dissenting.
The majority asserts that, for the purposes of Article I, section 9, defendant had abandoned his interest in the bag before it was searched, 163 Or App at 34, and relies on State v. Morton, 326 Or 466, 953 P2d 374 (1998), for the proposition that abandonment of a possessory interest in a protected container before a search or seizure occurs can defeat the right to have evidence suppressed. 163 Or App at 32. While I agree with the majority as to that general proposition, I disagree that that is what happened here.
The officers stopped defendant as he was sorting clothing into a duffel bag. Officer Reynolds testified that defendant told him that he “had just found all the stuff inside and was going through it to see what he wanted to take home.” There are two possible explanations of defendant’s statement: Either the bag and its contents really did not belong to him and had been abandoned by someone else, or they did belong to him and he was disclaiming an interest. It does not matter, however, which interpretation we choose— in any event, defendant was clearly in possession of the bag *35and its contents at the time and, therefore, had a possessory interest in them that the officers violated when they searched the bag and seized the evidence that defendant now seeks to suppress. That is not unlike the facts in Morton, where the defendant disclaimed an interest in a plastic container that fell from her jacket while she was being placed under arrest. The court there stated that
“the uncontradicted evidence * * * showed that this defendant had, in fact, been in personal possession of the container in question only moments before it came into the possession of the police. Although defendant denied vehemently any ownership interest in or knowledge of the contents of the container, there was no debating the fact that she possessed it.”
326 Or at 469-70. The court in Morton went on to state that, because the defendant’s dropping of the container could not be separated from the act of arrest, the defendant had not abandoned the container before the arrest. Because of the circumstances of the arrest, the court did not have to determine whether the defendant had abandoned the container at all.
In State v. Belcher, 89 Or App 401, 749 P2d 591, aff'd 306 Or 343, 759 P2d 1096 (1988), we stated that, although abandonment is a principle imported from property law, “[f]or constitutional purposes ‘abandonment’ addresses a different concern and has a different focus.” Id. at 404. The concern, we held, was whether the owner had left his or her property under circumstances that objectively made it likely that others would inspect it. Id. In that case, the defendant had been involved in a fight in a parking lot and, when police arrived, had fled, leaving behind a wallet and a backpack. An officer opened the wallet and found the defendant’s identification. The officer then asked bystanders whether they knew the backpack’s owner, but none did. The officer then opened the backpack and searched its contents and found jewelry that he believed to have been stolen. When police went to the defendant’s house the next day, he admitted that the backpack was his but denied ownership of the jewelry. We held that, because the backpack had been left in a public parking lot after the participants in a fight had fled, it was reasonable to assume that a police officer investigating the fight would *36inspect the pack in order to determine its owner. Like the dissent in Belcher, I fail to see how an individual who has not abandoned his or her ownership or possessory interest in property nevertheless could abandon the constitutional right under Article I, section 9, not to have that property searched or seized unreasonably. I believe that, to the extent it rejected the application of the principles of abandonment found in property law, Belcher was wrongly decided and is inconsistent with more recent decisions by this court and by the Supreme Court.1
Abandonment of ownership requires the voluntary relinquishment of the property in question with the intention of terminating ownership of it without vesting that ownership in another person. Dober v. Ukase Investment Co., 139 Or 626, 629, 10 P2d 356 (1932). In this case, there is no question that defendant was in possession of the bag and its contents at the time that he was stopped by the police. Whether or not the items originally had been abandoned by someone else is not relevant; the relevant fact is that defendant had possession of them at the moment in question. Thus, the question is whether defendant voluntarily relinquished possession of the bag and its contents with the intention of terminating his ownership of those items. I conclude that the record does not support such a finding. Defendant told the officers that, although the items in question were not his, he had been going through them to see what he might take home. That was a statement of intent to retain possession of at least some of the items. The fact that defendant left the bag a few feet away on the ground when he walked out of the alley to talk to the officers does not, without more, indicate an intention to abandon the bag. Without further evidence of defendant’s intention to abandon the items, the majority errs in determining that he did.
Even if we were to assume, for the purposes of this opinion, that Belcher was correctly decided and that there is a difference between abandonment for property law purposes and abandonment for constitutional purposes, the facts in Belcher are distinguishable. Here, defendant had not left the property with no indication of return or in a way that could lead a reasonable person to conclude that he was not going to return for the property.