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State v. Fulmer

Court of Appeals of Oregon

February 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
TAMARA LOUISE FULMER, Defendant-Appellant.

          Argued and submitted December 5, 2017

          Washington County Circuit Court 16CR14039; Oscar Garcia, Judge.

          Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the brief 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. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. During a lawful traffic stop, a police officer decided to impound defendant's car. When the officer asked defendant to step out of the car for the inventory, she did so, leaving her purse on the passenger seat. A second officer inventoried the car and its contents, and he found meth-amphetamine and needles inside defendant's purse. Defendant, who otherwise would have been free to leave, was arrested and charged. Before trial, she moved to suppress the evidence from her purse and any derivative evidence, based on Article I, section 9, of the Oregon Constitution. The trial court denied the motion. Defendant challenges that ruling on appeal. First, she argues that the officers unlawfully seized her purse before the inventory began, because a reasonable person in her situation would believe that she was not permitted to remove items from the car. Second, she argues that the officers were constitutionally required [296 Or.App. 62] to ask her whether she wanted to remove any personal items from the car before the inventory began. Held: The trial court did not err in denying the motion to suppress. As to the first argument, the officers' conduct in advance of the inventory did not constitute a seizure of defendant's purse. As to the second argument, although it might be good policy for officers to ask a vehicle owner who is present and not under arrest whether she would like to remove any items from a vehicle that is being impounded before the inventory begins, doing so is not constitutionally required.

         Affirmed.

         [296 Or.App. 63] AOYAGI, J.

         Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, challenging the trial court's denial of her motion to suppress evidence obtained during a vehicle inventory. In the course of a lawful traffic stop, a police officer decided to impound defendant's car. When the officer asked defendant to step out of the car for the inventory, she did so, leaving her purse on the passenger seat. In accordance with the police department's inventory policy, an officer inventoried defendant's purse, including the contents of a wallet in the purse. The officer found methamphetamine and needles in the wallet. Defendant was arrested and charged. Before trial, she moved to suppress the evidence found in her purse along with any derivative evidence. The trial court denied the motion, and defendant was subsequently convicted. On appeal, we conclude that the trial court did not err in denying defendant's motion to suppress and, accordingly, affirm.

         I. STANDARD OF REVIEW

         We review the trial court's legal conclusions for legal error. State v. Bean, 150 Or.App. 223, 225, 946 P.2d 292 (1997), rev den, 327 Or. 448 (1998). As to the facts, we are bound by the trial court's express and implicit findings so long as they are supported by the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We state the facts in accordance with that standard.

         II. FACTS

         While on patrol one night, Officer Delepine of the Hillsboro Police Department saw defendant driving with an expired registration tag on her license plate. Delepine activated his overhead lights to initiate a traffic stop, and defendant pulled to the side of the road. Delepine approached defendant and advised her of the reason for the stop. When Delepine asked her for her driver's license and proof of insurance, defendant admitted that her registration was expired, that her driver's license was suspended, and that she did not have insurance. Delepine used his in-vehicle computer to confirm that information. He then began writing a citation. [296 Or.App. 64] Because he intended to impound the car, he also called for a second officer to assist.

         Delepine was still writing the citation when the second officer, Weed, arrived. After telling Weed that he intended to impound defendant's car, Delepine approached defendant, who was still in the car. Delepine told her in a conversational tone that he "was going to be impounding her vehicle for the reasons of her license being suspended, no insurance, and it being a hazard." (Delepine considered the car to be a hazard because it was blocking the bike lane.) Weed stood by the passenger door as Delepine spoke to defendant on the driver's side. Delepine asked defendant "to step out of the vehicle so that Officer Weed [could] conduct an inventory." He "asked her" and "didn't order her," although defendant did not have the option to stay in the car. Delepine did not say anything to defendant about taking items out of the car-he did not tell her to take items with her, nor did he tell her to leave items in the car. Delepine explained, "Generally, I just have them get out of the car. Most of the time after I tell someone that I'm towing their car, they grab * * * those things that they want."

         Defendant got out of the car. She brought her cell phone and a pack of cigarettes with her. Defendant left her purse on the passenger seat, and she did not ask to remove the purse or any other property from the car. Once out of the car, defendant stood with Delepine near the hood of his vehicle. Delepine requested defendant's current address for the citation. He asked defendant whether there were any valuable or dangerous items in the car, as relevant to the inventory, and she said no. Then he inquired about defendant getting a ride to leave, and she said that she would call someone.

         Meanwhile, Weed had begun the inventory of defendant's car. He conducted the inventory in accordance with the Hillsboro Police Department's inventory policy. Upon taking "constructive custody of a vehicle prior to impoundment," the policy requires an officer to inventory, among other things, "all personal property and the contents of open containers found" in the vehicle's passenger compartment. The policy does not allow the opening of "closed containers," but it expressly excludes "item[s] designed for carrying [296 Or.App. 65] money and/or small valuables"-such as closed wallets, coin purses, purses, and waist packs-from the definition of "closed containers."[1] In other words, the policy provides for items like purses and wallets to be inventoried, including their contents.

         In this case, the first item that Weed examined during the inventory was defendant's purse, which was on the passenger seat. "[I]t was the first thing that [he] looked in because it was right there." Inside a wallet in the purse, Weed found needles and a small bag of methamphetamine. Weed directed Delepine to arrest defendant, and Delepine did so. Defendant then admitted to Delepine that she had "dirty rigs" (which Weed understood to mean used needles) and that she was a methamphetamine user.

         The state charged defendant with one count of unlawful possession of methamphetamine. Defendant moved to suppress the evidence from her purse and any derivative evidence, arguing, among other things, that the officers had unlawfully seized her purse because they "did not give [her] an opportunity to take her belongings" from her car before the inventory began. After a hearing at which Delepine, Weed, and defendant testified, the trial court denied defendant's motion. The court concluded that the stop had been lawful, that the decision to impound the car had been lawful, and that the inventory had been lawfully conducted in accordance with the department's policy. As for defendant's purse, the court found that defendant had never asked to remove it and that, although the officers could have said something as a "courtesy," they were not legally required to ask defendant whether she wanted to take items with her. After the denial of her motion to suppress, defendant was tried and convicted.

         III. ANALYSIS

         In her sole assignment of error on appeal, defendant challenges the denial of her motion to suppress. Defendant [296 Or.App. 66] does not dispute that the traffic stop was lawful, that the officer's decision to impound her vehicle was lawful, that the Hillsboro Police Department's inventory policy is lawful, or that the officers complied with the inventory policy[2]Nonetheless, she argues that the search of her purse violated Article I, section 9, of the Oregon Constitution. Defendant posits two alternative legal theories. First, she argues that, under the totality of circumstances, a reasonable person in her position would have believed that she could not remove items from the car. Second, she argues that the officers had an affirmative duty to ask her if she wanted to remove items from the car before impoundment and to allow her a reasonable opportunity to do so. In response, the state rejects defendant's view of Article I, section 9, and argues that the officers had no obligation to ask defendant whether she wanted to remove items from the car.

         We begin our analysis with a brief overview of the law relating to police inventories of impounded vehicles. We then address each of defendant's arguments in turn, beginning with ...


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