S057594, Opinion — State v. Brown

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Argued and submitted February 19, at De Le Salle North Catholic High School,
Portland, Oregon, decision of Court of Appeals reversed; order of circuit court
reversed, and matter remanded to circuit court for further proceedings
May 27, 2010

STATE OF OREGON,
Petitioner on Review,
v.
SHEENA BROWN,
Respondent on Review.
(C060902CR; CA A133625; SC S057594)
232 P3d 962

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CJS, Searches and Seizures § 37.

# En Banc

On review from the Court of Appeals .*

Robert M. Atkinson, Senior Assistant Attorney General,
Salem, argued the cause for petitioner on review. With him
on the briefs were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.

David Ferry, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause for respondent on
review. With him on the brief was Peter Gartlan, Chief
Defender.

DE MUNIZ, C. J.

The decision of the Court of Appeals is reversed. The order
of the circuit court is reversed, and the matter is remanded to
the circuit court for further proceedings.

\* Appeal from Washington County Circuit Court, Marco Hernandez, Judge.
228 Or App 197, 206 P3d 1180 (2009).

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# DE MUNIZ, C. J.

Defendant was charged with 22 counts of identity
theft. The evidence against her derived entirely from the
warrantless search of two bags that defendant had denied
owning and had left in a hotel room rented by another person.
Defendant moved to suppress the evidence against her on the
ground that it had been obtained through a search that vio-
lated Article I, section 9, of the Oregon Constitution and the
Fourth Amendment to the United States Constitution. The
trial court concluded that the search of the bag violated
Article I, section 9, and suppressed the evidence. The Court of
Appeals affirmed. State v. Brown, 228 Or App 197, 206 P3d
1180 (2009). We allowed the state's petition for review and
now reverse.

The facts relevant to our review are undisputed. A
man and a woman had checked into a hotel. The hotel room
was rented under the man's name, Taunice Beal; however,
the woman paid for the room with a credit card in the name of
Katrina Ivanov. The clerk suspected some form of identity
theft or credit card fraud and summoned the police to the
hotel.

Police went to the room, which was occupied by four
people, one of whom was defendant. On the floor in plain
view was a methamphetamine pipe with residue. Officer
Pfaff asked whether anyone in the room was either Beal or
Ivanov; the four people in the room denied being Beal or
Ivanov. Pfaff also asked if anyone present had rented the
room; they all stated that they had not. When asked for iden-
tification, defendant claimed that she did not have any iden-
tification with her and gave the officer a false name,
Stephanie Hageman.

The hotel manager arrived and, on learning that no
authorized guests were in the room, instructed everyone to
leave. No one protested or objected to being required to leave.
Pfaff asked the people in the room if they had any personal
property there. One person claimed a cell phone and shoes;
another claimed a purse and sandals. Defendant claimed
only a pair of sandals. While Pfaff was retrieving defendant's
sandals, she noticed a black bag and asked defendant if the
bag was hers. Defendant denied that it was. The officer asked

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again, noting that defendant's sandals were next to the bag;
however, defendant again denied owning the bag. The officer
also pointed out a second black bag in the room, and asked if
it belonged to defendant. Defendant twice denied owning
that bag. There was also a third bag in the room-a duffel
bag-which no one claimed. Pfaff asked everyone in the room
if they had retrieved all of their personal possessions from the
room, because the room would be locked. No one claimed any-
thing else in the room. After everyone had left the room, the
hotel manager locked the room door, rekeying the lock so that
the occupants of the room would have to come to the hotel
desk before they could enter the room. The officers then left.

Later that afternoon, Beal returned to the hotel with
a companion, and the hotel contacted the police. Pfaff
responded to the call and met with Beal. Beal stated that he
had rented the room, and that a woman he knew as Sheena
had paid for it with a credit card. The officer asked Beal if
anything in the room belonged to him, and Beal identified the
duffel bag. Pfaff asked Beal for permission to search the
room, and Beal responded, " '[y]ou can search whatever you
want.'" The officer first searched the duffel bag, then began
searching the first black bag. The officer found a wallet that
contained a photo of defendant, a credit card in the name of
Katrina Ivanov, and some notebook paper containing hand-
written identity information for other people (e.g., names,
dates of birth, driver's license numbers, Social Security
numbers, etc.). At approximately the same time that Pfaff
discovered the identity information, Beal told her that
both black bags were owned by Sheena, and Beal's com-
panion added that Sheena's last name was Brown. Conclud-
ing that the bag contained evidence of identity theft, the offi-
cer closed the bag, seized the other black bag, and left the
hotel room. Later, at the police station, the officer further
searched both bags, discovering additional evidence of iden-
tity theft.1

Before trial, defendant moved to suppress the
evidence discovered during the search of the bags, arguing

It is not clear from the record whether any evidence was found in the second
bag.

