State v. Pidcock

*445VAN HOOMISSEN, J.

Defendant appeals his convictions on two counts of unlawful possession of a controlled substance. ORS 475.992(4)(b). He contends that the trial court erred in denying his motion to suppress evidence. The dispositive issue is whether the trial court’s conclusion that defendant had abandoned the evidence and, therefore, had no protectible interest in it is correct. We affirm.

On February 14, 1985, a Mrs. Joll and her daughter Mary were driving toward their residence, just off Crow Road, in Lane County. As they approached the mailbox adjacent to their driveway, they observed what appeared to be a pillow or pillowcase lying near the mailbox. They stopped, and Mary examined the pillowcase and found a black leather briefcase. They took the briefcase to their house and spent several minutes trying to get it open. There was no identification on the exterior. They then called the sheriff and reported finding the briefcase. They were told that ordinarily the sheriff would not respond to someone finding lost property. Joll indicated that this particular briefcase appeared to be somewhat unusual and that it was quite nice and new leather, with combination tumbler locks. It was locked at the time, and there was something heavy inside that was sliding around.

On February 15, 1985, at about 8:30 a.m., Deputy Larson went to the Joll residence and examined the briefcase briefly. He turned the tumblers to zero, which opened the case. Not knowing what was in it, and because there was some type of heavy object sliding around in it, he cracked it open an inch or two so that he could peer inside without fully opening the lid. He observed a large stack of money with a $100 bill on top. He also observed what appeared to be an automatic or semiautomatic handgun, a baggie that appeared to contain marijuana, manila envelopes and some other small items which he could not identify. There appeared to be a wire extending from inside the briefcase to its top.

Because of the wire, Larson called the Eugene Police Department bomb squad to have it examine the briefcase. He thought that it might be booby-trapped. The bomb squad took the briefcase outside the Joll residence and x-rayed it. Readily apparent were a handgun, what appeared to be an extra automatic clip with ammunition, eyeglasses and other indistinct *446items. They were not able to determine from the x-rays whether there was an explosive device inside. The briefcase was then opened on one side, and its contents were carefully removed. There were two manila envelopes, one sealed. The glasses were wire-rimmed with a fairly thin black plastic coated substance on the wire, which was the wire Larson had observed. The briefcase was not booby-trapped.

Late that morning, the briefcase and its contents were taken to the sheriffs office. The manila envelopes were opened and examined. No identification of the owner was found. State Crime Lab technician Bekkedahl tested the substances found in the envelopes and determined that they were cocaine and methamphetamine.

After the property was returned to the sheriffs office from the crime lab, the money was determined to be about $9,000. Defendant’s fingerprints were found on the envelopes. The weapon was a .45-caliber automatic, fully loaded, which appeared to be in working order.

The sheriff was concerned about the welfare of citizens in the area where the briefcase was found, fearing that someone who had lost it might harass or threaten residents to get it back. Because of that concern, in mid-afternoon of February 15, the news media were invited to come to the sheriffs office for a press conference. On the morning of that day, a telephone call had come to the Eugene Register-Guard from a person requesting that a classified ad be placed concerning a briefcase lost in the Crow Road area. That afternoon, a second phone call was received from an adult female who indicated that she wanted the classified ad withdrawn. She asked that the bill be sent to “Tom Pidcock” and she gave defendant’s address and phone number.

Further investigation revealed that a number of witnesses would testify that, between 6:00 and 6:30 p.m. on St. Valentine’s Day, people had been observed in the Crow Road area driving a vehicle slowly up and down the road apparently looking for something. The vehicle was registered to defendant.

After being advised of the “finders-keepers law,” ORS 98.005 et seq, Joll placed an advertisement in the Register-Guard advertising the finding of the briefcase and how it *447could be obtained. She specifically rented a separate post office box for the sole purpose of responses to her advertisement. Other than junk mail, she received no responses. The Register-Guard published news stories at least twice between February 16 and February 20 about the briefcase.

The sheriff did not obtain a warrant for the search of the briefcase or of its contents. Defendant testified that he did not intend to abandon the briefcase and that he had called the sheriffs department before the newspapers were called and before the sheriffs office indicated that they had the briefcase in their possession. He said that he did not assert his claim to the briefcase, because he did not want to incriminate himself.

Defendant moved to suppress the briefcase and its contents, relying on Article I, section 9, and the Fourth Amendment.1 At trial, the parties stipulated that defendant had called the sheriff before the press conference, had then learned that the sheriff had the briefcase and thereafter made no attempt to claim or recover it. The trial court denied the motion. Although it is not entirely clear, the court’s rationale appears to have been that defendant had specifically abandoned the property.

Defendant contends that the police did not have probable cause to open and search the briefcase. He argues that, before the initial opening by Larsen, there was no evidence that a crime had been committed; that, once the police had opened the briefcase, they needed a warrant to open and search the envelopes; and, that, lacking a warrant, the opening and searching were unlawful. He argues that he did not abandon the briefcase and had attempted to recover it until he learned that it was in the possession of the police. The state argues that defendant had no legitimate expectation of privacy in the briefcase, because he had specifically abandoned it.

Evidence will not be suppressed if the person challenging a search and seizure has abandoned the property. *448“Society is not prepared to recognize as reasonable — and the constitution does not compel it to recognize as reasonable — any subjective expectation of (or hope for) privacy in abandoned property.” State v. Green, 44 Or App 253, 260, 605 P2d 746 (1980); see State v. Hogg, 7 Or App 99, 104, 490 P2d 198 (1971). Abandonment is the voluntary relinquishment of the possession of an object by the owner with the intention of terminating his or her ownership. The intent to abandon must be clear and must be accompanied by some specific act of abandonment. See Rich v. Runyon, 52 Or App 107, 112-13, 627 P2d 1265 (1981).

Defendant did not abandon the briefcase when it fell out of his truck; he was unaware that it had fallen out. He subsequently attempted to find it by searching for it and by ordering a classified ad. However, when he learned that the sheriff had the briefcase, he made no further effort to claim or recover it and discontinued activities already begun. Nothing the police did caused him to forego his interest in the property. He did not know that they had opened the envelopes and had tested their contents. Cancellation of the ad and his failure to undertake any efforts to recover the briefcase were specific acts of abandonment. From the stipulated facts, it is clear that defendant had no intention thereafter of ever asserting any ownership of or interest in the briefcase or its contents.

Defendant argues that any so-called abandonment was done in an effort to avoid self-incrimination and that he cannot be held to have given up his constitutional right against unreasonable searches. We disagree. One who acts to abandon property cannot claim a constitutional violation, even if the act was done to avoid police action. State v. Green, supra. Defendant’s argument also is contrary to federal authority. See Abel v. United States, 362 US 217, 80 S Ct 683, 4 L Ed 2d 668 (1960); Hester v. United States, 265 US 57, 44 S Ct 445, 68 L Ed 898 (1924).

Affirmed.

Article I, section 9, provides, in relevant part:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; * *

The Fourth Amendment provides, in relevant part:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”