Argued and Submitted April 22, 2014
Josephine County Circuit Court 101286M. . Lindi L. Baker, Judge.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for Appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.[*]
[264 Or.App. 561] TOOKEY, J.
Defendant, who was convicted following a conditional plea of guilty to one count of attempting to elude a police officer, ORS 811.540, and one count of criminal driving while suspended or revoked, ORS 811.182(4), appeals his judgment of conviction. He challenges the trial court's denial of his motion to suppress evidence of his identity, revealed by his driver's license, which was found when a deputy removed a wallet from a pair of shorts during a motor vehicle inventory. Defendant first argues that the deputy obtained evidence of his identity in violation of Article I, section 9, of the Oregon Constitution,
because the warrantless search of the shorts was not authorized by the inventory policy. Defendant alternatively argues that the inventory policy itself violates Article I, section 9, " because it authorizes deputies to search closed containers that are not intended primarily to hold valuables" and " allows the deputies to exercise discretion in determining which closed containers to open[.]" We conclude that the evidence in the record does not support a determination that the inventory was conducted pursuant to the inventory policy and does not satisfy the constitutional requirements for a warrantless search. Accordingly, we reverse and remand.
Our standard of review is as follows:
" The physical characteristics of a container and the circumstances under which a container is found constitute historical facts. Historical facts, as found by a trial court, are binding on review if there is evidence in the record to support them. If findings are not made on all such issues, [264 Or.App. 562] and there is evidence from which such facts could be decided in more than one way, then we will presume that the facts were decided in a manner consistent with the trial court's denial of the motion to suppress. Whether the facts support a determination that the officers' inventory was conducted pursuant to the [policy] and ultimately satisfy the constitutional requirements for a warrantless search is a question of law."
State v. Swanson, 187 Or.App. 477, 482, 68 P.3d 265 (2003) (internal quotation marks and citations omitted).
In its letter opinion, the trial court summarized the undisputed facts as follows:
" Deputy Mason had followed/chased the defendant driving a vehicle and upon stopping in a relatively remote area and residence driveway, the defendant left the vehicle and ran. The officers attempted but were unsuccessful in finding the defendant. In ...