State v. Hewitt

300 Or.App. 792

454 P.3d 830

STATE of Oregon, Plaintiff-Respondent,

v.Shane William HEWITT, Defendant-Appellant.

A165988 (Control)

A165987

Court of Appeals of Oregon.

Argued and submitted June 20, 2019.

November 27, 2019

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services, argued the cause and filed the brief for appellant.

Benjamin Gutman, Solicitor General, argued the cause for respondent. Also on the brief was Ellen F. Rosenblum, Attorney General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Defendant appeals from judgments in two cases, consolidated on appeal. In the first case, Case No. 17CR13809, defendant appeals from a judgment of conviction for supplying contraband, ORS 162.185. In the second, Case No. 15CR1493, defendant appeals from a supplemental judgment revoking defendant’s probation on a coercion conviction. Defendant assigns error to the trial court’s denial of his motion to suppress evidence discovered during an inventory of defendant’s property at the Malheur County Jail. The discovery of that evidence resulted in defendant’s supplying contraband charge in Case No. 17CR13809. Defendant also argues that, because defendant’s conviction in Case No. 17CR13809 formed, in part, the basis for the trial court’s decision to revoke defendant’s probation in Case No. 15CR1493, we should reverse the supplemental judgment revoking probation and remand for further proceedings in that case. We conclude that, because the deputy adhered to and acted within the scope of the Malheur County Jail inventory policy, the trial court did not err in denying defendant’s motion to suppress evidence. We therefore affirm both judgments.

We review the trial court’s denial of defendant’s motion to suppress for errors of law. We are bound by the court’s findings of fact provided that there is constitutionally sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We state the facts in light of that standard.

Defendant was convicted of coercion on December 23, 2015, and was sentenced to 36 months of supervised probation in that case. On February 21, 2017, defendant reported to the Malheur County Community Corrections office where he was arrested by his probation officer for alleged probation violations. Defendant was then transported to the Malheur County Jail, where Deputy Butler of the Malheur County Sheriff’s Office initiated the intake process.

As part of that process, Butler conducted an inventory of the clothing and personal property that defendant brought into the jail. After taking defendant’s property and listing that property on an inmate property form, Butler gave the form to defendant to sign. The form listed a number of items, including a black jacket. Defendant signed the form. Butler then left defendant’s property in the booking area while he attended to other matters. Several hours later, Butler resumed handling defendant’s property in order to prepare the property for storage and hang defendant’s jacket. At that point, Butler felt something inside of the jacket’s left inner pocket that he had not felt before, because, according to Butler, it had likely been lodged in the corner of the pocket or possibly felt like lint. Because Butler believed the item might be valuable, he reached into the jacket pocket and retrieved a clear plastic baggie that contained a crystalline substance. Butler seized the baggie and subsequently tested it. The substance tested positive for methamphetamine.

As a result of Butler’s discovery, defendant was charged with supplying contraband. Defendant moved to suppress the evidence, arguing that the inventory was unlawful because Butler deviated from the inventory policy when he examined the contents of defendant’s jacket pocket several hours after defendant signed the inmate property form. The trial court denied defendant’s motion to suppress, concluding that Butler had adhered to the specified procedures in the inventory policy when he pulled the baggie of methamphetamine from defendant’s jacket pocket. Defendant proceeded to trial, and he was convicted. At a subsequent probation violation hearing, defendant’s probation was revoked, in part due to defendant’s new conviction for supplying contraband.

On appeal, defendant assigns error to the trial court’s denial of his motion to suppress the evidence discovered during the inventory. Defendant renews his contention that Butler deviated from the inventory policy by examining the contents of defendant’s pocket after taking and inventorying defendant’s property on an inmate property form, obtaining defendant’s signature on that form, and then leaving defendant’s property unattended for several hours. In response, the state argues that the trial court correctly concluded that Butler did not deviate from the inventory policy in this case, because the policy did not preclude Butler from handling the property or examining the item in defendant’s pocket after defendant signed the property form.

