FILED: April 25, 2001

STATE OF OREGON,

Respondent,

v.

TAMLANE A. KENDALL,

Appellant.

Appeal from Circuit Court, Multnomah County.

William J. Keys, Judge.

Argued and submitted December 23, 1999.

David C. Degner, Deputy Public Defender, argued the cause for appellant. With him on the briefs was David E. Groom, Public Defender.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Deits, Chief Judge, and Armstrong, Judge.

DEITS, C. J.

Reversed and remanded.

Armstrong, concurring.

DEITS, C. J.

Defendant appeals a judgment of conviction for possession of a controlled substance. ORS 475.992. He assigns error to the trial court's denial of his motion to suppress. The trial court based its denial of the motion on its conclusion that defendant abandoned any protectable privacy or possessory interest in his property. The state cross-assigns error to the trial court's decision, arguing that an alternative basis for denying the motion to suppress was that the evidence in question was discovered pursuant to a valid inventory. We reverse and remand.

We state the facts as found by the trial court when supported by evidence and, when the trial court has not made findings concerning facts that were in dispute, we presume the facts were decided in a manner consistent with the trial court's ultimate conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). While patrolling in the area of S.E. Foster Road and 97th Avenue in Portland, Officer Francis observed defendant riding his bicycle. Francis was familiar with defendant and knew that there was an outstanding warrant for his arrest. Francis yelled at defendant to stop; in response, defendant sped up and rode his bicycle away from Francis. Defendant was apparently attempting to elude Francis, who pursued him. Defendant repeatedly circled the same block in the area of S.E. Foster Road and 99th Avenue, with Francis in pursuit. Defendant cut though the same yard at 9915 S.E. Foster Road, which was located along the block that he and Francis were circling, at least three times. After passing the house at 9915 S.E. Foster Road a third time, defendant threw his bicycle into some bushes on the lot that adjoined the residence and then ran into the house at that address. Francis testified:

"It's when we had just passed the house again, 9915. And he went about maybe--see 9915 has a--like a fenced in lot connected to it where these guys in the house are storing junked cars. So he went around that lot and cut up the curb. Then it's kind of overgrown with bushes, sticker bushes and some regular tree-like shrubs or something like that. Kind of an overgrown area. That's where he threw the bike down right there."

Francis said that he saw defendant run into the house, which was about one-half block away. Apparently, defendant knew the residents of the house. Francis approached the house and called for police assistance. While waiting for assistance, Francis removed defendant's bicycle from the bushes and placed it near his patrol car. When police assistance arrived, Francis and another officer went to the door of the house and asked to see defendant. After a few minutes, defendant came out of the house and Francis arrested him.

A leather zippered shaving kit, which Francis described as a small travel bag, was attached by a bungee cord to the back of defendant's bicycle. At some point before leaving 9915 S.E. Foster Road, Francis opened the shaving kit and inventoried its contents. Inside, Francis found $9 in quarters, a pair of shorts, defendant's eyeglasses, and a small, opaque plastic key case. Francis opened the key case and discovered a bindle of "brown chunky powder substance," which the police laboratory later identified as methamphetamine.

At trial for possession of a controlled substance, defendant moved to suppress all evidence obtained from Francis's inventory, including the evidence found in the key case, arguing, inter alia, that the search violated Article I, section 9, of the Oregon Constitution. In response, the state argued that defendant had abandoned any protectable privacy or possessory interests in the bicycle and the bag. In the alternative, it contended that, even if defendant had not abandoned his interests, the officer discovered the methamphetamine pursuant to a valid police inventory policy. The trial court first rejected the state's argument that the search of the key case was part of a valid inventory. The court then denied defendant's motion to suppress, concluding that defendant had abandoned his privacy or possessory interests and, thus, the officer's search of defendant's property was permissible. We turn first to the issue of abandonment.

In State v. Knox, 160 Or App 668, 675-76, 984 P2d 294, rev den 329 Or 527 (1999), we explained:

"'Abandonment' is a voluntary relinquishment of possessory and privacy interests in an article of property that necessarily involves both legal and factual questions. For purposes of 'abandonment' in the constitutional sense under the Fourth Amendment, the question is whether a defendant, in discarding the property, has relinquished a reasonable expectation of privacy so that the seizure is reasonable. In essence, what is abandoned is not necessarily the defendant's property interest under the law of property but the reasonable expectation of privacy in the property. However, if the possessor has been coerced by illegal police conduct, courts will not consider the property to be abandoned in the constitutional sense." (Citations omitted.)

We went on to explain that the question under Article I, section 9, is similar: "Has defendant relinquished his privacy or possessory interest in the [property] under circumstances that makes its seizure reasonable?" Id. at 676.

The critical inquiry here is whether, under all of the circumstances, defendant abandoned his privacy or possessory interest in the bicycle and the attached bag. See State v. Kauffman, 162 Or App 402, 407, 986 P2d 696 (1999), rev den 329 Or 650 (2000) (we examine the totality of the circumstances in determining whether a defendant has abandoned a protected possessory or privacy interest). We note at the outset that defendant does not contend that Francis's pursuit and arrest of defendant was illegal in any respect, and, consequently, we must decide only whether defendant intended to forgo the exercise of his privacy and possessory interests. See State v. Ray, 164 Or App 145, 152 n 9, 990 P2d 365 (1999) (noting that the determination of whether a defendant has abandoned a constitutionally protected privacy interest after lawful police conduct turns on whether the defendant intended to forgo the exercise of his or her possessory and privacy interests).

After considering the entire circumstances here, we conclude that defendant did not abandon his privacy or possessory interests in the bicycle and the attached bag. Although defendant separated himself from his possessions while being pursued by the police, he placed those possessions in the bushes on private property rather than in a place that was completely open to the public and where it was likely that members of the public would inspect them. See State v. Belcher, 89 Or App 401, 405, 749 P2d 591, aff'd 306 Or 343, 759 P2d 1096 (1988) (defendant had abandoned privacy interest after fleeing police and leaving his pack "in a public place"). The exact relationship of the fenced lot to the property at 9915 S.E. Foster Road is not entirely clear from the record. The lot was either a part of the property on which the house was located or, at a minimum, it was used by the residents of the house for the storage of junked vehicles. Further, as noted above, defendant remained in the general area where he placed his bicycle--he fled to a house that was about one-half block away.

Another part of the circumstances that we consider significant here is the nature of the property involved. Defendant placed his bicycle, a type of vehicle, on the lot. He then left it there and went inside a nearby house. It is common for a person to leave property of this nature outdoors, unattended. Our statutes, in fact, commonly treat vehicles differently than other property that is left unattended. Compare ORS 819.110 (vehicles deemed abandoned if there is reason to believe the vehicle is in fact abandoned and it is left for more than 24 hours on any public way without authorization) with ORS 98.005 (where money or goods are found and the owner is unknown, such property is considered lost). See also Wayne R. LaFave, 2 Search and Seizure