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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)