and submitted March 1, 2016
County Circuit Court D132437M Eric Butterfeld, Judge.
Stephen A. Houze argued the cause and fled the brief for
M. Lavin, 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
DeVore, Presiding Judge, and Tookey, Judge, and Garrett,
Defendant appeals a judgment of conviction for eight counts
of second-degree invasion of personal privacy and two counts
of attempted second-degree invasion of personal privacy.
Defendant assigns error to the trial court's denial of
his motion to suppress evidence obtained as a result of a
purported unlawful search. Defendant argues that the state
failed to prove that he abandoned his privacy interests in
the contents of a device left in a Starbucks bathroom.
Held: The trial court did not err in denying
defendant's motion to suppress because defendant had
abandoned any constitutionally protected interest in the
device at the time of the warrantless search.
Or. 396] TOOKEY, J.
appeals a judgment of conviction for eight counts of
second-degree invasion of personal privacy and two counts of
attempted second-degree invasion of personal privacy, ORS
163.700. Defendant assigns error to the trial court's
denial of his motion to suppress evidence obtained as a
result of a purported unlawful search. For the reasons that
follow, we affirm.
recite the facts consistently with the trial court's
findings. On May 1, 2013, a Starbucks employee found what
appeared to be an AC adapter in the Starbucks public
bathroom; the device appeared similar to a cell phone or
camera charger. The device was in plain view, plugged into an
outlet near the sink, facing the toilet. Upon closer
inspection, the employee noticed that the device had a small
rainbow-colored lens and that the device did not have a cord,
as would be expected for a cell phone or camera charger. The
employee showed the device to his shift supervisor, who
agreed that the device did not look like a charger; rather,
they agreed that the device looked like a camera. Believing
the device to be a camera, the Starbucks employee called the
Sherwood Police Department. The employee later testified
that, although Starbucks has a procedure for lost and found
items, because he was concerned that the device was a camera,
the employee decided to turn the device over to the police.
Miller responded to the call at the Starbucks location.
Miller explained that the Starbucks employee was
"adamant that he thought [the device] was a
camera." The employee showed Miller a pinhole on the
front of the device where the employee believed the camera
was located. After examining the device and being unable to
determine whether it was a camera, Miller gave the Starbucks
employee a property receipt, treating the device as he would
"any found property." Before leaving the store,
Miller instructed the Starbucks employees that if someone
came looking for the device, the employees should notify that
person that the device had been turned over to the police
department and that the person could retrieve the device from
the department. When he returned to the police department,
Miller [288 Or. 397] placed the device "into evidence as
found property." Miller also searched the Internet for
AC adapters, but was unable to find an image that was
identical to the device found. As a result, Miller was unable
to confirm that the device was just an AC adapter, but was
similarly unsure that the device was a camera.
later, on May 8, 2013, Captain Hanlon was reviewing the
Sherwood Police Department's calls for service from the
week prior. The call concerning the device found at Starbucks
"piqued [Hanlon's] curiosity" because it
reminded him of a similar, unrelated case involving a hidden
device. At the time, Hanlon was not aware that anyone had
attempted to retrieve the device from Starbucks. Sergeant
Powell retrieved the device from evidence and Hanlon
inspected it. Hanlon noticed the pinhole on the front of the
device and, based on his training and experience, Hanlon knew
that the pinhole could either be "a camera or an LED
light that would indicate" whether the device was
charging. Hanlon also noticed that, unlike a normal AC
adapter, the device's ...