State v. Barnett ( 2019 )

656
Argued and submitted January 7, affirmed October 2, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
NICKLAS MARTIN BARNETT,
aka Nicklas Adam Barnett,
Defendant-Appellant.
Coos County Circuit Court
16CR74403; A165293
449 P3d 914
Richard L. Barron, Senior Judge.
Matthew Blythe, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Christopher A. Perdue, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
PER CURIAM
Affirmed.
James, J., concurring.
Cite as 299 Or App 656 (2019) 657
PER CURIAM
Defendant appeals from his conviction of unlawful
possession of methamphetamine, ORS 475.894, assigning
error to the trial court’s denial of his motion to suppress evi-
dence resulting from the inventory of a small camera case.
On appeal, defendant argues that the camera case was not
a container “designed” to hold valuables, but was rather
designed to hold a camera and that a camera does not con-
stitute a “valuable” when read in the context of the policy, in
particular the following section:
“This policy provides guidance regarding searches of indi-
viduals in custody. Such searches are necessary to elimi-
nate the introduction of contraband, intoxicants or weap-
ons into the North Bend Police Department facility.”
The state responds that our decision in State v.
Cleland, 289 Or App 379, 382, 410 P3d 386 (2017), rev den,
362 Or 699 (2018), supports the trial court’s conclusion that
the inventory in this case was lawful. The state argues
that “an item is a valuable depending on how the governing
inventory policy describes the types of valuables that con-
tainers might be designed to carry” and points to another
section of the policy that states:
“Closed Container Searches. Closed containers will not
be opened for inventory purposes except for the following,
which shall be opened for inventory: wallets, purses, coin
purses, fanny packs, personal organizers, briefcase or other
closed containers designed for carrying money or small
valuables, or closed containers which are designed for haz-
ardous materials.
“Other closed containers shall be opened and inventoried if
the owner acknowledges they contain cash in excess of $10,
valuables or a hazardous material.”
The state argues that the policy used “the same
kinds of examples of valuables—wallets, purses, brief-
cases—as the policy at issue in Cleland. And, as in Cleland,
those examples suggest a case for carrying a small electron-
ics device is a case for carrying valuables.”
We agree and, accordingly, affirm.
Affirmed.
658 State v. Barnett
JAMES, J., concurring.
Defendant challenges the search of a small camera
case pursuant to a City of North Bend inventory policy. We
affirm that inventory by per curiam opinion, relying on our
recent decision in State v. Cleland, 289 Or App 379, 382, 410
P3d 386 (2017), rev den, 362 Or 699 (2018), where we held that
a Salem inventory policy that authorized the search of con-
tainers designed to hold valuables encompassed containers
designed to hold small electronic devices—in that case, a
game system. I wrote separately in Cleland to discuss the
history of Oregon’s inventory jurisprudence and the logical
contradictions and policy consequences our decisions in this
area have created. In so doing, I likened our inventory deci-
sions to impressionist paintings hung in a museum. But law,
like art, moves forward. And with recent decisions, I believe
we may have firmly entered the surrealist period.
Any discussion of inventory policies under Oregon
law must begin with State v. Atkinson, 298 Or 1, 688 P2d
832 (1984). In Atkinson, the Oregon Supreme Court held,
explicitly and without qualification or equivocation, that to
be valid under the Oregon Constitution, an “inventory must
be conducted pursuant to a properly authorized administra-
tive program, designed and systematically administered so
that the inventory involves no exercise of discretion by the
law enforcement person directing or taking the inventory.”
298 Or at 10 (emphasis added). The court then went on to
state that
“[o]bjects found within the inventoried vehicle should be
scrutinized only to the extent necessary to complete the
inventory.
“The degree to which an inventorying officer may scru-
tinize the items uncovered is limited. See State v. Perry,
298 Or 21, 688 P2d 827 (1984), decided this day. See also
State v. Keller, [265 Or 622, 510 P2d 568 (1973),] where we
held that police conducting an inventory of an automobile
‘pursuant to administrative requirements’ * * * could not
open a fishing tackle box which was secured with wire tied
around it, but would be required to inventory only the con-
tainer as ‘one fishing tackle box.’ ”
Id. (footnote omitted).
