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State v. Steele

Court of Appeals of Oregon

March 7, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ANTHONY SCOTT STEELE, Defendant-Appellant.

          Argued and submitted May 11, 2017

         Grant County Circuit Court 1505121CR W. D. Cramer Jr., Judge.

          Emily 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 Services.

          Jamie 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 General.

          Before DeVore, Presiding Judge, and Powers, Judge, and Haselton, Senior Judge. [*]

         [290 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.

         Held: 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.

         Reversed and remanded.

         [290 Or.App. 677] POWERS, J.

         Defendant 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.

         We 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.

         Oregon 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.

         Weaver 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."

         Defendant 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.[1] 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."

         [290 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."

         Following 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 policy.

"[DEFENSE COUNSEL]: And under this policy, you said you would certainly turn, you know, pants pockets inside out, I believe?
"[DEPUTY]: Yes.
"[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?
"[DEPUTY]: Absolutely."

         At 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."

         Defendant, 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."

         [290 Or.App. 680] The trial court denied defendant's motion to suppress the seized methamphetamine.[2] 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 ...


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