State v. Vanburen

Under ORS 98.005, in order for an officer to conduct a warrantless search of a closed bag, the officer’s subjective belief that the property is lost must be objectively reasonable—only then may the officer search the property to identify its owner.

Defendant appealed from a conviction of possession of a Class 1 controlled substance on grounds that incriminating evidence was gained through an unwarranted search, and should thereby be suppressed. Officers investigating calls from Defendant’s apartment discovered a closed bag 3-5 feet from Defendant’s door in the common area of the apartment complex. Believing the bag was lost, the officers searched the bag for identification and found the Defendant’s name on prescription pill bottles as well as psilocybin mushrooms. Officers are authorized to search lost property only to identify its owner, and not to locate incriminating contraband. Defendants argue that it was unreasonable for the officers to believe that the property was lost due to the proximity of the bag to Defendant’s residence. The Court determined that the officers’ subjective belief that the bag was lost was not objectively reasonable and the trial court erred by not suppressing evidence obtained from the officers’ warrantless search. Reversed and remanded.