Argued and Submitted February 18, 2014
Lane County Circuit Court, 201110047, 211111664, Maurice K. Merten, Judge.
Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Jason Paul Hite filed a supplemental brief Pro se.
Andrew M. Levine, 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.
[266 Or.App. 712] HADLOCK, J.
Defendant seeks reversal of a number of convictions related to identity theft and forgery. Before trial, defendant moved to suppress evidence found in his backpack after he was arrested on an outstanding warrant, arguing that the police unlawfully searched the backpack. The trial court ruled that the police were required to inventory the contents of the backpack before taking defendant to jail, and it denied the motion to suppress. On appeal, defendant argues, among other things, that the search was unlawful because it was not conducted pursuant to a facially valid inventory policy that sufficiently limited the scope of the inventory. The state contends that the inventory policy is sufficiently limited and, alternatively, that the search was a constitutionally permissible search incident to defendant's arrest. We agree with defendant that the inventory policy is unconstitutionally overbroad. We reject the state's alternative argument because the state did not raise it in the trial court and, if it had, defendant might have been able to create a different record on the issue. Accordingly, we reverse as to the challenged convictions.
The material facts are undisputed. In January 2011, defendant was on probation for an offense unrelated to this case. As a condition of his probation, defendant was subject to being visited at home by his probation officer, Kenneth Border. During one such visit, Border discovered what appeared to be evidence of identity theft and forgery in a room that defendant had set up as a tattoo parlor. Border contacted the Eugene Police Department and informed Detective Patrick Willis of what he had found. Willis went to defendant's home and conducted a more thorough search. Among other things, he found a wallet containing a number of driver's licenses and other forms of identification that did not belong to defendant or anyone else living in the house; equipment and supplies that could be used for forging checks and identification cards, including a high-quality color printer; discarded paper with printing that appeared to reflect attempts to create a driver's license with defendant's picture and address but the name Gary Keith Walker; several checks purporting to be from Oak Leaf Property Management that were made out to [266 Or.App. 713] different people, including " G. Keith Walker" ; a check written by someone named Clyde Green to American Mattress Company in 2004, which had been processed by Green's bank; and a computer protected by a password that consisted in part of defendant's nickname, " Fix." Defendant told Willis that other people used the tattoo parlor for various activities. He acknowledged that crimes were being planned there, but he denied being involved. He also denied knowing about the discarded fake driver's licenses, saying that other people must have used his picture to make them in hopes of recruiting him to their criminal operation.
Willis seized the evidence. Further investigation showed that the checks purporting to be from Oak Leaf Property Management were not genuine. A forensic examination of defendant's computer revealed that it had check-writing software that appeared to have been used to create those checks. That software allows the user to enter information for checking accounts--including the payor's name and address, the bank's name, and the account number--from which checks can be written using the software. Information for nine checking accounts had been entered, including one for Oak Leaf Property Management and one for Clyde Green. The software also allows the user to enter and save information for payees--people to whom checks can then be written without having to reenter their information each time. The list of payees on defendant's computer included defendant and G. Keith Walker, both with defendant's address. The software also listed all of the checks that had been created and printed for each of the checking accounts. The list for one account showed that six checks had been made with defendant as the payee. The list for the Oak Leaf Property Management account showed that four checks had been written to G. Keith Walker.
The software also appeared to have been used to create a check that had not previously been connected to defendant. That check purported to be drawn on the bank account of the Beauty Star Salon and was made out
to a person whose last name was Bacon in the amount of $3,250. Bacon had been a customer at the salon. She attempted to cash the check at the salon's bank in July 2010, but the bank called the salon's owner, who denied having written the [266 Or.App. 714] check. The check-writing software on defendant's computer had a payor account under the name " Beauty Star Salon" ; the bank name and address and the checking account number all matched the information on the check that Bacon had attempted to cash. Bacon's name was also on the payee list, along with an address that matched the one given for Bacon on the check.