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that the warrantless search of the bags violated defen-
dant's privacy right under Article I, section 9, of the Oregon
Constitution and the Fourth Amendment to the United
States Constitution. In response, the state asserted that
defendant had abandoned any possessory or privacy interest
in the bags when she denied owning them and left them in
the room. The trial court granted defendant's motion to sup-
press. In a letter explaining its ruling, the trial court stated:
"I am not convinced[,] based on the totality of circumstances
in this case[,] that the defendant demonstrated an intent to
permanently relinquish possession of the items at issue or
the privacy interests that accompanied the right to possess
them."

The state appealed the suppression order to the
Court of Appeals, which affirmed. That court concluded that
the issue was "whether, when defendant stated that the bags
did not belong to her and left the hotel room without them,
she manifested the intent permanently to relinquish her pos-
sessory or privacy interests." Brown, 228 Or App at 203-04.
The court held that, "although defendant denied owning the
bags, her conduct in leaving her bags apparently secure in
the hotel room did not amount to giving up her privacy inter-
est in that property." Id. at 204. The court reasoned that
defendant was leaving the bags in a secure hotel room rented
by someone she knew, which "was consistent with an intent
to maintain a privacy interest in the bags." Id. The court also
noted that nothing would have suggested to defendant that
her denial of an interest in the bags would cause them to be
searched. Id. We allowed the state's petition for review to
consider whether the trial court and the Court of Appeals cor-
rectly concluded that the search of the bags violated Article I,
section 9.

We begin by reviewing the nature of the right guar-
anteed by Article I, section 9, which provides, in part:

"No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unrea-
sonable search, or seizure

The government conducts a "search" for purposes of Article I,
section 9, when it invades a protected privacy interest. See

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State v. Crandall, 340 Or 645, 649, 136 P3d 30 (2006) (so stat-
ing); State v. Meredith, 337 Or 299, 303-04, 96 P3d 342 (2004)
(same); State v. Wacker, 317 Or 419, 426, 856 P2d 1029 (1993)
(same). A protected privacy interest "is not the privacy that
one reasonably expects but the privacy to which one has a
right." State v. Campbell, 306 Or 157, 164, 759 P2d 1040
(1988) (emphasis in original; citation omitted). Accordingly, a
defendant's subjective expectation of privacy does not neces-
sarily determine whether a privacy interest has been vio-
lated. See State v. Howard / Dawson, 342 Or 635, 643, 157
P3d 1189 (2007) (rejecting defendants' argument that they
did not expect their garbage to be searched by police after
sanitation company had picked it up).

It is true that Article I, section 9, protects "the gen-
eral privacy interests of 'the people' rather than * * * the pri-
vacy interests of particular individuals." State v. Tanner, 304
Or 312, 320, 745 P2d 757 (1987) (footnote omitted).2 How-
ever, it is not enough that police may have violated Article I,
section 9, in some abstract sense. As Tanner explains, courts
will suppress evidence only when a defendant's rights under
Article I, section 9, have been violated. "[T]he search * * *
must violate the defendant's section 9 rights before evidence
obtained thereby will be suppressed; a defendant's section 9
rights are not violated merely by admitting evidence
obtained in violation of section 9." Id. at 315-16.

Here, when the officers first arrived at the hotel
room, it is clear that defendant had a constitutionally pro-
tected privacy interest in both bags. She owned the bags, she
was in possession of the bags, and both she and the bags were
in a private room that she had paid for (admittedly under a

2 Tanner explained the principle further:

"It is not correct * * * to say that a warrantless search of A's house violated
section 9 because it violated A's privacy interests in the house. It would be more
accurate to say that the search of A's house violated section 9 because it vio-
lated the privacy of the house. Given that the police have violated the privacy of
the house, the question then arises whether that violation has infringed upon
anyone's privacy interests. If the house proves to be abandoned, the police may
have violated section 9 without violating anyone's section 9 rights."

304 Or at 321 (emphases in original).

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false identity). The question is whether defendant's subse-
quent actions caused her to lose those constitutionally pro-
tected privacy interests.

