and submitted May 11, 2017
County Circuit Court 1505121CR W. D. Cramer Jr., Judge.
P. Seltzer, 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
K. Contreras, Assistant Attorney General, argued the cause
for respondent. With her on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
DeVore, Presiding Judge, and Powers, Judge, and Haselton,
Senior Judge. [*]
Or.App. 676] Case Summary: Defendant appeals from a judgment
of conviction for possession of methamphetamine, entered
after a conditional guilty plea, arguing that the trial court
erred by denying his motion to suppress methamphetamine
evidence that was seized following his arrest. The trial
court concluded that the evidence was admissible because it
inevitably would have been discovered during the booking
process conducted in accordance with the jail's inventory
policy. On appeal, defendant argues that the inventory policy
is unconstitutionally overbroad because it authorized the
search of all closed containers and that-even though the
evidence at issue was not in a closed container-that defect
rendered the policy as a whole improperly promulgated and,
thus, invalid as a basis of purported inevitable discovery.
The trial court erred in denying defendant's motion to
suppress the methamphetamine evidence. On this record, the
inventory policy was overbroad because it authorized the
search of all closed containers regardless of whether they
were likely to contain valuables.
Or.App. 677] POWERS, J.
appeals from a judgment of conviction for possession of
methamphetamine, ORS 475.894, entered after a conditional
guilty plea, arguing that the trial court erred by denying
his motion to suppress methamphetamine evidence that was
seized following his arrest. The trial court concluded that,
although the search and seizure was not lawfully incident to
defendant's arrest for harassment, the evidence was
nevertheless admissible because it inevitably would have been
discovered during the booking process conducted in accordance
with the jail's inventory policy. Defendant argues that
the inventory policy at issue is unconstitutionally overbroad
because it authorized, without qualification, the search of
all closed containers and that-even though the evidence at
issue was not in a closed container-that defect rendered the
policy as a whole improperly promulgated and, thus, invalid
as a basis of purported inevitable discovery. The state
contends that the trial court correctly concluded that the
drug evidence inevitably would have been discovered by
operation of the portions of the written inventory policy
that it submitted into evidence and that would have been
utilized in conducting an inventory of defendant at the jail.
On this record, we agree with defendant and, accordingly,
reverse and remand.
review the trial court's denial of defendant's motion
to suppress for legal error. State v. Ehly, 317 Or.
66, 75, 854 P.2d 421 (1993). We are bound by the trial
court's factual findings if there is any constitutionally
sufficient evidence in the record to support them.
Id. To the extent that the trial court did not make
express factual findings and there is evidence from which the
facts could be decided in more than one way, we will presume
that the court found the facts in a manner consistent with
its ultimate conclusion. State v. Maciel-Figueroa,
361 Or. 163, 166, 389 P.3d 1121 (2017). We describe the facts
in a manner consistent with that standard.
State Police (OSP) Trooper Weaver received a report from
Grant County Dispatch indicating that the Crook County
Sheriff's Office had probable cause to arrest defendant
for harassment. Weaver then initiated a stop [290 Or.App.
678] of a truck in which defendant was a passenger. Weaver
ordered defendant to step out of the vehicle, placed
defendant in handcuffs, and explained to defendant that he
had probable cause to arrest defendant for harassment in
Crook County. Weaver then asked defendant if he had
"[a]nything sharp, anything that would poke me, stab me,
hurt me?" Defendant responded, "I hope not,
man." Weaver then asked defendant if he had any needles
on him, to which defendant eventually replied,
"Don't do needles, man. You got nothing to worry
about." Weaver then conducted a search of defendant.
During the search, Weaver shined his flashlight down into
defendant's coin pocket and noticed that something was
inside. He used a "pen or something" to retrieve
what turned out to be a small, clear plastic bag containing a
bin-die of methamphetamine.
transported defendant to the Grant County Jail and
transferred custody of defendant to Deputy Derosier, the
intake corrections deputy. According to Weaver, Derosier
conducts his own search at the jail "just to make sure
that there's no contraband on them before they bring them
into the jail."
was charged with one count of unlawful possession of
methamphetamine, ORS 475.894. Defendant filed a motion to
suppress, among other things, the methamphetamine evidence
found during the search of defendant's coin pocket,
arguing that the warrantless search did not fall within any
of the exceptions to the warrant requirement. The state, in its
written response, argued that the discovery of the
methamphetamine was in accordance with an OSP policy of
searching arrestees before placing them in police vehicles.
The state also argued that, even if the search of defendant
before being transported to the jail was not a lawful
inventory, "the drugs inside defendant's coin pocket
would inevitably have been discovered when the jail
inventoried the defendant during the booking process."
Or.App. 679] At the hearing on the motion to suppress, the
state, through the testimony of Derosier, introduced as
evidence two written excerpts of the Grant County Jail's
inventory policy, labeled B-103 and B-301. The excerpt
labeled B-103 provides, in part, that "[a] 11 inmates
will be pat searched or frisked searched * * * immediately
upon entering the facility." The excerpt labeled B-301
provides, in part, that during inventory, the booking deputy
or the arresting officer shall "remov[e] any items found
from pockets, etc."
the introduction of those excerpts of the inventory policy,
defense counsel asked Derosier a series of questions
elaborating on the content of the jail's inventory
"[DEFENSE COUNSEL]: And under this policy, you said you
would certainly turn, you know, pants pockets inside out, I
"[DEFENSE COUNSEL]: Do you search all closed containers
pursuant to this policy?
"[DEPUTY]: If they stay. If they stay they are
thoroughly searched. They also take the clothes from them,
and then they are searched again.
"[DEFENSE COUNSEL]: Okay. So if there was, say, a film
canister or something in a pocket, you would open that and
look in it?
closing, the state focused its argument on the doctrine of
inevitable discovery, arguing that, "[i]f the court
finds that [the search prior to transport to jail] wasn't
permissible, then the evidence would have been found
inevitably by the jail."
in response, argued that, "even if it was an authorized
policy, *** it's an unlawful policy, it's overbroad
under both the [state and federal constitutions], because it
does allow things such as searches of closed containers,
according to Deputy Derosier's testimony."
Or.App. 680] The trial court denied defendant's motion to
suppress the seized methamphetamine. As an initial matter, the
trial court concluded that the search was not justified under
either the officer safety exception or the search incident to
arrest exception to the warrant requirement, as the officer
was not "searching for evidence of the crime for which
defendant was arrested, i.e., harassment." However, the
court also concluded that "the methamphetamine would
have been inevitably discovered upon the ...