Based on the seized evidence, defendant was later indicted for 13 counts of identity theft, ORS 165.800, one count of criminal possession of a forgery device, ORS 165.032, and one count of first-degree criminal possession of a forged instrument, ORS 165.022. One of the identity theft counts was based on the discarded evidence of the attempts to create a forged driver's license in Walker's name. Another identity-theft count was based on the forged check purporting to be from the Beauty Star Salon. The remaining identity theft counts were based on other identification documents that turned out to have been stolen. The count for criminal possession of a forgery device was based on defendant's computer, the printer, and other equipment and supplies seized from his tattoo parlor. The count for criminal possession of a forged instrument was based on the four checks purporting to be from Oak Leaf Property Management. A warrant for defendant's arrest was issued.
In May 2011, Eugene police officer Ryan Molony parked his patrol car near defendant's home. Detective Willis had requested that officers attempt to locate defendant and notify him if they did. While he was parked there, Molony saw a man and a woman walking nearby. The woman shoved the man, and the couple engaged in " a little bit of a scuffle." Molony called for backup, got out of his car, and approached the couple. As he did, he recognized the man as defendant. Defendant was carrying a backpack, and the woman, who turned out to be defendant's wife, Melissa Hite, was carrying a purse. Molony separated them and told them to put [266 Or.App. 715] their bags down and to sit on the sidewalk. They both put their bags down but, instead of sitting, both squatted down. Molony again told them to sit. Defendant jumped up and ran away, leaving his backpack behind, but he tripped over the curb on the other side of the street, and Molony caught him there and took him into custody. While Molony was dealing with defendant and waiting for backup officers to come, Hite picked up defendant's backpack and left. When another officer, Malcolm McAlpine, arrived, Molony described Hite and told him to look for her.
Hite dropped the backpack in a nearby yard and then hid in another house. A resident of that house found her and told McAlpine, who was canvassing the area. McAlpine notified Molony, who went to the house. According to Molony, Hite was arrested for " tampering with physical evidence and interfering." In the meantime, a resident of the house where Hite had dropped the backpack found it and told another officer who had arrived to assist. That officer told McAlpine, who retrieved the backpack and took it to Molony. Defendant said that the backpack was his.
Molony then talked to Hite, who had been placed in the back of another officer's patrol car. He asked her why she had taken the backpack. She answered that " she thought there were illegal things in the backpack and that's why she took it and tried to hide it."
Molony concluded that the backpack was defendant's and that he was " going to take it with him to jail because [defendant] was under arrest and he was going to jail so the backpack had to be inventoried." Molony testified at the suppression hearing that, following the Eugene Police Department's inventory
policy, he " opened the backpack to inventory it for dangerous weapons, explosives, hazardous materials, things of that nature. Perishable items that can't be stored in the lockers at the jail." According to Molony, because of the backpack's size, " it would have been stored in the outside metal lockers in the jail inside the secure storage."
When Molony opened the main pouch of the backpack, he saw photo identification cards for different people and other documents that he suspected were evidence of [266 Or.App. 716] identity theft. Because he knew that Detective Willis was seeking defendant in connection with identity theft, he contacted Willis and told him that he might be interested in the backpack's contents. Molony then finished checking the backpack for dangerous items.
When Willis arrived at the scene, he also looked through the backpack in order to " ma[k]e sure there was nothing dangerous in it" before putting it in his car. He looked in every compartment of the backpack and opened and thumbed through notebooks that were in it. Like Molony, he saw identification cards that did not belong to defendant. Willis took the backpack to the police station, where he emptied it and documented everything that was in it. There were a number of items with Gary Walker's name on them, including a checkbook, a debit card, a letter from Wells Fargo Bank rejecting an application to open a bank account, a promissory note for a student loan that had Walker's driver's license number on it, and a forged driver's license with defendant's picture and address but Walker's name and license number. Willis also found another check written by Clyde Green that had been processed by Green's bank. ...