and Submitted February 21, 2017
County Circuit Court C150351CR; Eric Butterfeld, Judge.
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
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.
Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn,
Judge pro tempore.
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
of attorney fees reversed; otherwise affirmed.
J., pro tempore
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. 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.
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.
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.
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
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 ...