State v. Lewis

492

Argued and submitted November 18, 2019, reversed and remanded

September 16, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

NICHOLAS VERN LEWIS,

aka Nicholas V. Lewis,

Defendant-Appellant.

Clackamas County Circuit Court

16CR45285; A167134

474 P3d 907

Defendant appeals after entering a conditional plea, assigning error to the

trial court’s denial of his motion to suppress evidence discovered in his back-

pack during a warrantless search by police. On appeal, defendant asserts that

the warrantless search was unlawful in violation of Article I, section 9, of the

Oregon Constitution. The state argues that defendant abandoned his constitu-

tionally protected interests in the backpack when he left it inside of a stolen

vehicle and that, therefore, defendant is not entitled to suppression of the evi-

dence. Alternatively, the state contends that the warrantless search was per-

missible under the exception to the warrant requirement for lost property.

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

failed to meet its burden of proving that defendant unequivocally manifested

an intention to relinquish his protected interests in the backpack. Further, the

search did not fall within the exception to the warrant requirement for lost prop-

erty because the officer’s belief that the backpack was lost was not reasonable

under the circumstances.

Reversed and remanded.

Douglas V. Van Dyk, Judge.

Andrew D. Robinson, Deputy Public Defender, argued the

cause for appellant. Also 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. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and

James, Judge.

Cite as 306 Or App 492 (2020) 493

SHORR, J.

Reversed and remanded.

494 State v. Lewis

SHORR, J.

Defendant appeals after entering a conditional plea

in which he reserved a right to challenge multiple rulings

by the trial court. Defendant raises 13 assignments of error.

We write only to address defendant’s twelfth assignment of

error, in which defendant challenges the trial court’s denial

of his motion to suppress evidence discovered in his back-

pack during a warrantless search.1 We affirm defendant’s

first through seventh, ninth through eleventh, and thir-

teenth assignments of error without written discussion. We

do not reach defendant’s eighth assignment of error.2 We

conclude that the trial court erred in denying defendant’s

motion to suppress, because the state failed to meet its bur-

den of proving that defendant unequivocally relinquished

his constitutionally protected interests in the backpack.

Accordingly, we reverse and remand to the trial court for

further proceedings.

We state the facts consistently with the trial court’s

findings and its denial of defendant’s motion to suppress.

State v. Bunch, 305 Or App 61, 62, 468 P3d 973 (2020). On

March 6, 2016, Officer Mansfield responded to a report of an

intoxicated driver. The 9-1-1 caller reported that a Toyota

Tundra truck was swerving and that the driver was a man

and the passenger was a woman. At some point, according

to the caller, the man and woman switched roles so that the

woman was driving and the man was the passenger.

Another officer, Warner, located the truck at a gas

station before Mansfield arrived. When Mansfield arrived,

Warner told Mansfield that the man, defendant, claimed to

1

In reserving his rights to challenge the trial court’s rulings, defendant

refers to this ruling as the denial of “Defendant’s Second Motion to Suppress

(Washington County).”

2

Defendant’s eighth assignment of error pertains to the trial court’s disal-

lowance of defendant’s demurrer to Count 2 of the indictment, which, in reserv-

ing his right to challenge the court’s rulings, defendant refers to as “Demurrer

to Count 2 (Identity Theft) for Violation of ORS 132.630.” Although we do not

reach defendant’s eighth assignment of error or the arguments therein, should

defendant withdraw his plea on remand, he may raise those arguments again,

and the trial court may choose to consider its ruling anew with respect to those

arguments.

Cite as 306 Or App 492 (2020) 495

be the registered owner of the truck.3 Dispatch reported to

Mansfield that the registered owner of the truck was born

in 1946, but defendant appeared to be significantly younger.

Defendant and his friend, Hasbrook, entered the conve-

nience store adjoining the gas station. When defendant and

Hasbrook exited the store, Mansfield spoke with defendant,

who denied driving the truck. Defendant also told Mansfield

that he was not the registered owner.

While defendant was speaking with the officers,

Hasbrook drove the truck away. Warner and Mansfield con-

tinued to investigate defendant for driving under the influ-

ence of intoxicants (DUII). Approximately 10 to 15 minutes

after Hasbrook drove away, the officers determined that

defendant was not impaired, and defendant left on foot. After

defendant left the gas station, the officers became suspicious

that the truck was stolen and decided to search the nearby

area to determine if defendant and Hasbrook “had dumped

the car somewhere.” The officers found the truck unoccupied

and parked “just north of the gas station.” Mansfield testi-

fied that the truck was parked “[m]aybe less than a block” or

“[m]aybe 40 yards” away from the gas station.

