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State v. Towai

Court of Appeals of Oregon

April 19, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JETHRO JEFFREY KILELEMAN TOWAI, Defendant-Appellant.

          Argued and Submitted February 21, 2017

         Washington County Circuit Court C150351CR; Eric Butterfeld, Judge.

          Sara Werboff, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn, Judge pro tempore.

         Case Summary: Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, and interfering with a peace officer, ORS 162.247. Defendant assigns error to the trial court's denial of his motion to suppress the evidence that officers discovered when he was arrested. Defendant argues that the evidence was discovered in violation of his rights under Article I, section 9, of the Oregon Constitution. Defendant also contends that the trial court plainly erred when it imposed attorney fees because it did so without any evidence of his ability to pay. Held: The trial court did not err when it denied defendant's motion to suppress. The state presented sufficient evidence to satisfy its burden to prove that the evidence was discovered pursuant to a valid inventory of defendant's belongings. However, the trial court plainly erred when it imposed attorney fees without evidence of defendant's ability to pay and it is appropriate for the Court of Appeals to exercise discretion to correct that error.

         Award of attorney fees reversed; otherwise affirmed.

          FLYNN, J., pro tempore

         Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, and interfering with a peace officer, ORS 162.247, raising two assignments of error. First, defendant assigns error to the trial court's denial of his motion to suppress evidence that officers discovered inside of a backpack that defendant was carrying, after they took him into custody for interfering with a peace officer.[1] Defendant argues that the officers violated his rights under Article I, section 9, of the Oregon Constitution, when they looked in his backpack. The state argues that the officers discovered the evidence pursuant to a valid inventory and, alternatively, that the officers already possessed probable cause to arrest defendant for possession of methamphetamine and lawfully searched the backpack incident to that arrest. Second, defendant asserts that the trial court plainly erred when it imposed $629 in attorney fees and that we should exercise our discretion to correct that error. We reject defendant's first assignment of error because we conclude that the officers discovered the methamphetamine pursuant to a valid inventory of defendant's belongings. However, we agree with defendant that the imposition of attorney fees was plain error, and we exercise our discretion to correct it.

         The pertinent facts are not in dispute. Two Tigard Police Officers were conducting surveillance on a suspected drug house around midnight when they saw several people riding bicycles in front of the house. Defendant was riding one of the bicycles and had no front light, which one of the officers described as a traffic violation. That officer, Nunley, pulled up behind defendant in his patrol car and activated the car's overhead lights, at which point defendant looked at him and continued to ride away, turning down a narrow path where the patrol car could not follow. Unbeknownst to defendant, he was riding directly toward the second officer, Swain, who "escorted him to the ground." When Nunley arrived, the officers placed defendant in handcuffs and walked him to the patrol car, along with a backpack that defendant had with him. Nunley patted defendant down to check for weapons and found a glass pipe of the type used for smoking methamphetamine. Nunley then looked inside the backpack and found a "little plastic thing to hold change." Nunley opened that container and found a bag full of a crystalline substance that later tested positive for methamphetamine.

         At the hearing on the motion to suppress, Nunley testified that he looked through defendant's backpack and opened the change holder because he was required to inventory defendant's belongings before taking him to jail. When defense counsel asked whether Nunley could "reference" an "applicable code that warrants this-this type of inventory, " Nunley responded that the provision "is in our municipal code and I don't know the numbers at the top of my head but I have read it." The state introduced as exhibits the text of multiple inventory policies, including the Tigard Municipal Code provision regarding "Authority to Inventory the Personal Effects of a Person Taken into Custody." Nunley also testified that he looked in the backpack because he had found the glass pipe. Thus, the state argued, as an alternative theory, that the evidence was discovered pursuant to a lawful search incident to arrest for possession of methamphetamine. The trial court denied defendant's motion without elaborating on the reasons for the denial.

         After a stipulated facts bench trial, the court found defendant guilty of unlawful possession of methamphetamine, ORS 475.894, and interfering with a peace officer, ORS 162.247. Defendant was convicted and sentenced to 18 months of formal probation. The court also ordered defendant to pay $629 in attorney fees.

         On appeal, defendant does not dispute that the initial stop was lawful or that the officers had probable cause when they arrested him for interfering with a peace officer. Nor does defendant argue that opening the small change holder exceeded the scope of a lawful inventory of defendant's backpack. Instead, he argues that the state failed to ...


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