This court's decision in State v. Cook, 332 Or 601, 34
P3d 156 (2001), is instructive. In Cook, police officers, arriv-
ing at a parking lot to investigate possible thefts from vehi-
cles, spotted the defendant standing next to a garbage
dumpster sorting clothing into a duffel bag. One officer asked
the defendant to step away from the duffel bag, and defen-
dant complied. The officer asked the defendant whether the
clothing or the bag belonged to him. The defendant said that
they did not, but that he had found them and was sorting
through them for things to use. The officers subsequently
searched the duffel bag and discovered drugs, as well as evi-
dence that the bag did belong to the defendant.

On review, the state agreed that the defendant had a
possessory and privacy interest in the duffel bag and its con-
tents, but it argued that the defendant had relinquished that
interest by denying ownership and walking away from the
articles. Id. at 605-06. After reviewing this court's prior case
law, the court identified three legal principles applicable to
the analysis:

"First, the 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 * * *.

"Second, because Article I, section 9, protects both pos-
sessory and privacy interests in effects, property law con-
cepts of ownership and possession are relevant, though not
always conclusive, in the factual and legal determination
whether a defendant relinquished all constitutionally pro-
tected interests in an article of property.

"Finally, for constitutional purposes, the question to be
resolved in the present case is whether the defendant's
statements and conduct demonstrated that he relinquished
all constitutionally protected interests in the articles of
property * * *. "

332 Or at 607-08 (citation omitted). Applying those princi-
ples, the court concluded that the evidence should have been

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suppressed. Id. at 609. Although the defendant had denied
owning the duffel bag, defendant had expressly claimed a
possessory interest in it. The defendant's act of stepping
away from the bag did not relinquish that possessory inter-
est, because the defendant merely complied with the officer's
direction to do so. Id. at 608-09.

"Leaving the items on the ground in compliance with the
officer's request to 'step out' is not conduct demonstrating
an intent permanently to relinquish possession of the items
or the privacy interests that accompanied the right to pos-
sess them. Under those circumstances, the officers could
not have reasonably concluded that defendant intended to
relinquish his possessory and privacy interests in the cloth-
ing and the bag."

Id. at 609.

As was true in Cook, the question before us is
"whether the defendant's statements and conduct demon-
strated that [she] relinquished all constitutionally protected
interests in the articles of property[.]" Id. at 608. Both the
trial court and the Court of Appeals concluded that defendant
must be shown to have intended to relinquish permanently
all constitutionally protected interests. See Brown, 228 Or
App at 203-04 (considering whether defendant "manifested
the intent permanently to relinquish her possessory or pri-
vacy interests").

In our view, the Court of Appeals' emphasis on "per-
manent relinquishment" is problematic. There are any num-
ber of circumstances in which a person relinquishes privacy
interests without doing so permanently. An individual who
consents to a search of an item, for example, relinquishes all
constitutionally protected privacy interests in the item.
Under most circumstances, however, it would be difficult to
suggest that the individual has permanently relinquished
those privacy interests, subjecting the item to search at will
for the indefinite future. Additionally, a person who places an
item in plain view has relinquished any constitutionally pro-
tected privacy interest in the item. That person, however,
may renew the privacy interest simply by removing the item

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from plain view. Similarly, a person who loses an item relin-
quishes some of the person's constitutionally protected inter-
est in the property, but only to the extent necessary to search
it for identification, and only so long as the item remains lost.
See State v. Pidcock, 306 Or 335, 340-42, 759 P2d 1092
(1988), cert den, 489 US 1011 (1989) (lost briefcase; the court
concluded that police officers lawfully could search for iden-
tification by opening the briefcase and, later, the manila
envelopes contained inside it; but "[h]ad the deputies opened
the manila envelopes in search of contraband, they would
have violated defendant's state * * * constitutional rights").
Once the lost item is returned to its owner, all constitution-
ally protected interests ordinarily are renewed. Even when a
privacy interest in an effect has been lost by execution of a
search warrant authorizing its search and seizure, the owner
or possessor can renew the privacy interest in the effect by
regaining its possession. See State v. Munro, 339 Or 545, 552,
124 P3d 1221 (2005) (seizure of a videotape under authority
of a warrant destroyed the defendant's privacy interests
"[u]ntil such time as defendant regained lawful possession of
the videotape").

