OR: Disclaiming ownership of purse brought to police station police wanted to search wasn’t abandonment

Where defendant was told to bring her purse and later disclaimed ownership when the officer wanted to search it, she did not abandon it to the degree she lost ownership or a reasonable expectation of privacy in it. It wasn’t lost or forgotten, and a disclaimer of ownership doesn’t necessarily show abandonment. State v. Bunch, 305 Ore. App. 61, 2020 Ore. App. LEXIS 814 (July 1, 2020):

Abandonment requires an unequivocal manifestation of an intention to relinquish all constitutionally protected interests in the affected property. Brown, 348 Ore. at 302. A disclaimer of ownership of an item may, but does not necessarily, demonstrate an abandonment of all constitutionally protected interests in the item. Cook, 332 Ore. at 607-08. (“[B]ecause Article I, section 9, protects both possessory and privacy interests in effects, property law 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.”). The surrounding circumstances will determine the effect of the disclaimer. Unless a possessory or privacy interest may be inferred from the circumstances, a disclaimer of ownership “may trigger an obligation by the defendant to assert a protected interest other than ownership in the property.” Standish, 197 Ore. App. 96, 101-02, 104 P3d 624 (2005). Citing Standish, the state contends that, after defendant disclaimed ownership of the purse, in order to protect any possessory or privacy interest in the purse, defendant should have asserted that interest before Volin seized it. But the circumstances existing at the time that Volin seized the purse required the inference that, despite having disclaimed ownership, defendant did not intend unequivocally to relinquish a possessory or privacy interest in the purse. See id. at 102. Volin saw that defendant had the purse next to her while playing a slot machine, and that it was open and contained some of her belongings. Defendant claimed ownership of some items in the purse and requested that Volin give them to her. Defendant’s explanation, that the purse was owned by a friend who had left to run an errand, may have been a disclaimer of ownership, but did not express an unequivocal intention to relinquish a possessory or privacy interest in the purse. Finally, defendant did not physically “abandon” the purse by leaving it behind unattended. She merely acquiesced in Volin’s decision to bring the purse with him to the police station. As the state acknowledged at oral argument, a denial of ownership is a common subterfuge of those possessing contraband. The circumstances all point to the inference that, despite her disclaimer of ownership, defendant maintained possessory and privacy interests in the purse.

Contrary to the state’s argument, defendant’s failure to object when Volin announced that he would take the purse for safekeeping also did not establish a voluntary relinquishment of a possessory or privacy interest. See State v. Jepson, 254 Ore. App. 290, 294, 292 P3d 660 (2012) (“mere acquiescence” to police authority does not constitute consent); see also Tucker, 330 Ore. at 88-89 (a defendant is not required to assert a property or privacy interest in property that the police searched; rather, the burden is on the state to prove that the warrantless search did not violate a protected interest of the defendant). For all those reasons, we conclude that defendant did not abandon the purse or give up her right to challenge the unlawful warrantless search. We conclude, therefore, that trial court erred in denying defendant’s motion to suppress.

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