State v. Laney

Under State v. Lien/Wilverding, 364 Or 750 (2019), it remains possible to abandon one’s privacy interest in an item based on the totality of the circumstances.

Defendant appealed his conviction for two counts of First-Degree Sexual Abuse. Defendant assigned error to the trial court’s denial of his motion to suppress photos on a computer hard drive. On appeal, Defendant argued that he did not abandon his privacy interest in the drives by relinquishing them to his then-son-in-law with instructions to destroy them. In response, the State argued that Defendant abandoned all constitutionally protected interests in the drives. Under State v. Lien/Wilverding, 364 Or 750 (2019), it remains possible to abandon one’s privacy interest in an item based on the totality of the circumstances. The Court found that Defendant abandoned his possessory and privacy interests in the hard drive. The Court observed that Defendant voluntarily separated himself from the property, without the ability to control its disposition, did not hide or attempt to hide the property in a manner that would indicate he was planning to come back for the property, and left disposition and control of the property with a third party. Additionally, the Court noted that Defendant’s son-in-law made no “strong assurances” as to the disposition of the property and was not contracted for services by Defendant, that Defendant’s instructions for the hard drive were the same for other unwanted or unusable household items, and that Defendant never checked to see if the hard drive had been destroyed. The Court reasoned that those facts showed that the evidence was sufficient to show that Defendant had relinquished both his possessory and privacy interests in the hard drive. Affirmed.