Moreover, we do not read Cook to require permanent
relinquishment. As we have quoted previously, the legal test
stated by the court in Cook was "whether the defendant's
statements and conduct demonstrated that he relinquished
all constitutionally protected interests in the articles of prop-
erty." 332 Or at 608. The word "permanently" occurs only
once in the Cook opinion, when the court applied the law to
the facts. In context, the court used the word "permanently"
only to emphasize the transient nature of the defendant's
relinquishment of possession of the property. See id. at 608-
09 (noting that defendant had "relinquished his immediate
physical possession" of the bag and clothing, but only at the
direction of the officer, and concluding that that was "not
conduct demonstrating an intent permanently to relinquish"
either possession or the accompanying privacy interest
(emphases added)).3 In all events, if Cook implied such a

3 The relevant part of Cook states:

"Although [the] defendant had relinquished his immediate physical possession
of the bag and clothing by leaving them on the ground, undisputedly he did so
only after [the officer] instructed him to 'step out' of the area near the dumpster

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requirement, doing so was unnecessary to our holding in that
case, and we disavow that requirement now.

Accordingly, we reject the conclusions of the Court of
Appeals and the trial court that the defendant's conduct must
demonstrate an intent to permanently relinquish all consti-
tutionally protected interests.

With the foregoing cases and discussion in mind, we
now consider "whether the defendant's statements and con-
duct demonstrated that [she] relinquished all constitution-
ally protected interests in the articles of property." Cook, 332
Or at 608. Defendant had a possessory and privacy interest
both in the room and in the bags when she encountered the
police. She relinquished her privacy interest in the room by
denying that she was Katrina Ivanov and giving another
(false) identity. As a result, the hotel manager insisted that
defendant (and the others) leave the room. Defendant then
was given an opportunity to remove her personal posses-
sions. She repeatedly and expressly denied that the bags
were hers. Defendant made no attempt to claim them or to
take them with her. Her statements and actions were identi-
cal to those of a person who had no possessory or privacy
interest in the bags at all. Thus, defendant relinquished, at
least temporarily, her possessory and privacy interests in the
two bags.

In concluding that suppression of the evidence was
required, the Court of Appeals also emphasized that defen-
dant was aware that the bags were going to be left in a locked
hotel room rented by a person whom she knew. Brown, 228
Or App at 204. To determine whether, and to what extent,
that fact is relevant to our analysis, we first review this
court's prior case law regarding searches of property that has
been placed in the custody of another.

where [the] defendant was sorting the clothes into the bag. Leaving the items
on the ground in compliance with the officer's request to 'step out' is not con-
duct demonstrating an intent permanently to relinquish possession of the items
or the privacy interests that accompanied the right to possess them. Under
those circumstances, the officers could not have reasonably concluded that
[the] defendant intended to relinquish his possessory and privacy interests in
the clothing and the bag."

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In Tanner, 304 Or at 312, the defendant had stolen
property from his employer and pledged the property to a
couple as collateral for a loan. Police discovered the property
at the couple's home during an illegal search of their resi-
dence. There was no question that the illegal search of the
couple's home had violated the couple's privacy rights; as
noted previously, however, this court concluded that it
needed to determine whether the search had violated the
defendant's privacy rights. Id. at 315-16. The court first
explained that nonresidents may have a privacy interest in
the home of another. The court elaborated on that with a
series of hypotheticals:

"If A invites B to dinner at A's house and the police burst in
on the dinner, it would be ludicrous to contend that the
police have infringed upon a privacy interest of A but not
upon a privacy interest of B.

"It is true that B, as a dinner guest, has no right to
exclude the police (or anyone else) if A invites them in, but
in that case the police have not violated section 9 at all. A
section 9 privacy interest is an interest against the state; it
is not an interest against private parties. That A controls
access to the house does not preclude B from asserting a pri-
vacy interest against the state if it violates the privacy of
the house.

"Should the result be any different if, instead of inviting
B to dinner, A allows B to store effects on A's premises? In
both cases A has allowed B to make use of the privacy of A's
house. * * * Again, B's section 9 interests will not be vio-
lated if A allows the police to enter the house and discover
the effects, but that is because A controls access to the
house, not because B does not have a privacy interest
against the state."

Id. at 321-22 (footnote and citations omitted). The court con-
cluded that "the entrustment of an effect to another is suffi-
cient to establish a privacy interest that is violated when the
effect is discovered through an unlawful search." Id. at 323.

