OR: State couldn’t rely on alternative basis to sustain search where no notice to defense to litigate [Practice Note]

The state did not raise abandonment or disclaimer by defendant of his backpack in the trial court. The record is not sufficiently developed for a decision on those grounds as alternate theories because the defense wasn’t on notice to litigate and put on facts. Therefore, those arguments are rejected because the court posits many things not resolved. State v. Stinstrom, 2014 Ore. App. LEXIS 199 (February 20, 2014):

The record in this case suggests that defendant did not abandon the backpack before McGuire seized it. Shortly before he was arrested, defendant said that the backpack was his and tried to pick it up. He moved away from it only when he was arrested. If the state had argued in the trial court that defendant had abandoned the backpack, the evidentiary record might have developed differently. The parties would have focused on whether defendant had left the backpack on the ground for anyone to take, with no intent to exercise any control over it or make any claim to it in the future. If that had been the focus, defendant might have presented evidence regarding where the backpack was relative to the location of his companions, whether he had told his companions that they should take the backpack, and whether he had any reason to believe that they would do so on their own. Because the evidentiary record might have developed differently if the state had argued in the trial court that defendant had abandoned the backpack, and because that record could affect the disposition of the issue, we cannot consider the state’s abandonment claim on appeal. Outdoor Media Dimensions Inc., 331 Ore. at 660; see Cook, 332 Ore. at 607 (“[T]he determination whether a defendant has relinquished a constitutionally protected interest in an article of property involves both factual and legal questions[.]”).

The state’s second theory is that, through his disclaimers, defendant relinquished his interests in the backpack, at least temporarily. Whether a person has relinquished his or her protected interests in property involves both factual and legal questions, Cook, 332 Ore. at 607, and the resolution of the factual questions requires consideration of the content and context of the person’s words and actions. If the state had asserted its disclaimer theory in the trial court, the record might have developed differently because the theory depends on the scope of the disclaimers. It is not apparent that defendant was disclaiming anything other than ownership, and a disclaimer of ownership is not a disclaimer of all protected interests. See id. at 607-08 (because Article I, section 9, protects both possessory and privacy interests, “concepts of ownership and possession are relevant, though not always conclusive, in the factual and legal determination whether a defendant relinquished all constitutionally protected interests in an article of property”).

Here, if the state had argued in the trial court that defendant had relinquished, at least temporarily, all of his protected interests in the backpack, the parties would have focused on the content and context of defendant’s disclaimers. And, defendant might have presented evidence regarding exactly what he said to McGuire and whether he intended to convey, or could reasonably be understood to have intended to convey, that seizure of the backpack would not violate any protected interest he had in it. He might have presented evidence regarding whether, as he argues on appeal, the disclaimers were intended to keep McGuire from taking the backpack into custody, and he might have also presented evidence that McGuire understood that he was not relinquishing all of his protected interests in the backpack. See State v. Kendall, 173 Ore. App. 487, 492, 24 P.3d 914 (2001) (the officer’s seizure of the defendant’s bicycle for safekeeping reflected the officer’s understanding that the defendant had not relinquished his interests in the bicycle by stashing it in a fenced lot while being pursued by the officer).

Practice Note: This is a good example of how to respond on appeal when the prosecution raises alternative arguments not presented below. “If we’d known this, we’d have gone into X, Y, and Z which would have cleared this all up.”

I’ve been sandbagged by the Arkansas Court of Appeals on standing where the state waived it below then they found no standing, despite being told Steagald holds that a complete waiver. Arkansas is a “procedural default in extremis” [my choice of words] state: fail to raise an issue below, no matter that you know the trial judge will ignore you, is complete default. Except when the state does it. They almost always seem to get a pass.