP 5.85(2) (providing that a memorandum of additional author-

ities “[s]hall include citations to relevant cases and statutes and shall identify the

issue that has been previously briefed to which the new citations apply”).

5

In State v. Brown¸ 273 Or App 347, 352 n 4, 359 P3d 413 (2015), we noted

the development of two different formulations for abandonment, viz., actual or

apparent abandonment:

“In [State v.] Cook, [332 Or 601, 34 P3d 156 (2001),] the court stated that

the test for abandonment is whether the ‘defendant’s statements and conduct

demonstrated that he relinquished all constitutionally protected interests’ in

the property searched by police. Cook, 332 Or at 608. However, in determin-

ing whether the property at issue in that case had been abandoned, the court

applied a slightly different test, evaluating whether the searching officers

had reasonably concluded that the defendant had abandoned that property.

That is, the court examined whether the defendant’s statements and conduct

made it reasonable for officers to conclude that the defendant had relinquished

all constitutionally protected interests in the property at issue. Id. at 608-

09. In [State v.] Brown, [348 Or 293, 232 P3d 962 (2010),] the court, quoting

Cook, reiterated and then applied the first formulation of the test, but did

not analyze or mention the second formulation. See Brown, 348 Or at 302-05.

The difference between the two formulations is potentially significant. The

first appears to require that the state demonstrate actual abandonment; the

second seems to require that the state demonstrate apparent abandonment.”

(Emphasis in original.) In this case, because the parties on appeal have framed

the issue under the first formulation—focusing on whether defendant actually

abandoned any interest in the hotel room—we do not address the applicability of

the second formulation regarding apparent abandonment. See, e.g., In re Fadeley,

342 Or 403, 406 n 2, 153 P3d 682 (2007) (declining to reach merits of undeveloped

constitutional claims because “neither is sufficiently developed for review”); State

v. Montez, 309 Or 564, 604, 789 P2d 1352 (1990) (refusing to address a consti-

tutional claim because “a thorough and focused analysis” was not presented on

review).

Cite as 304 Or App 210 (2020) 217

protected possessory and privacy interests in the hotel room

at the time police entered and searched the room.

Article I, section 9, provides that, “[n]o law shall

violate the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable search,

or seizure[.]” A “search” for purposes of Article I, section 9,

occurs when the government “invades a protected privacy

interest”; that is, not the privacy interest “that one reason-

ably expects but the privacy to which one has a right.” State

v. Brown, 348 Or 293, 297-98, 232 P3d 962 (2010) (quoting

State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988)

(emphasis omitted)).

An individual’s rights under Article I, section 9,

are not violated “if that person abandons his or her posses-

sory or privacy interests in an item before it is searched.”

State v. Jones, 280 Or App 135, 138, 380 P3d 1132 (2016).

“Abandonment is a voluntary relinquishment of possessory

and privacy interests in an article of property that necessar-

ily involves both legal and factual questions.” State v. Knox,

160 Or App 668, 675, 984 P2d 294, rev den, 329 Or 527 (1999)

(internal quotation marks omitted). To determine whether a

defendant abandoned his or her possessory or privacy inter-

est, we look to “whether the defendant’s statements and

conduct demonstrated that he [or she] relinquished all con-

stitutionally protected interests in the articles of property.”

State v. Cook, 332 Or 601, 608, 34 P3d 156 (2001). That is,

the state must prove facts to support the conclusion that the

defendant’s statements and conduct manifested an intent to

abandon his or her constitutionally protected interests. See

State v. Voyles, 280 Or App 579, 584, 382 P3d 583, rev den,

360 Or 751 (2016) (stating that, when the state seizes evi-

dence in a warrantless search, “the state has the burden to

prove by a preponderance of the evidence that the search

was legal and did not violate Article I, section 9”).

In this case, the state failed to meet its burden to

show that defendant manifested an intent to abandon his

constitutionally protected interest in the hotel room. To the

extent that the state argues that “the trial court implicitly

found that [defendant] * * * had checked out,” and that we

should adhere to that finding, we disagree. In ruling on

218 State v. Gatto

defendant’s motion to suppress, the trial court explicitly

declined to find that defendant had checked out. The trial

court, instead, concluded that it did not need to decide that

factual issue. The trial court explained:

“[N]o one knows if [defendant] had actually fully intended to

check out of the room at that early hour. Frankly, it doesn’t

matter, given the fact that the hotel employees believed

that he had, told the officers that he had, and based on

that, the officers acted.