Warner contacted the registered owner of the truck,

who confirmed that he had not authorized anyone to use the

truck or remove it from his garage. The officers called a K-9

unit to assist them. While the officers were waiting for that

unit, Hasbrook emerged from nearby bushes. The officers

arrested her. With the assistance of the K-9 unit, the officers

also located defendant hiding in a dumpster “just north” of

the gas station. Defendant was arrested and taken into cus-

tody. Mansfield searched defendant’s person and found a

key fob to the truck in his possession.

The officers noticed two backpacks in the back seat

of the truck. Mansfield called the owner to ask if he had

left backpacks in the truck. The owner replied that he had

not and gave Mansfield permission to search the vehicle.

Mansfield removed the backpacks, and another officer trans-

ported them to the police station. According to Mansfield,

3

Because Warner did not testify at the motion to suppress hearing, the

record is minimal with respect to Warner’s interaction with defendant and the

exact progression of events that occurred before Mansfield’s arrival.

496 State v. Lewis

he did not search the backpacks at the scene because he

did not know who owned them. Although Mansfield did not

know who the backpacks belonged to at that time, he tes-

tified that it had “crossed [his] mind” that the backpacks

could belong to defendant and Hasbrook. Mansfield did not

speak to defendant or Hasbrook about the backpacks, nor

did any other officer at the scene. The next day, Mansfield

and Warner searched the backpacks. Mansfield testified

that their purpose in searching the backpacks was to deter-

mine who they belonged to. The officers discovered evidence

in one of the backpacks linking defendant to a burglary.

The state charged defendant with various crimes

related to that alleged burglary and the theft of the Toyota

Tundra. Defendant moved to suppress the evidence dis-

covered in the backpack, contending that the state unlaw-

fully searched the backpack without a warrant in violation

of Article I, section 9, of the Oregon Constitution and the

Fourth Amendment to the United States Constitution. The

state argued that defendant had abandoned the backpack

when he left it in the stolen car and, therefore, defendant

was not entitled to suppression of the evidence. The state

also contended that, if defendant had not abandoned the

backpack, then the warrantless search was permissible

under the exception to the warrant requirement for lost

property.

In a letter opinion, the trial court denied defen-

dant’s motion, concluding that defendant “abandoned what-

ever constitutionally protected interest he might have had

in the [backpacks] when he left them with Ms. Hasbrook

in the stolen Tundra.” The court attributed that conclu-

sion to three factors. First, “no police instruction or conduct

caused defendant to separate himself from the [backpacks].”

Second, “[t]he vehicle was not found on a private property

with any apparent connection to defendant.” Third, “[l]eav-

ing unmarked, untagged bags inside someone else’s truck

and walking away, particularly when the truck is stolen, is

conduct that demonstrates a relinquishment of any consti-

tutionally protected right of privacy in the property.” Thus,

according to the court, defendant “did not manifest an inten-

tion to maintain control over the property.”

Cite as 306 Or App 492 (2020) 497

On appeal, defendant assigns error to the trial

court’s denial of his motion to suppress the evidence discov-

ered inside of the backpack. Defendant contends that the

state failed to meet its burden of proving that defendant

relinquished his constitutionally protected rights in the

backpack by abandoning it. Therefore, defendant asserts,

the warrantless search violated defendant’s rights under

Article I, section 9.4 The state reprises its arguments from

the trial court, that defendant abandoned the backpack

when he left it in the truck, and that, if defendant did not

abandon the backpack, then the warrantless search was

permissible under the exception to the warrant requirement

for lost property.

We begin by addressing the state’s contention that

the search fell within the exception to the warrant require-

ment for lost property. Article I, section 9, protects people

against unreasonable searches and seizures. Subject to lim-

ited exceptions, a warrantless search by the police of a per-

son’s property is per se unreasonable. Bunch, 305 Or App at

65. Where, as here, the police conduct a warrantless search,

the state bears the burden of proving that the warrantless

search did not violate a protected interest of the defendant.

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

Under certain conditions, police may search lost

property without a warrant to determine the identity of

the owner. “To search lost property, officers need to have a

good faith, subjective belief that the property is lost and that

belief needs to be ‘objectively reasonable under the circum-

stances.’ ” State v. Woods, 288 Or App 47, 54, 405 P3d 169

(2017) (quoting State v. Vanburen, 262 Or App 715, 728, 327

P3d 555 (2014)). Lost property is “property which the owner

has unwittingly suffered to pass out of his possession, and

the whereabouts of which he has no knowledge.” Id.

