Submitted September 5, 2014
Lincoln County Circuit Court, 130875, Paulette E. Sanders, Judge.
Peter Gartlan, Chief Defender, and Alice Newlin-Cushing, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[266 Or.App. 129] DUNCAN, P. J.
In this criminal case, defendant appeals the trial court's judgment convicting him of one count of unlawful possession of methamphetamine, ORS 475.894, arguing that the trial court erred by denying his motion to suppress evidence. The state concedes that the trial court erred. We conclude that defendant's arguments are correct, and, therefore, we accept the state's concession. Accordingly, we reverse and remand.
When reviewing a trial court's denial of a defendant's motion to suppress, we are bound by the trial court's findings of fact, provided that they are supported by constitutionally sufficient evidence. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). Stated in accordance with that standard, the relevant facts are that, after arresting defendant on a warrant for failure to appear and placing defendant in handcuffs, an officer conducted a pat-down of defendant's person, looking for weapons and means of escape. During the pat-down, the officer found a metal pipe in defendant's jacket pocket. As soon as he felt the pipe, the officer knew that it was not a weapon; based on the shape and size of the pipe, he believed that it was a marijuana pipe. Continuing the pat-down, the officer found a black case inside defendant's jacket pocket. He asked the defendant what was inside the case, and defendant replied " paraphernalia." The officer removed the case from defendant's pocket, opened it, and found a glass pipe and small baggies containing a crystalline substance. The officer continued his pat-down and found a black pouch in defendant's shirt pocket. He removed the pouch from defendant's pocket and opened it, finding additional baggies containing the same crystalline substance. The officer transported defendant to the Lincoln County Jail, where he was booked.
Defendant moved to suppress all evidence resulting from the opening of the case and the pouch, arguing that, by opening the containers, the officer violated Article I, section 9, of the Oregon Constitution, which protects against [266 Or.App. 130] unreasonable searches and seizures. Defendant argued that the searches were not supported by either probable cause or an exception to the warrant requirement. In response, the state argued that the searches were valid searches incident to arrest and that the challenged evidence would have been inevitably discovered during the jail booking process.
In support of its inevitable discovery argument, the state called a jail deputy to testify about the jail's booking procedures. The deputy described the jail's general practices; the state did not submit a written booking policy. The deputy testified that when a person is arrested and brought to jail, the person's pockets may be searched and their contents removed and opened. But, not all arrestees are subject to such searches; some
go through a " book and release" process, during which they are allowed to place small items in a locker, and those items will not be searched. The deputy did not know what would have happened during defendant's booking.
The trial court denied defendant's motion to suppress, concluding that it was a valid search incident to arrest on the failure-to-appear warrant because, although the officer could not open the containers to look for evidence of the crime of arrest, he could open them to look for weapons or means of escape. The court also concluded that finding the pipe justified the search. And, as an alternative basis for denying ...