Argued and Submitted June 26, 2013.
Curry County Circuit Court. 11CR0094. Cynthia Lynnae Beaman, Judge.
Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Edmonds, Senior Judge.
[262 Or.App. 716] NAKAMOTO, J.
Defendant appeals a judgment of conviction for unlawful possession of a Schedule I controlled substance, ORS 475.840. He assigns error to the trial court's denial of his motion to suppress evidence discovered during a warrantless search of a closed bag that was located several feet outside of the entrance to his apartment. The state argued that the search was lawful under State v. Pidcock, 306
Ore. 335, 759 P.2d 1092 (1988), cert den, 489 U.S. 1011, 109 S.Ct. 1120, 103 L.Ed.2d 183 (1989), because the police reasonably believed that the bag was lost property and conducted the search to ascertain the identity of the bag's owner. The court agreed with the state and denied defendant's motion. On appeal, defendant argues that Pidcock does not apply when, as here, it was not objectively reasonable for the police to conclude that the property was actually lost. The state responds that (1) defendant did not preserve that argument; (2) neither Pidcock, nor the statute interpreted in that opinion, ORS 98.005 (1973), amended by Or Laws 1989, ch 522, § 1, Or Laws 2013, ch 220, § 1, entails such a reasonableness requirement; and (3), in any event, it was reasonable in this case to conclude that the bag was lost property. Assuming arguendo that ORS 98.005  and Pidcock authorize a police officer who finds lost property to conduct a warrantless search of it to identify its owner, we hold that the officer's subjective belief that the property is lost must be objectively reasonable under the circumstances. It was not objectively reasonable under the circumstances here for the police to believe that
defendant's bag was lost. The trial court erred when it concluded otherwise. Accordingly, we reverse and remand.
We limit our review to the facts available to the trial court when it decided the motion. State v. Mazzola, 238
Or.App. 201, 203, 242 P.3d 674 (2010). The relevant facts are not in dispute. Officer Oller and Sergeant Giovannetti of the Gold Beach Police Department went to defendant's [262 Or.App. 717] apartment one evening to investigate allegations that he had been making threatening phone calls to another individual. The entrance to defendant's apartment was located on the ground floor of a two-story apartment building. There are three to four additional units in this building.
A raised walkway abuts the ground floor. The walkway is approximately 10 feet wide and 20 feet long. All tenants have access to the walkway. The walkway may be accessed from the street--there is no locked gate to prohibit the general public from entering; however, there can be parked cars that would-be entrants must walk around to reach the walkway.
Upon arriving, Oller and Giovannetti knocked on defendant's door and the window adjacent to his door for a period of no more than two minutes. Oller then noticed a closed black bag lying on the walkway near a small table, from " [a]pproximately three" to " [a]t most five feet" away from defendant's front door. Oller testified that the bag was " [m]aybe 75 feet" away from the street, on private property, and that a person walking down the street could not have seen the bag.
There was nothing on the bag's exterior to indicate the owner's identity. Oller believed that the there may have been valuables in the bag because " [t]hose bags usually have video equipment or cameras inside of them." Giovannetti also thought that the bag looked like " some sort of camera bag." Later, at defendant's omnibus hearing, the state asked Giovannetti, " When you looked at [the bag], * * * were you thinking this is probably [defendant's], or were you thinking you don't know who this belongs to?" Giovannetti responded, " I honestly didn't know who it belonged to." Giovannetti then stated that the bag appeared to him to be lost property.
After noticing the bag, Oller " collected [it] * * * for safekeeping" and then opened it to " identify the owner" and " identify what valuables were inside of it." When he opened the bag, Oller discovered some prescription medication bottles, marijuana, and what appeared to be psilocybin mushrooms. Defendant's name was on the prescription bottles.
[262 Or.App. 718] As Oller opened and searched the bag, Giovannetti continued to knock on defendant's door. At that point, defendant answered the door. Defendant was ultimately indicted for possession of psilocybin mushrooms.
Defendant filed a motion to suppress the evidence discovered during the warrantless search of the bag on the ground that it had been obtained through a search that violated Article I, section 9, of the Oregon Constitution. The state responded that, " because, when Officer Oller and Sergeant Giovannetti observed the bag, the bag was in a common area of an apartment complex with no one around[,]" Pidcock authorized the warrantless search of defendant's bag as lost property. Following testimony from Oller and Giovannetti as to the above-recited facts, defendant asserted that Pidcock did not govern because it was not reasonable to conclude that the bag was actually lost. The court then denied the motion, explaining that
" the officer had reason and was reasonable in believing that [the bag] would contain something of value. The officer had a legitimate purpose to check inside the bag to try to identify the owner of that bag * * *. He's attempting, as a finder of lost property, to attempt to return the property, and he had reason to search it * * *--it was a lawful search of the bag in that attempt."
On appeal, the parties renew their dispute as to whether the police reasonably concluded
that the bag was lost property. The parties also disagree as to whether, as a threshold matter, such a reasonableness requirement even exists. The state argues additionally that defendant failed to preserve the latter argument. See ORAP 5.45(1) (" No matter claimed as error will be considered on appeal ...