Argued and Submitted March 6, 2014
Multnomah County Circuit Court. 111034516. Christopher J. Marshall, Judge.
Convictions on Counts 2 and 3 vacated and remanded for further proceedings; otherwise affirmed.
Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Anna M. Joyce, Solicitor General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Michael R. Salvas, Assistant Attorney General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[263 Or.App. 685] GARRETT, J.
A jury convicted defendant of two counts of burglary in the second degree, ORS 164.215, and two counts of criminal mischief in the first degree, ORS 164.365. On appeal, defendant assigns error to the denial of his motions to suppress evidence obtained after police searched his vehicle. Defendant argues that the vehicle was illegally seized when police, acting without a warrant, towed the vehicle to an impound lot; defendant argues further that the warrant that police later relied upon to search the vehicle was issued without probable cause. Defendant also assigns error to the denial of his motion for a judgment of acquittal on the burglary charges, arguing that the state failed to establish that he entered a " building" within the meaning of ORS 164.215.
For the reasons that follow, we agree with defendant that the warrantless tow of his vehicle was unlawful because the state failed to show that the " administrative seizure" exception to the warrant requirement applied in this case. The trial court therefore erred in denying the motion to suppress on that basis. We remand, however, in order for the trial court to determine whether, as the state argues, the evidence that defendant sought to suppress would have been discovered regardless
of the illegal seizure. Separately, we reject defendant's arguments that the search warrant was based on " stale" information and that he did not enter a " building" for purposes of the burglary statute.
The Portland Water Bureau (PWB) owns a facility on Northeast Airport Way in Portland. The property is enclosed by a chain-link fence and contains, among other things, several permanent buildings, a shipping container, and a groundwater pumping station that provides backup water supply for the City of Portland. The site is adjacent to a piece of publicly accessible property that includes a nature path, a boat launch, and a parking area.
At all relevant times, PWB was leasing part of the Airport Way facility to a private company, Carollo Engineers (Carollo), for the purpose of conducting tests on water treatment systems. Carollo did not use any of the permanent [263 Or.App. 686] buildings at the site; rather, its employees worked in large tents, which were described at trial as the type of " party tents" that " you might see out at a waterfront event." The tents had roofs and waterproof canvas walls around all four sides. Workers entered and exited though flaps on the walls. The tents were temporary structures that were erected for periods ranging from six weeks to nine months.
When in use, the tents would function as a temporary testing facility, housing various pieces of equipment used to monitor water quality and power usage. The tents protected piping through which employees could access and test the water. Engineers also placed a work bench inside the tents. At the end of the work day, smaller, portable items would be locked in the shipping container outside the tents; larger items were left in the tents, including the water treatment equipment and control systems being tested.
In August 2011, there was a break-in at the PWB property. Carollo employees arrived at work to discover that the lock on the shipping container had been broken and several items had been removed from the container. A toolbox had been opened and its contents scattered about one of the tents. A chlorine kit and a pH pen  were missing from the toolbox. Employees then observed that a hole large enough to drive a car through had been cut into a section of the perimeter fence. Investigating the scene later that morning, Portland police discovered a " 4x4" decal, which appeared to have become detached from a vehicle, lying on the ground near the hole in the fence.
A second break-in occurred at the PWB facility on the night of October 14, 2011. That time, PWB security observed a vehicle parked just outside the PWB site, on the adjacent public property, near the perimeter fence. They also observed an unknown person moving inside one of the tents. Portland police responded to the scene. The vehicle, a Jeep Grand Cherokee, appeared to have been driven through the parking lot for the boat launch and onto a grassy area so that it was concealed behind a row of trees. Police also found [263 Or.App. 687] that the lock on the PWB facility gate had been cut. Police observed defendant walk into one of the tents and eventually approach the fence. Defendant was arrested.
Defendant was carrying a bag containing a pipe wrench, a flashlight, and bolt cutters. He did not have any property on his person that belonged to PWB or Carollo. Defendant told police that that the Jeep was his, but he refused to consent to a search of the vehicle.
After defendant was taken from the scene, police observed that the Jeep's rear seats were folded down and covered by a blanket. Officer Parry then called a towing company to remove the vehicle. During a pretrial hearing on defendant's motion to suppress, the state questioned Parry about the decision to tow the vehicle:
" [THE STATE:] Did you believe that that car contained or could contain any criminal evidence?
" [PARRY:] Yes, I did believe that.
" [THE STATE:] All right. And in--so this car's parked sort of offset from a parking lot. As an officer, what are your options for getting that vehicle out of there?
" [PARRY:] I didn't try--I mean, I didn't have a key for the vehicle so I couldn't drive it out and that's not an option. I don't drive other people's vehicles. So the option that we have as law enforcement is to tow the vehicle.
" [THE STATE:] Were you aware of any other reasonable disposition for that vehicle available to you at that time besides towing?
" [PARRY:] No, I was not.
" [THE STATE:] All right. And where that car was parked, to the best of your recollection, was it blocking anything or interfering with the use of that parking lot or was it just sort of off to the side?
" [PARRY:] No, it was off to the side, up against the fence.
" [THE STATE:] All right. And was the car, in fact, towed?
" [PARRY:] Yes, it was."
The Jeep was taken to the police impound lot, a secure facility where police send cars " as a matter of course." Parry also [263 Or.App. 688] put a " hold" on the vehicle, which served the purpose of notifying the police bureau's burglary task force so that they would " eventually look at the vehicle."
The same night that defendant was taken into custody, he was interviewed by Officer Lobaugh, a member of the burglary task force, at the Southeast precinct. Defendant admitted to cutting the lock on the perimeter fence and breaking into the PWB property that night. Defendant explained, " I had some bad luck at the poker machine and I needed some money, so I thought I'd get some scrap metal and turn it in and get some money." He said he had been at the site for only about five minutes before police arrived. Defendant denied any involvement in the August break-in. Lobaugh asked about the " 4x4" decal that police had found at the scene of the August break-in; defendant replied that it could not have come from his Jeep because it did not have those types of decals.
Four days after the interview, Lobaugh took the 4x4 decal to the vehicle impound lot. Upon examining the exterior of defendant's Jeep, Lobaugh discovered that it appeared to be missing a decal, and that the decal from the scene of ...