Applying the above standard, we conclude that

the search of defendant’s backpack does not fall within

the exception to the warrant requirement for lost property.

Mansfield testified that it had “crossed [his] mind” that the

4

Defendant does not argue, as he did to the trial court, that the warrantless

search violated defendant’s rights under the Fourth Amendment.

498 State v. Lewis

backpacks might belong to defendant and his friend. That

testimony suggests that, although the owner’s identity may

have been uncertain, Mansfield did not have a subjective

belief that the backpacks were lost. See Bunch, 305 Or App

at 66 (explaining that “uncertainty as to * * * ownership

does not translate into a subjective belief that [the property]

was lost”). And, even assuming that Mansfield did believe

that the backpacks were lost, that belief was not reasonable

under the circumstances. When Mansfield searched defen-

dant’s backpack, he knew that the backpacks were found in

a stolen vehicle and that they did not belong to the vehicle’s

owner. Mansfield also knew that defendant and his friend

were driving that stolen vehicle immediately prior to his dis-

covery of the backpacks. Under those circumstances, it was

not reasonable for Mansfield to believe the backpacks were

lost. Therefore, the search does not fall within the exception

to the warrant requirement for lost property. Because the

state has not presented alternative exceptions to the war-

rant requirement that apply here, the search was unreason-

able in violation of Article I, section 9.

Having concluded that the warrantless search was

unlawful, we must determine whether that search violated

defendant’s Article I, section 9, rights. Id. at 66-67; see also

State v. Tanner, 304 Or 312, 320, 745 P2d 757 (1987) (“The

question of whose privacy rights have been violated is log-

ically separate from the question whether section 9 has

been violated.”). Whether the search of defendant’s back-

pack violated defendant’s rights under Article I, section 9,

turns on whether defendant had a constitutionally protected

privacy interest in the backpack at the time of the search.

See Bunch, 305 Or App at 67. “A defendant may abandon

his constitutionally protected interests in property * * * by

voluntarily manifesting an intention to relinquish them, in

which case a warrantless search of the property does not

violate his rights.” State v. Montiel-Delvalle, 304 Or App 699,

706, 468 P3d 995 (2020).

Here, defendant had constitutionally protected

possessory and privacy interests in the backpack before

Hasbrook drove the truck away with the backpack inside.

See State v. Standish, 197 Or App 96, 99-100, 104 P3d 624,

rev dismissed as improvidently allowed, 339 Or 450 (2005)

Cite as 306 Or App 492 (2020) 499

(“If a defendant has actual or constructive possession of

property immediately before it is searched, the defendant

has a constitutionally protected possessory interest in that

property.”). Thus, the specific issue before us is whether

defendant abandoned his constitutionally protected inter-

ests after he stepped out of the car and Hasbrook drove

away.

“[T]he determination whether a defendant has relin-

quished a constitutionally protected interest in an article

of property involves both factual and legal questions, which

this court reviews in the same manner that it reviews other

search or seizure questions arising under Article I, section 9.”

Cook, 332 Or at 607. We defer to the trial court’s findings of

historical fact if evidence supports them but determine as a

matter of law whether those facts are sufficient to constitute

abandonment. Id. The state bears the burden of proving by

a preponderance of the evidence that a defendant has aban-

doned his constitutionally protected interests in an article

of property. State v. Dickson, 173 Or App 567, 571, 24 P3d

909, rev den, 332 Or 559 (2001).

“In determining whether a person has abandoned a

constitutionally protected interest in an article of property,

the court considers whether the defendant’s statements and

conduct, in light of the totality of the circumstances, demon-

strated that the person unequivocally relinquished all con-

stitutionally protected interests in the property.” Bunch, 305

Or App at 67 (citing State v. Brown, 348 Or 293, 302, 232 P3d

962 (2010)). Several factors are relevant to that determina-

tion, including: (1) “whether the defendant separated himself

from the property as a result of police instruction or illegal

police conduct”; (2) “whether the defendant left the property

on public or private property”; (3) “whether the defendant

made any attempt to hide the property or in any other way

manifest an intention to the police that he * * * was attempt-

ing to maintain control over it”; (4) “whether the defendant

has left his property under circumstances which objectively

make it likely that others will inspect it”; (5) “whether the

defendant has placed the item in plain view”; and (6) “whether

the defendant gave up his rights to control the disposition of

the property.” State v. Ipsen (A157082), 288 Or App 395, 399-

400, 406 P3d 105 (2017) (internal quotation marks omitted).