Defendant also asserts, for the first time on appeal, two additional arguments: that Butler deviated from the policy by hanging defendant’s jacket instead of storing it in a plastic bin as the policy directs and that the inventory policy is overbroad in violation of Article I, section 9, of the Oregon Constitution. The state responds that defendant’s additional arguments are unpreserved. Because the trial court never had an opportunity to respond to the issues raised by those arguments, we agree and decline to address them. Defendant also argues that, because the policy is overbroad in violation of Article I, section 9, the trial court committed plain error by failing to grant defendant’s motion to suppress on the basis of that argument. We reject defendant’s plain-error argument without further written discussion.

Our decision here is limited in scope. Because we do not address defendant’s unpreserved arguments, we do not decide whether the policy is unconstitutionally overbroad. Nor do we determine whether the policy is itself improper or invalid for other constitutional reasons that were not raised on appeal, such as the amount of discretion granted to the deputies.¹ The sole issue we resolve is whether Butler deviated or adhered to the applicable inventory policy when, after obtaining defendant’s signature on the property form, he left defendant’s items of personal property for several hours and then examined an item in defendant’s pocket while preparing the property for storage.

Article I, section 9, prohibits unreasonable searches. A warrantless search is per se unreasonable unless it falls within one of the recognized exceptions to the warrant requirement. State v. Connally , 339 Or. 583, 587, 125 P.3d 1254 (2005). One such exception allows for the administrative "inventory" of a person’s property in law enforcement custody, typically carried out when police impound a vehicle, or when a person is being booked into a custodial facility. State v. Hite , 266 Or. App. 710, 719, 338 P.3d 803 (2014). In accordance with a valid inventory policy, law enforcement officers inventory a person’s property or effects "to protect the owner’s property, to reduce the likelihood of false claims against the police, and to protect the safety of the officers." Connally , 339 Or. at 587, 125 P.3d 1254. The purpose of an inventory is not to discover evidence of a crime. Id.

To fall within the recognized exception, "a lawful inventory must satisfy three requirements." State v. Stinstrom , 261 Or. App. 186, 190, 322 P.3d 1076 (2014). First, the state must have lawful custody of the property to be inventoried. Id. (citing State v. Atkinson , 298 Or. 1, 8-9, 688 P.2d 832 (1984) ). Second, the inventory "must be conducted pursuant to a properly authorized administrative program, designed and systematically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory." Atkinson , 298 Or. at 10, 688 P.2d 832. Lastly, the law enforcement person conducting the inventory must not deviate from the authorized policy or procedure. Id.

Defendant’s argument challenges only whether the inventory conducted in this case satisfied the third requirement—that is, whether Butler adhered to the Malheur County Sheriff’s Office inventory policy in carrying out the inventory of defendant’s property. Many of our cases addressing that requirement focus on whether the applicable inventory policy authorized the officer to open a particular type of closed container, which is also not at issue here. See, e.g. , State v. Salkoski , 299 Or. App. 180, 184-85, 448 P.3d 718 (2019) (inventory policy permitting officer to open containers "designed for or likely to contain money or small valuables" authorized officer’s opening of backpack); State v. Keady , 236 Or. App. 530, 534, 237 P.3d 885 (2010) (inventory policy that directed officer to open only containers "designed to hold valuables" did not authorize officer’s opening of "fish oil capsule container").

Fewer cases address the issues raised by defendant, but State v. Brown , 229 Or. App. 294, 211 P.3d 315 (2009), and State v. Rowell , 251 Or. App. 463, 283 P.3d 454, rev. den. , 353 Or. 127, 295 P.3d 640 (2012), provide some relevant guidance. In Brown , a deputy arrested the defendant and subsequently searched his pockets, where the officer found incriminating evidence. We held that the deputy in that case acted consistently with the applicable inventory policy, which authorized the police to conduct "[i]nventories of the personal property" of an arrestee, and to "remove all items of personal property from the clothing worn by [the arrestee]." 229 Or. App. at 303-04, 211 P.3d 315. In Rowell , we determined that the officer’s search of a laptop bag did not adhere to the controlling inventory policy. There, the officer opened and examined the contents of the...