Argued and Submitted October 31, 2013.
Lane County Circuit Court. 201026154. Charles M. Zennaché, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[262 Or.App. 556] EGAN, J.
Defendant stands convicted of one count of unlawful possession of methamphetamine, ORS 475.894; he appeals from the judgment of conviction, assigning error to the trial court's denial of his motion to suppress evidence. That evidence included a methamphetamine pipe, which was concealed in a sock that defendant had stowed in the pocket of his coat. A police officer discovered the sock while patting defendant down in conjunction with defendant's arrest on an outstanding warrant; the officer then opened the sock and observed the pipe. Defendant contends that the warrantless opening of the sock violated Article I, section 9, of the Oregon Constitution  and that the trial court erred in denying his motion on the ground that the discovery of the pipe could be sustained under the Lane County Sheriff's Office inventory policy. For the reasons below, we reverse and remand.
We review the denial of a motion to suppress for errors of law; we defer to the trial court's factual findings when there is sufficient evidence in the record to support them. State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993).
Springfield Police Officer Quinones arrested defendant on an outstanding warrant. After placing defendant in handcuffs, Quinones
patted him down to search for weapons and any implements that defendant might employ to make an escape. While doing so, Quinones felt a four-inch-long, cylindrical object with a bulb at one end in the pocket of defendant's coat. Quinones removed the object, which was contained in a closed white sock, from defendant's coat; he did not directly observe the object but stated that it felt like glass. When Quinones placed the sock on the hood of his patrol car, he recognized the sound of glass hitting metal. At that point, Quinones believed that the object was a pipe used for smoking illegal drugs.
Quinones opened the sock and observed that the object was a pipe with carbonized residue on it. He asked [262 Or.App. 557] defendant what the pipe was for; defendant responded that it looked like it was for smoking meth. He then asked defendant what substances would be revealed by a test of the pipe; defendant responded, " meth." Defendant was then taken to the Lane County Jail.
Defendant moved before trial to suppress both evidence of the pipe and all derivative statements that he made to the police on the ground that Quinones's act of opening the sock constituted an unlawful search. In response, the state contended that the act of opening the sock was justified as a valid search incident to arrest or, in the alternative, that suppression was not warranted because Quinones opened the sock while acting in compliance with the Lane County Sheriff's inventory policy. After a hearing, the trial court rejected the state's search-incident-to-arrest arguments:
" I think the officer was candid with me when he said that he had established probable cause. I believe he had probable cause to arrest [defendant] for the charge of possessing drugs or dealing drugs at the time that he saw the pipe, but that would have been after he opened the sock. Therefore, * * * I reject the State's ...