and submitted March 16, 2016
County Circuit Court C132154CR; Eric Butterfeld, Judge.
Fujita Munsey, 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
Jonathan Zunkel-deCoursey, Certifed Law Student, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Paul L. Smith, Deputy Solicitor General,
and Patrick M. Ebbett, Assistant Attorney General.
Garrett, Presiding Judge, and Shorr, Judge, and Haselton,
Senior Judge. [*]
Or.App. 517] Case Summary: Defendant appeals a judgment
convicting him of one count of unlawful possession of
methamphetamine. ORS 475.894. On appeal, defendant assigns
error to the trial court's denial of his motion to
suppress evidence found in a folded piece of paper in his
wallet during an inventory of his possessions conducted after
his arrest. Defendant contends that the trial court
erroneously concluded that the folded paper revealed its
contents to the offcer such that opening it was not a search
that required a warrant or an exception to the warrant
requirement under Article I, section 9, of the Oregon
Constitution. Held: The trial court erred in denying
defendant's motion to suppress. The folded paper did not
reveal its contents to the offcer. The state did not provide
evidence that folded paper is a container that is invariably
used to store and transport methamphet-amine, and the
contents of the folded paper were not revealed to the offcer
by the paper's feel.
Or.App. 518] SHORR, J.
appeals a judgment convicting him of one count of unlawful
possession of methamphetamine. ORS 475.894. After being
arrested on a probation violation, an officer found
methamphetamine in a folded piece of paper in defendant's
wallet during an inventory of defendant's possessions. On
appeal, defendant assigns error to the trial court's
denial of his motion to suppress the evidence that the
officer found in that piece of paper. Specifically, defendant
argues that the folded paper was not a container that by its
nature revealed its contents to the officer and, while the
officer may have had probable cause to believe that the paper
contained methamphetamine, opening the paper was a search
under Article I, section 9, of the Oregon Constitution.
Accordingly, the officer needed either a warrant or a
well-established exception to the warrant requirement-both of
which, the state concedes, are lacking in this case-to
justify his actions. We agree with defendant that the folded
paper did not by its very nature reveal its contents.
Therefore, because the officer opened the paper and conducted
that search without a warrant or under an exception to the
warrant requirement, we reverse and remand.
bound by the trial court's findings of historical fact
that are supported by constitutionally sufficient evidence in
the record, and, if findings of historical facts are not made
on all pertinent issues and there is evidence from which such
facts could be decided in more than one way, we will presume
that the facts were decided in a manner consistent with the
court's ultimate conclusion. State v. Ehly, 317
Or. 66, 75, 854 P.2d 421 (1993). We recite the following
undisputed facts consistently with that standard.
was arrested by Beaverton Police Officer Andler for a
probation violation for consuming alcohol. After Andler
arrested defendant, Andler performed a search incident to
arrest during which he removed a wallet from defendant's
pocket. Andler did not search the wallet at that time. After
Andler's search was complete, he transported defendant to
the Beaverton Police Department where he processed defendant
following the department's normal procedures for
processing a defendant after an arrest.
Or.App. 519] When Andler was processing defendant, he
undertook an inventory of defendant's property pursuant
to the Beaverton Police Department's inventory policy.
Under that policy, officers are required to conduct an
inspection of defendants' wallets to document anything of
value inside. However, as the state stipulated at a
suppression hearing on the matter, that policy does not allow
officers to open closed containers, including folded pieces
of paper, found in wallets. Pursuant to that policy, Andler
inspected defendant's wallet to inventory any valuables
opening defendant's wallet, Andler found and opened two
folded pieces of paper that appeared to contain objects. One
of those pieces of paper contained computer memory sticks.
The other piece of paper contained metham-phetamine. Based on
that discovery of methamphetamine, defendant was also then
charged with possession of methamphetamine and lodged at the
Washington County Jail.
filed a motion to suppress the evidence that Andler
discovered when he opened up the folded paper that contained
methamphetamine. In that motion, defendant argued that (1)
Andler's opening of the folded paper was not authorized
under the inventory policy; (2) that conduct constituted a
search for the purposes of Article I, section 9; and (3) that
search was unlawful in that it was undertaken without a
warrant and did not fall within any exception to the warrant
requirement. In response, the state argued that, although
Andler was not allowed to open the folded paper as part of
his inventory process, the paper, by its very nature,
revealed its contents when Andler felt it, and, ...