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State v. Cherry

Court of Appeals of Oregon

May 7, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
WILLIE TERRY CHERRY, Defendant-Appellant

Argued and Submitted July 31, 2013.

Page 814

Marion County Circuit Court. 11C40180, 10C41726. Joseph V. Ochoa, Judge.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.

OPINION

Page 815

[262 Or.App. 614] DUNCAN, P. J.

Defendant, who entered a conditional plea of guilty, ORS 135.335(3), to two counts of identity theft, ORS 165.800, and one count of giving false information to a peace officer, ORS 162.385, appeals from the resulting judgment, assigning error to the trial court's denial of his motion to suppress evidence.[1] We agree with defendant that (1) he was searched in violation of Article I, section 9, of the Oregon Constitution [2] when a jail deputy, pursuant to an invalid administrative inventory policy, removed checks from defendant's pocket, and (2) the evidence discovered as a result of the search must be suppressed. Accordingly, we conclude that the trial court erred in denying defendant's motion to suppress, and we reverse and remand the challenged judgment.

We review the trial court's denial of defendant's motion to suppress for errors of law. State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's findings of fact provided there is constitutionally sufficient evidence in the record to support them. Id. If the trial court did not make express findings of fact and there is evidence from which the facts could be decided in more than one way, we presume that the court decided the facts in a manner consistent with its ultimate conclusion. Ball v. Gladden, 250 Ore. 485, 487, 443 P.2d 621 (1968). Stated in accordance with those standards, the relevant facts are as follows.

Officer Bidiman of the Salem Police Department arrested defendant for giving false information to a peace officer. Bidiman brought defendant to the Marion County Jail, where Deputy Strubb inventoried defendant's property. Strubb discovered ten checks in defendant's pocket. The checks were from five different financial institutions and five different accounts. One check was made out to defendant, three were blank, and the remaining six were made [262 Or.App. 615] out to persons other than defendant. Strubb suspected that the checks were evidence of a crime, and he turned them over to Bidiman, who initiated a criminal investigation into defendant's possession of the checks. Bidiman questioned defendant and contacted some of the account holders. After completing his investigation, Bidiman filed a probable cause statement and cited defendant for two counts of identity theft.

Page 816

The state charged defendant with one count of giving false information to a peace officer and two counts of identity theft. Defendant filed a motion to suppress " any and all evidence" obtained as a result of " the warrantless search of defendant and his belongings" on the ground that the search violated Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution. Specifically, defendant moved to suppress " evidence pertaining to [the] checks found on his person * * * and statements [he] made * * * in response to questions about these checks." In response, the state asserted that Strubb found the checks while inventorying defendant's property pursuant to Marion County Sheriff's Office Policy 3315, which is entitled " Inmate Personal Property." [3] The state introduced [262 Or.App. 616] a copy of Policy 3315 as Exhibit 1 at the hearing. The state further asserted that Strubb turned the checks over to Bidiman pursuant to a second policy, Policy 3135, which is entitled " Contraband Control." The state introduced a copy of Policy 3135 as Exhibit 2.

In reply, defendant argued that Policy 3315, upon which the state relied to justify Strubb's search of defendant and seizure of his property, is invalid for two reasons. First, defendant argued that Policy 3315 is invalid because it authorizes deputies to open all closed containers and, therefore, is overbroad. Second, defendant argued that Policy 3315 is invalid because, in his view, it authorizes deputies to conduct investigatory ...


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