The Tanner court then considered whether, on the
facts, the defendant had a privacy interest that had been vio-
lated by the state. The court concluded that he did. In doing
so, however, the court recognized that the defendant's pri-
vacy interest depended not only on the privacy of the house,

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but also on the interest that the defendant had retained in
the entrusted property:

"Had the circuit court found that defendant had sold or
given away the effects, that might have been a sufficient
basis for concluding that defendant no longer had a privacy
interest that could be violated by the discovery of the effects,
but a person who pledges effects as collateral is in much the
same position as one who entrusts effects to another for
other purposes. The state contends that defendant had no
immediate right of access to the tapes and equipment, but
that fact alone does not preclude defendant's continuing
entrustment of the effects. So long as there remained a pos-
sibility that defendant would reclaim the effects, the
entrustment was sufficiently viable to demonstrate that the
illegal search of the [couple's] residence violated his privacy
interests under section 9."

Id. (citation omitted; emphasis added).

More recently, this court addressed a similar situa-
tion in Howard / Dawson, 342 Or 635. There, the defendants
had thrown away garbage that the sanitation company had
voluntarily delivered to the police. The court first noted that
the defendants did not claim that they had retained any own-
ership or possessory interest in the garbage after the sanita-
tion company picked it up. "If any entity had a constitution-
ally protected possessory interest [in the garbage], it was the
sanitation company[,] but that company voluntarily turned
the property over to the police." Id. at 640.

The only question was whether the defendants
retained a protected privacy interest in the garbage. Id. This
court concluded that they did not. "[W]hen a person gives up
all rights to control the disposition of property, that person
also gives up his or her privacy interest in the property in the
same way that he or she would if the property had been
abandoned." Id. at 642-43 (citation omitted). The question
whether the defendants retained a constitutionally protected
privacy interest in the garbage was controlled by "the legal
relationship between [the] defendants and the sanitation
company." Id. at 642; see id. at 641 (noting that the defen-
dants "have not claimed that their contract with the sanita-
tion company limited what the company could do with the
garbage once the company took possession of it"). Because the

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defendants "turned the garbage over to the sanitation com-
pany without any restriction on its disposition, they effec-
tively abandoned that property." Id. at 642.

In light of those cases, we now return to the issue of
what weight should be given in this case to defendant having
left the bags in a locked room rented by someone she knew.
We conclude that that fact does not affect our holding that
defendant had relinquished her constitutionally protected
interests in the bags. As we have already noted, defendant
disclaimed ownership of the bags and voluntarily gave up
possession of them. In doing so, she abandoned her bags in a
locked room to which she would not have access. Defendant
thus relinquished her possessory rights in the bags to Beal.
See Howard / Dawson, 342 Or at 640 (noting that it was
uncontested that the defendants had relinquished their pos-
sessory interests in garbage to the sanitation company, once
the sanitation company had picked up the garbage). Because
defendant had relinquished her possessory rights, she also
had relinquished her privacy interests in the bags. See id. at
642-43 ("when a person gives up all rights to control the dis-
position of property, that person also gives up his or her pri-
vacy interest in the property in the same way that he or she
would if the property had been abandoned"). Beal, by virtue
of his control of the room, held the only remaining possessory
and privacy interest in the two bags. Beal's consent to a
search relinquished the remaining privacy interest in the
room and its contents. See Tanner, 304 Or at 322 ("B's section
9 interests will not be violated if A allows the police to enter
the house and discover the effects, * * * because A controls
access to the house * * *. "). Accordingly, when Pfaff searched
the two bags, she did not violate any constitutionally pro-
tected privacy interest held by defendant. The Court of
Appeals and the trial court erred in holding otherwise.

Defendant alternatively contends that the search
violated the Fourth Amendment to the United States
Constitution. It was unnecessary for the Court of Appeals to
reach that question, given its resolution of the case under
Article I, section 9. In accordance with principles of judicial
economy, we will consider defendant's Fourth Amendment
argument.

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The Fourth Amendment protects against govern-
mental violations of a defendant's reasonable expectation of
privacy. See Campbell, 306 Or at 163 ("Since Katz [v. United
States, 389 US 347, 88 S Ct 507, 19 L Ed 2d 576 (1967)], the
[United States Supreme] Court has defined a Fourth
Amendment search as a government action that infringes
upon a 'reasonable expectation of privacy.'" (footnote omit-
ted)). In this case, we conclude that defendant's Fourth
Amendment rights have not been violated, for essentially the
same reasons that we have already articulated in connection
with our analysis of Article I, section 9. Defendant disclaimed
ownership of the bags and voluntarily left them behind.
Under the totality of the circumstances, she no longer
retained a reasonable expectation of privacy in the bags at
the time of the search.

The decision of the Court of Appeals is reversed. The
order of the circuit court is reversed, and the matter is
remanded to the circuit court for further proceedings.