Submitted December 30, 2013
Douglas County Circuit Court. 10CR1169FE, 11CR1916FE. Frances Elaine Burge, Judge.
Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.
Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
[261 Or.App. 118] PER CURIAM
Defendant was convicted of possession of heroin, ORS 475.854, based on evidence discovered in a zippered pouch that police opened during an inventory at the Douglas County Jail. On appeal, defendant argues that the court erred in denying her motion to suppress that evidence because the jail's inventory policy, which gives officers unbridled discretion to open closed containers, is unconstitutional. See State v. Atkinson, 298 Ore. 1, 10, 688 P.2d 832 (1984) (a constitutionally permissible inventory must be conducted " pursuant to a properly authorized administrative program, designed and systemically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory" ).
Defendant's zippered pouch was opened pursuant to the " Douglas County Sheriff's Office Jail Procedures" for inventory of detainee property. The policy provides, in relevant part:
" Preliminary Intake--At initial intake, detainee will be relieved of all personal items (watches, jewelry, monies, wallets, etc.) whether on the physical person or in clothing. All these items will be placed in a clear sealed bag * * * and will remain with the booking deputy for purposes of examination and inventory (this includes closed containers for example: purses, fanny packs, wallets, canisters, boxes and such).
" * * * * *
" Prior to placing the inmate's clothing into a garment bag, all of the inmate's clothing will be searched. * * * All money in the possession of the inmate will be counted by the booking deputy and placed into the inmate's trust account."
(Emphasis added.) The policy defines " Inventoried Property" as " [p]roperty physically examined and entered into the computer by a deputy[,]" but the policy does not otherwise provide any guidance to officers with regard to the opening of closed containers.
[261 Or.App. 119] The state acknowledges that the jail's inventory policy does not pass constitutional muster and ...