State v. Corey ( 1993 )

EDMONDS, J.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992(4). He assigns as error the denial of his motion to suppress evidence seized from the truck that he was driving. We affirm.

The trial court found that defendant was slumped over in a parked truck when the officer approached him. When the officer learned defendant’s identity, she arrested him on an outstanding warrant for a parole violation. The truck was legally parked on a public street. A records check showed that the truck was registered to a name different than defendant’s. Defendant told the officer that the truck belonged to his mother and that he used it in construction work. The officer could see tools in plain view in the back of the truck, which could not be secured if the truck was left on the street. Defendant said that he would like his mother to pick up the truck rather than to have it towed. Initially, the officer thought she might leave the vehicle parked where it was. However, she was concerned about the items in the back of the truck, which she believed were of value. Because there was no way to secure the items in the back of the truck, she decided to have the truck towed. She then began to inventory the truck pursuant to department procedure. During the course of the inventory, she opened the door to see if there was a stereo. When she did, she saw in plain view, some balloons which, based on her experience, she believed contained tar heroin. She seized the balloons, which are the subject of defendant’s motion to suppress.

At the hearing on the motion to suppress, defendant argued that the opening of the cab door to see if there were valuables in the cab was an unlawful search. He asserts that, because he had requested that his mother be allowed to pick up the truck, the officer was required under the applicable City of Portland ordinance not to have the vehicle towed.¹ Therefore, he reasons that the officer was without authority to open the door. In response to that argument, the trial court concluded:

“There was [sic] miscellaneous items of tools that she could see that were in plain view and [defendant] said[,] ‘let my mother come and get the rig.’ She doesn’t have to do that. The rig has been sitting there, by her testimony, prior to her shift, her coming on shift. She comes on shift. To leave it there any further, not knowing anything about the mother’s whereabouts or how long it’s going to take the mother to get there, the inventory remains vulnerable, if you will. And so for her to secure it and expedite the matter — she’s not required to sit there and wait for the mother or to call the mother. So they acted reasonable [sic] in that circumstance. And when — she didn’t have to disturb anything after he exited the vehicle and was secured, the narcotic was in plain view, as far as I’m concerned. And I find that the search was reasonable under the circumstances.”

The state argues that there were no reasonable alternatives to impoundment and that the requirements of the ordinance were met. Alternatively, it argues that the ordinance was irrelevant, because the tar heroin was in plain view on the seat of the vehicle. In evaluating whether the search of the cab was justified, we are bound by the trial court’s findings of historical fact if evidence supports them. If the trial court did not make findings on all pertinent facts, and there is evidence from which those facts could be decided more than one way, we presume that the trial court found them in a manner consistent with its ultimate conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). When our task concerning the issues of fact is completed, then our role is to determine whether the trial court correctly applied the law. State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991).

The officer’s act of opening the truck door and exposing the contents to view was a “search” under Article I, section 9, of the Oregon Constitution. State v. Rhodes, 315 Or 191, 196, 843 P2d 927 (1992). However, if certain requirements are met, an inventory of the contents of an automobile is not an unreasonable search under Article I, section 9. One of those requirements is that the car must have been lawfully impounded. State v. Atkinson, 298 Or 1, 8, 688 P2d 832 (1984). Implicit in the trial court’s findings is the fact that the officer had decided to impound defendant’s truck by having it towed, and that her opening of the truck door was an inventory pursuant to that decision. The applicable ordinance provides that a vehicle may be impounded when there is “no other reasonable disposition of the vehicle * * * available.” The issue, as framed by defendant, is whether there was any reasonable disposition other than to impound the truck, based on the facts as the officer knew them at the time of her decision to tow. See Statev. Gaunce, 114 Or App 190, 194, 834 P2d 512, rev den 315 Or 271 (1992).

The other alternative available to the officer was to leave the truck parked on a public street with the tools unsecured in the back. The officer testified that she believed defendant when “he said it was mom’s [car] who, as I recall, lived out in Rhododendron.” We take judicial notice of the fact that Rhododendron is a community in Clackamas County approximately 35 miles from the City of Portland, where defendant was arrested. We agree with the trial court’s conclusion that, in the light of the fact that the officer would have had to guard the vehicle until defendant’s mother arrived, there was no other reasonable alternative to having the truck towed.

The dissent would hold that, because she did not make an attempt to call defendant’s mother to come and get the truck, and because there is no evidence about the length of time that it would have taken for the mother to have removed the truck, the officer did not comply with the ordinance. That argument implies that the ordinance placed on the officer a responsibility to investigate whether defendant’s mother could pick up the truck within a reasonable time before making the decision to tow. We see nothing in the language of the ordinance that requires an officer to investigate beyond the facts of which she was aware at the time of her decision. Based on the information that defendant had given her, the officer was entitled to infer that the time that she would have been required to wait for the mother to come to Portland would have been considerable. Presumably, her patrol duties required her to be at places other than parked along side the truck for whatever period of time it would take for the mother to arrive. Nothing in the ordinance required the officer to wait until the mother arrived.

The dissent also says that a reasonable alternative would have been to leave the truck on the street. That would have resulted in the contents in the back of the truck being subjected to theft. Moreover, if the dissent is correct, there would always be a “reasonable alternative” to impoundment under the ordinance, and the provision in the ordinance allowing impoundment in the absence of a reasonable alternative would be meaningless. The dissent’s assertion also ignores the potential civil liability of the city and the social harm arising from the potential commission of another crime resulting from the city’s conduct if the contents were stolen. Based on the information that the officer had, we hold that “no other reasonable disposition of the truck was available,” and that the impoundment was lawful.

Defendant’s other arguments do not require discussion.

Affirmed.

1 PCC § 16.040.020 provides, in part:

“(a) Authority to tow. Any vehicle found on any street * * * may be towed, upon the order of a City officer or employee, and taken to a storage area designated by the City, and held at the expense of the owner or person entitled to possession thereof, when:

“(7) The vehicle is in possession of a person taken into custody by a law enforcement agency;

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“(b) Towing without prior notice. Provided further, that vehicles may be towed, pursuant to Subsection (a) above, without prior notice, only under one or more of the following circumstances;

ce* * * * *

“(7) The vehicle was in possession of a person taken into custody by a law enforcement officer and no other reasonable disposition of the vehicle was availablef.]”