500 State v. Lewis

Before considering the present case, we briefly sum-

marize several cases which aid in our application of the above

factors. In State v. Brown, we concluded that the defendant

did not abandon a McDonald’s bag that he set down while

conversing with a police officer and then left in a parking lot

when he went across the street with that officer. 273 Or App

347, 352, 359 P3d 413 (2015). We explained that the defen-

dant made no statements disclaiming his interests in the

bag and that “setting what appears to be a sack lunch and

a drink on a nearby flat surface while carrying on a conver-

sation is not conduct that relinquishes all constitutionally

protected interests in the property.” Id. at 353. We acknowl-

edged that the “low-value” nature of the bag “could point

toward a conclusion of abandonment” but determined that

“that one circumstance, when viewed in conjunction with all

of the other circumstances” was “not sufficient to support

the conclusion that defendant relinquished all constitution-

ally protected interests in the bag.” Id. at 354. We further

noted that, when the defendant moved across the street with

the officer, he “did not move far from the bag” and “had been

separated from the bag for only 10 to 20 minutes.” Id. at 353.

Under those circumstances, it was as likely that the defen-

dant left the bag “out of inadvertence” and “did not intend to

give up his interests in the bag” as it was that the defendant

“discarded the bag.” Id.

In State v. Kendall, we held that, considering “the

entire circumstances,” the defendant did not abandon his

protected interests in his bicycle or the bag affixed to it

when he went inside of a house, leaving the bike outside on

an adjoining lot. 173 Or App 487, 491, 24 P3d 914 (2001).

We reasoned that, although “defendant separated himself

from his possessions while being pursued by the police,

he placed those possessions in the bushes on private prop-

erty” as opposed to a public place “where it was likely that

members of the public would inspect them.” Id. at 491-92.

Additionally, we concluded that “the nature of the property

involved” was significant because it was “common for a per-

son to leave property of [that] nature outdoors, unattended.”

Id. at 492.

In contrast, we concluded the defendant did aban-

don his property in Dickson, 173 Or App at 576. There, the

Cite as 306 Or App 492 (2020) 501

defendant saw the police approaching, ran, and dropped his

backpack “in plain sight of officers in close pursuit of him.”

Id. at 575. We explained that the defendant did not take “any

action indicating that he was attempting to maintain con-

trol of the backpack, such as hiding it in a place from which

he might later be able to retrieve it.” Id. Rather, when the

defendant dropped the backpack in front of the officers who

pursued him, “[t]hat circumstance made it objectively likely

that others would inspect the backpack” and indicated that

the defendant “did not intend to reclaim the backpack.” Id.

We conclude that, considering each factor and the

totality of the circumstances, defendant did not unequivo-

cally manifest an intention to relinquish his constitution-

ally protected interests in the backpack. We consider each

factor in turn, but the key inquiry remains whether defen-

dant, through words or conduct, unequivocally manifested

an intention to relinquish his constitutionally protected

interests. Bunch, 305 Or App at 69 (“Abandonment requires

an unequivocal manifestation of an intention to relinquish

all constitutionally protected interests in the affected prop-

erty.”); see also Cook, 332 Or at 608 (“[F]or constitutional

purposes, the question to be resolved * * * is whether the

defendant’s statements and conduct demonstrated that he

relinquished all constitutionally protected interests in the

articles of property.”).

Here, the state correctly asserts that defendant’s

separation from the backpack was not the result of police

instruction or illegal police conduct. Defendant left the

backpack in plain view in the back seat of a stolen truck

to which defendant had no legal right. Although that truck

was parked on private property—the gas station parking

lot—that property was open to the public.

Nevertheless, defendant’s conduct manifested an

intention to maintain control of his backpack. Initially,

defendant left his backpack in a truck while shopping at a

convenience store adjoining the gas station where the truck

was parked. Defendant’s choice to leave the backpack in a

location that was generally inaccessible to the public, but

would likely remain accessible to him, reflects an intent

to reclaim the backpack. Like the defendant in Brown,

502 State v. Lewis

defendant made no statements disclaiming ownership of the

backpack, and he remained physically near the backpack—

he did not leave the gas station until after Hasbrook drove

away. And, as in Brown and Kendall, defendant’s treatment

of his property was common—people regularly leave items

in parked cars while shopping or running errands close by

with the expectation that those items will not be subject to

inspection. See Kendall, 173 Or App at 492 (noting that it is

common to leave vehicles unattended outdoors). Such behav-

ior reflects an intent to maintain control over the property,

not abandon it.