“* * * * *

“We have a situation in this particular case where the

officers believed, based on the hotel employee’s representa-

tion to them that they had checked out and had no expecta-

tion of privacy in that room anymore and acted accordingly.

“Therefore, I am denying the motion to suppress.”

We do not understand the trial court’s ruling as an implicit

finding that defendant checked out. Instead, in denying

defendant’s motion to suppress, the only finding that the

trial court made was that, given the hotel staff’s represen-

tations to the police, the officers believed that defendant had

checked out of the hotel room.6 Therefore, we cannot pre-

sume an implicit finding, because it was not necessary to the

trial court’s ruling. See, e.g., Pereida-Alba v. Coursey, 356 Or

654, 671, 342 P3d 70 (2015) (“If an implicit factual finding is

not necessary to a trial court’s ultimate conclusion or is not

supported by the record, then the presumption [under Ball

v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968)] does not

apply.”); State v. Jackson, 296 Or 430, 440, 677 P2d 21 (1984)

(declining to attribute an implicit factual finding to a trial

court when that court “never made any conclusions” regard-

ing that factual issue (emphasis omitted)). Moreover, because

the test for actual abandonment under Article I, section 9, is

6

In announcing its decision, the trial court explained that it was distin-

guishing this case from Stoner v. California, 376 US 483, 84 S Ct 889, 11 L Ed

2d 856 (1964), a Fourth Amendment case analyzing whether a hotel guest main-

tained an expectation of privacy in a hotel room. Given the trial court’s analysis

of Stoner, we do not understand the trial court to be making a ruling on the

apparent abandonment formulation under Article I, section 9, discussed above.

Moreover, because the parties have framed the issue on appeal on whether defen-

dant actually abandoned any interest in the hotel room, we do not address the

applicability of any apparent abandonment argument.

Cite as 304 Or App 210 (2020) 219

whether defendant’s statements and conduct demonstrated

that he relinquished all constitutionally protected interests

in the room, not whether it was reasonable for police to con-

clude that defendant abandoned the room, the trial court’s

finding that the hotel staff believed defendant checked out

does not aid the state in meeting its burden to show that

defendant’s statements and conduct manifested an intent to

relinquish control of his hotel room.

In this case, the state places significant weight on

the fact that hotel staff observed two individuals leaving

defendant’s hotel room with bags, loading their bags in the

car, and driving away. Although such actions may be one

indication that a hotel guest intends to check out of a hotel

and relinquish her or his room, those actions do not neces-

sarily suggest that a guest has checked out. For example,

it is not uncommon for guests to pack their car, to leave for

breakfast or to attend a morning meeting, and then to return

to their room before checking out for the day. Particularly

when, as in this case, a guest leaves a room well before the

hotel’s check-out time, it cannot be said that the guest has—

without more—abandoned a privacy interest in the hotel

room.

Here, apart from walking away from the hotel room

with some bags shortly before 8:00 a.m., defendant made no

statements or other actions to suggest that he was relin-

quishing control of the room. See State v. Brown, 273 Or App

347, 353, 359 P3d 413 (2015) (concluding that, because the

defendant’s “act of leaving the bag in the parking lot [and

walking away] was not accompanied by any words or con-

duct indicating that he intended to leave the bag behind,”

the defendant had not relinquished his interests in that

property). On the contrary, defendant never expressly con-

veyed to the hotel that he was checking out, defendant left

several items in the room that one might expect someone to

come back for, and defendant still had two keys to room 102

with him. Under those circumstances, we conclude that the

state did not offer sufficient evidence to permit the legal con-

clusion that defendant actually abandoned his constitution-

ally protected interest in the hotel room. Therefore, we hold

that defendant maintained a possessory and privacy inter-

est in the hotel room at the time police entered the room.

220 State v. Gatto

Accordingly, the trial court erred in denying defen-

dant’s motion to suppress the evidence found in defendant’s

hotel room and all evidence subsequently derived from that

search.

Reversed and remanded.