State v. Steele

290 Or.App. 675

414 P.3d 458

STATE of Oregon, Plaintiff-Respondent,

v.Anthony Scott STEELE, Defendant-Appellant.

A160415

Court of Appeals of Oregon.

Argued and submitted May 11, 2017.

March 7, 2018

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, Office 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.^*

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 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 bindle 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."

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]ll 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."

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 search of defendant's belongings at the Grant County Jail pursuant to the Grant County Jail's inventory policy[.]"

On appeal, defendant assigns error to the trial court's denial of his motion to suppress the seized methamphetamine and renews his argument that "[t]he admission of the methamphetamine evidence was not justified by the inevitable discovery doctrine because the Grant County Jail inventory policy impermissibly authorizes searches of all closed containers." Defendant argues that the combination of the excerpts of the jail's inventory policy (B-103 and B-301) that were entered into evidence and Derosier's testimony that deputies will open and search "all closed containers pursuant to [that] policy" establishes that the inventory policy is unconstitutionally overbroad. Moreover, defendant contends that, "[e]ven though the search in this case did not involve the search of a closed container, the state cannot rely on an unconstitutionally overbroad inventory policy to prove its theory of inevitable discovery."

The state, in response, argues for the first time on appeal that the portions of the written policy in the record say nothing about container searches and that Derosier's testimony, "[a]t most, *** shows that this particular deputy may have believed he was required to search all closed containers. That does not speak to the requirements of the policy itself." (Emphasis in original.) The state contends also for the first time on appeal that, when it seeks to rely on inevitable discovery by inventory, it need not "preemptively rebut any potential argument that the policy as a whole is unconstitutionally overbroad." According to the state, there was no reason to introduce the entire inventory policy into evidence, as it was sufficient to introduce only the portions that were relevant to its argument. The state acknowledges that the written excerpts of the jail inventory policy that it proffered do not address inspection of the contents of closed containers and that the policy may include other provisions pertaining to such searches, but asserts that, because the text of such provision(s) is not a part of this record, it would be impermissibly speculative to conclude, based on Derosier's testimony, that the inventory policy is unconstitutionally overbroad.

Importantly, the state does not contend that Derosier's testimony pertained to a different, legally distinct—and separately authorized—policy from that embodied in part in B-103 and B-301. Indeed, such a contention would be irreconcilable with Derosier's acquiescence on cross-examination with defense counsel's baseline reference to "this policy." (Emphasis added.) Thus, the state does not dispute that Derosier's testimony demonstrating unconstitutional overbreadth related to the same jail inventory policy that governed defendant's intake.

Under Article I, section 9, of the Oregon Constitution, warrantless searches are per se unreasonable, unless the search is...