Those same facts—defendant’s proximity to the car

and backpack, the placement of the backpack in an appar-

ently secure yet accessible location, and defendant’s treat-

ment of the backpack in an ordinary manner—lead us to

conclude that defendant did not give up his rights to con-

trol the disposition of the property. “Nothing in the case

law under Article I, section 9, suggests that a citizen must

keep his hands on his property at all times—even in public

places—in order to retain a protected interest in that prop-

erty.” Brown, 273 Or App at 353.

Finally, defendant did not leave the backpack

under circumstances that made it likely that others would

inspect it. As noted, the backpack was in a car, and thus

inaccessible to passersby and somewhat shielded from pub-

lic view. Moreover, the circumstances here are unlike those

in Dickson, where the defendant dropped his backpack “in

plain sight of officers in close pursuit of him.” 173 Or App at

575. Under those circumstances, the defendant’s behavior

indicated to the police that the backpack likely contained

evidence of a crime. That was not so in the present case. The

officers did not discover defendant’s backpack while in “close

pursuit” of defendant as he fled.

The state asserts that defendant’s willingness to

leave the backpack in a stolen vehicle demonstrates his

intention to relinquish his constitutional interests in the

backpack. According to the state, that is so because defen-

dant “had no right to the truck” and, thus, “had no reason

to believe the truck was a secure location.” In support of

its argument, the state points to Stubblefield. There, the

Cite as 306 Or App 492 (2020) 503

defendant crashed a stolen truck while attempting to elude

a police officer in close pursuit. State v. Stubblefield, 279 Or

App 483, 484, 380 P3d 1126, rev den, 360 Or 697 (2016).

After the crash, the officer ordered the defendant to exit the

truck, but the defendant ran from the truck instead. We held

that the defendant had abandoned closed containers within

the truck, because the defendant “left the containers in a

stolen truck—a location where defendant would have had

no lawful authority to retrieve them, absent the (unlikely)

assistance of the truck’s owner, something that defendant

would have known when he decided to leave the containers

behind.” Id. at 489.

The determinative facts in Stubblefield are distin-

guishable from those in the present case. There, the defen-

dant left the crashed car unoccupied while fleeing from an

officer in pursuit. The Stubblefield defendant would have

known that the stolen vehicle would be towed and subject to

a search in the immediate future. Under the circumstances

of the present case, defendant had far less reason to believe

that the vehicle would be subject to an immediate search or

seizure by the police. Therefore, his act of leaving the back-

pack in a truck, even a stolen one, does not unequivocally

indicate defendant’s intent to abandon it.

We reach the same result when considering defen-

dant’s second separation from the backpack, when Hasbrook

drove the truck away from the gas station. Again, we note that

the applicable test is whether defendant “voluntarily mani-

fest[ed] an intention to relinquish [his protected interests].”

Montiel-Delvalle, 304 Or App at 706. The state contends that

defendant “acceded to his companion driving away in [the

truck],” and, therefore, that his failure to act indicated defen-

dant’s intent to relinquish his protected interests in the back-

pack. We disagree. Defendant’s behavior here—submitting

to an ongoing DUII investigation—does not unequivocally

reflect an intent to abandon his property. Nor does defen-

dant’s failure to verbally claim the backpack reflect such an

intent, because “although a defendant’s statement disclaim-

ing any interest in an object may suffice to communicate

such an intention, a defendant’s silence does not.” State v.

Jones, 280 Or App 135, 139, 380 P3d 1132 (2016).

504 State v. Lewis

In sum, we conclude that defendant did not unequiv-

ocally manifest an intention to relinquish his constitution-

ally protected interests in his backpack when he left it in the

truck. Because the state did not meet its burden of proving

that the search of that backpack was lawful, the warrant-

less search violated defendant’s Article I, section 9, rights,

and evidence discovered as a result of that search must be

suppressed.5

Reversed and remanded.

5

In appeals arising from conditional pleas, we have “consistently declined to

engage in a harmless error analysis.” State v. Leach, 294 Or App 639, 646, 432

P3d 310 (2018).