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State v. Ipsen

Court of Appeals of Oregon

October 25, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
RICHARD EUGENE IPSEN, Defendant-Appellant.

          Argued and submitted March 1, 2016

         Washington County Circuit Court D132437M Eric Butterfeld, Judge.

          Stephen A. Houze argued the cause and fled the brief for appellant.

          Andrew 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 General.

          Before DeVore, Presiding Judge, and Tookey, Judge, and Garrett, Judge. [*]

         Case Summary:

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.

         Affirmed.

         [288 Or. 396] TOOKEY, J.

         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, 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.

         We 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.

         Officer 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.

         A week 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 ...


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