State v. Sevits ( 2024 )

No. 487 July 10, 2024 745
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Appellant,
v.
DUSTIN ALEXANDER SEVITS,
Defendant-Respondent.
Marion County Circuit Court
21CR25452; A178770
Daniel J. Wren, Judge.
Argued and submitted on September 18, 2023.
Timothy A. Sylwester, Assistant Attorney General,
argued the cause for appellant. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Kyle Krohn, Deputy Public Defender, argued the cause
for respondent. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
746 State v. Sevits
Cite as 333 Or App 745 (2024) 747
HELLMAN, J.
The state appeals an order granting defendant’s
motion to suppress evidence discovered during an inven-
tory of defendant’s car. In its assignment of error, the state
argues that the trial court erred when it relied on State v.
Fulmer, 366 Or 224, 460 P3d 486 (2020), and concluded that
the detectives violated Article I, section 9, of the Oregon
Constitution. Specifically, the state argues that the detec-
tives complied with Fulmer because, approximately 40 sec-
onds after they began the inventory, they asked defendant if
he wanted to remove any items. Because Article I, section 9,
as interpreted by the Supreme Court in Fulmer, required the
detectives to notify defendant that he could remove items
before they began the inventory and they failed to do so,
we conclude that the trial court did not err when it granted
defendant’s motion. Accordingly, we affirm.
“On review of an order on a suppression motion, we
review the order for legal error and are bound by the trial
court’s factual findings if there is constitutionally sufficient
evidence in the record to support them.” State v. Harrop, 296
Or App 541, 543, 439 P3d 548, rev den, 365 Or 556 (2019)
(internal quotation marks omitted).
Two detectives observed defendant commit several
traffic violations and initiated a traffic stop. The detectives
asked defendant to consent to a search of the car, and he
refused. Because defendant lacked proof of insurance, had
a suspended license, and was alone, the detectives told him
that they would tow his car. The detectives then asked
defendant to exit the car so that they could conduct an
inventory. Approximately 40 seconds after a detective began
the inventory, the other detective asked defendant, “Is there
something that you want out of the vehicle?” Defendant
responded, “No.” During the inventory, a detective found a
camera bag that contained heroin in an exterior pocket. The
detectives placed defendant under arrest and subsequently
found additional drugs and a firearm in the car.
Defendant moved to suppress any evidence found in
the car and argued, among other things, that the detectives
violated Article I, section 9, because they failed to notify him
748 State v. Sevits
that he could remove items from the car before they began
the inventory. The court granted defendant’s motion and
suppressed “all evidence flowing from this constitutional
violation,” explaining that,
“Even though the court finds that detectives acted in good
faith regarding their understanding of the law, it is not a
justification for overlooking the precedent established in
Fulmer, almost fifteen (15) months before this incident took
place. Further, the court finds that asking defendant 40+
seconds into the inventory about removing personal items
does not cure the constitutional defect.”
On appeal, the state argues that the trial court
should have denied defendant’s motion because the detec-
tives complied with Fulmer. In so arguing, the state contends
that “Fulmer is not dispositive” because the officers who con-
ducted the search that was at issue in that case never noti-
fied the defendant that she could remove items from the car,
whereas the detectives in this case “expressly advised defen-
dant that he could retrieve his property.” Alternatively, the
state argues that, even if the detectives violated Article I,
section 9, by failing to timely notify defendant that he could
remove items before the inventory, suppression of the evi-
dence was not warranted because the violation did not lead
to the discovery of the evidence. We are not persuaded.
We conclude that the trial court was correct that
Article I, section 9, required the detectives to notify defen-
dant that he could remove items before they began the
inventory. In Fulmer, the Supreme Court concluded that “an
inventory conducted without notice to the occupant who is
present that [the occupant] may remove readily retrievable
items violates Article I, section 9.” 366 Or at 236. In light of
Fulmer, we explained that
“[t]he [Supreme Court] held that, * * * before conducting an
inventory of a vehicle in a noncriminal and nonemergency
context, where vehicle occupants are present and not under
arrest, police must ‘give occupants who are present and not
under arrest notice that they may retrieve readily remov-
able personal belongings before an inventory is conducted.’ ”
State v. K. R. S., 303 Or App 500, 502, 464 P3d 481 (2020)
(quoting Fulmer, 366 Or at 234-35 (emphasis added)).
Cite as 333 Or App 745 (2024) 749
Here, the state acknowledges that defendant was
present and that the detectives had not placed him under
arrest when they began the inventory. Further, the state
acknowledges that the detectives had conducted the inven-
tory for at least 40 seconds before they asked defendant if he
wanted to remove any items. Because the detectives did not
provide defendant the constitutionally required notice before
they conducted the inventory, they violated Article I, section 9.
See id. at 503 (reversing the trial court’s denial of a motion
to suppress when the officer failed to notify the defendant
that she could remove property from the car before conduct-
ing an inventory).
Alternatively, the state argues that the evidence
should not have been suppressed because, before the detec-
tives found any incriminating evidence, they belatedly
asked defendant if he wanted anything from the vehicle
and he responded that he did not. In the state’s view, “in
this case, the illegality occur[ed] before the search that is at
issue,” and the exchange between the detective and defen-
dant means that there is no causal connection between the
illegality and the search that yielded the evidence.
Defendant contends that the state did not preserve
this alternative argument that it advances on appeal. But we
need not resolve that dispute. Even if the argument is pre-
served, it fails on the merits. The state’s position is inconsis-
tent with our understanding of Fulmer set out above. As we
have explained, the illegality occurred when the detectives
failed to give defendant the constitutionally required notice
before they began the inventory. See Fulmer, 366 Or at 237
(holding that the failure to give a defendant notice that “he
or she may retrieve personal items from the vehicle causes
the scope of the inventory to exceed the purposes that justify
the exception”). And the inventory led to the discovery of the
heroin; there was no “search” that took place independent of
the inventory. Indeed, the inventory is the only exception to
the warrant requirement on which the state relied below or
relies on appeal to justify the discovery of the heroin, which
led to defendant’s arrest and the subsequent discovery of
additional incriminating evidence. Without prior notice, the
inventory was constitutionally invalid under Fulmer. The
750 State v. Sevits
heroin found during that invalid inventory was discovered
in violation of Article I, section 9. The trial court did not err
in granting defendant’s motion to suppress.
Affirmed.