Argued and Submitted: February 19, 2013.
Lane County Circuit Court. 231017970. Charles D. Carlson, Judge.
Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Douglas F. Zier, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[261 Or.App. 187] DUNCAN, P. J.
In this criminal case, defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence obtained as a result of the seizure of his backpack and the subsequent search of the backpack and its contents. For the reasons explained below, we conclude that the seizure violated Article I, section 9, of the Oregon Constitution and that the evidence discovered as a result of the seizure should have been suppressed. Accordingly, we reverse and remand.
We review a trial court's ruling on a motion to suppress evidence for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). When we do, we are bound by the trial court's findings of fact, provided that they are supported by constitutionally sufficient evidence. Id. Stated in accordance with that standard, the relevant facts are as follows. On August 12, 2010, Officer Jed McGuire of the Eugene Police Department was dispatched to a park in Eugene in response to an anonymous complaint. When McGuire arrived at the park, defendant and three other men were present. McGuire spoke to one of the other men, Roberts, who was wearing a backpack. When McGuire asked Roberts for identification, Roberts reached for the backpack on his back and said, " Oops, I grabbed the wrong bag." Roberts took off the backpack and placed it on the ground next to defendant, saying, " This is your bag." Defendant began to reach for the backpack, saying, " This is my bag," but McGuire instructed him to stop. Meanwhile, Roberts took his wallet and identification out of another, similar-looking backpack.
McGuire learned that there was an outstanding warrant for defendant's arrest. He took defendant into custody and began to walk with defendant toward his patrol car. They had taken a few steps toward the car when McGuire said, " Oh, I forgot your backpack." In order to retrieve the backpack, McGuire returned to the area where he had first encountered the four men. Defendant said, " That's not my backpack." McGuire retrieved the backpack despite defendant's statement that it was not his backpack.
[261 Or.App. 188] Once McGuire and defendant arrived at the patrol car, McGuire inventoried defendant's pockets and the backpack. He found a syringe plunger cap in defendant's pants pocket. In the backpack, he found a syringe that was missing its plunger cap, a small plastic baggie, and a shortened plastic drinking straw containing a white crystalline substance, which he believed was methamphetamine. He also found a small spiral-bound notebook. He opened the notebook and read a letter, which began, " Greetings, mother, it is I Henry, youngest child." Defendant's first name is Henry.
McGuire lodged defendant in the Lane County jail on the outstanding warrant and for possession of methamphetamine. McGuire filled out a property receipt form and secured the backpack in a locker located outside the jail for defendant to retrieve upon his release.
Defendant filed a motion to suppress the evidence that McGuire had obtained as a result of the seizure of defendant's backpack and the subsequent search of the backpack and its contents, citing Article I, section 9, of the Oregon Constitution. At the hearing on the motion, the state made a brief opening statement:
" For the State, Your Honor, briefly, the State's position is that the only issue that can possibly be raised here is regarding inventory. The State's position [is] that [defendant's] belongings were searched pursuant to the validly promulgated, and authorized policy of [Eugene Police Department], and the ...