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State v. Woods

Court of Appeals of Oregon

September 27, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
BENJAMIN DEAN WOODS, Defendant-Appellant.

          Argued and submitted May 24, 2016.

         Marion County Circuit Court 13C46649; Dale Penn, Judge.

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Shor r, Judge. [*]

         [288 Or. 48] Case Summary: Defendant appeals from a judgment convicting him of five counts of encouraging child sexual abuse in the second degree. ORS 163.686. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence discovered when an officer searched defendant's cell phone. The officer obtained the phone after a woman surrendered the phone to the police department to prevent defendant from returning to her home to recover it. In response, the state contends that the trial court correctly concluded that the officer's search was justified by the lost property exception to the warrant requirement of Article I, section 9, of the Oregon Constitution. The state further argues that, even if the trial court erred, defendant is not entitled to suppression of all of the challenged evidence because the officer would have discovered some of the evidence using other constitutional investigatory procedures. Held: The trial court erred in denying defendant's motion to suppress. To apply, the lost property exception requires that a searching officer have an objectively reasonable belief that the property is lost at the time of the search. The searching officer in this case lacked such a belief. Further, defendant was entitled to suppression of all evidence obtained as a result of the illegal search because the state failed to present evidence that police would have engaged in other predictable investigatory procedures that would have produced the evidence the state argued should not be suppressed.

         [288 Or. 49]

          SHORR, J.

         Defendant appeals from a judgment convicting him of five counts of encouraging child sexual abuse in the second degree. ORS 163.686. Defendant assigns error to the trial court's denial of his motion to suppress evidence. That evidence was obtained after an officer searched defendant's cell phone after a woman, who had kicked defendant out of her home, surrendered the phone to the police department. The state contends that the trial court correctly concluded that the officer's search was justified by the lost property exception to the warrant requirement of Article I, section 9, of the Oregon Constitution. We disagree with the state and conclude that the lost property exception did not justify the search in this case. Accordingly, we reverse and remand.

         We are bound by the trial court's findings of historical fact that are supported by constitutionally sufficient evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). Further, if findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided in more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion. Id. Applying that standard of review, we recite the following facts.

         One evening, Officer Grady Nelson of the Hubbard Police Department was pulling up to the Hubbard police station. As he approached the station, Nelson noticed a white sport utility vehicle (SUV) driving away. Because the police station had closed to the public 15 minutes earlier and, in Nelson's experience, people often show up at the police station when they are having a problem, Nelson recorded the SUV's license plate and ran it through a law enforcement and Oregon Driver and Motor Vehicle Services (DMV) database to determine the owner. Both of those databases indicated that the vehicle was unregistered. Nelson was also unable to identify the SUV's driver as it drove away.

         After the SUV departed, the police department's finance director approached Nelson. The finance director told Nelson that a woman had come into the police station and told him that she had just kicked a man out of her home and that the man had left a phone behind. He also told [288 Or. 50] Nelson that the woman had told him that she was forfeiting the phone to the police so that the man would not return to her home to retrieve it.

         Nelson asked the finance director if he had obtained any information about who the woman was. The finance director said that he had not. He noted that the woman just dropped off the phone and left because he was locking up the police station. The finance director did say, however, that the woman was driving a white vehicle that Nelson assumed to be the white SUV that he had just watched leave.

         After the finance director left, Nelson entered the police station and found the cell phone that the woman had left behind. At that point, in an attempt to ascertain the phone's owner, Nelson picked up the phone, opened it, and began searching for any indication of who owned the phone. He began by looking at the phone's "home screen" for any indication of an owner. After that search proved fruitless, he checked the call log for any names indicating a familial relationship, such as "mom, " "dad, " "wife, " or "kid, " so that ...


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