Cite as 299 Or App 656 (2019) 659
Atkinson states that the scrutiny given to items is
limited and, in explanation of that limitation, points to its
decision in Keller, 265 Or at 626-27. There, the court held that
the inventory of a tackle box was unlawful and, in explain-
ing that result, examined two competing lines of reasoning
from other jurisdictions. Representative of the first line of
reasoning, the court called out People v. Sullivan, 29 NY2d
69, 272 NE2d 464, 323 NYS2d 945 (1971). There, a briefcase
was found in an impounded car. The briefcase was opened
pursuant to an inventory, and the weapon inside was held to
be lawfully admitted in evidence.
The reasoning and result in Sullivan were rejected
by Keller:
“We believe the better reasoning is expressed in the fol-
lowing cases. In Mozetti v. Superior Court of Sacramento
County, 4 Cal 3d 699, 94 Cal Rptr 412, 484 P2d 84 (1971),
the petitioner (mandamus to require suppression of evi-
dence) was involved in a two-car collision and was taken
to the hospital. Police arrived and her car was blocking
the roadway. ‘In accordance with standard (police) proce-
dure’ the officer was instructed to prepare an inventory of
the contents of petitioner’s automobile prior to having it
towed away. In the course of his inventory, the officer saw
an unlocked suitcase on the back seat, in addition to other
items in plain view. ‘Finding the suitcase unlocked he
opened it, apparently to determine if it contained any arti-
cles of value.’ Inside he found a plastic bag containing mar-
ijuana, which was the basis of the information charging
petitioner with possession of marijuana. The facts are par-
allel to the case at bar except there was no lawful arrest.
The court held:
“ ‘We have no doubt that the police, in the course of such
valid protective measures, may take note of any personal
property in plain sight within the automobile being taken
into custody. Any objects clearly visible without probing—
including the suitcase in this instance—may be listed in an
inventory or other police report. * * * What concerns us here
is the reasonableness of the search into the closed suitcase.’
“ ‘* * * Thus we find unpersuasive the contention made
by the People that the inventory of contents not within
plain sight is reasonable because it is necessary to protect
the property for the benefit of the vehicle owner.’ ”
Keller, 265 Or at 627 (emphasis in original).
660 State v. Barnett
To summarize, Atkinson held that there were limits
to the degree of scrutiny that an officer may give to items
while conducting an inventory and pointed to Keller as
explaining those limits. Keller, in turn, rejected the reason-
ing of Sullivan, which permitted the opening of a briefcase,
and instead adopted the reasoning of Mozetti, which limited
police scrutiny to the outward container only—requiring
that the inventory list “one suitcase” without opening it to
list the contents individually.
One might reasonably ask how then, given that
history, we arrived at a decision upholding the inventory
of a briefcase—precisely the scenario rejected by Keller and
Atkinson—in State v. Johnson, 153 Or App 535, 540, 958
P2d 887, rev den, 327 Or 554 (1998) (“[T]he briefcase and the
coin purse in this case * * * are typically used to store valu-
ables in the same way as a purse or a wallet.”). Certainly our
decision in State v. Mundt/Fincher, 98 Or App 407, 780 P2d
234, rev den, 308 Or 660 (1989), a decision I have previously
described as “judicial alchemy,” opened the door. Cleland,
289 Or App at 388 (James, J., concurring).
Mundt/Fincher acknowledged that our decision in
State v. Ridderbush, 71 Or App 418, 692 P2d 667 (1984)—a
decision made in the immediate wake of Atkinson—had
admitted that the Oregon Supreme Court had set a clear
and uniform rule:
“[P]roperty is to be listed by its outward appearance; no
closed, opaque container may be opened to determine what,
if anything, is inside it so that the contents may be invento-
ried in turn. This is a commendably clear and simple rule,
easy to enforce in most circumstances, including those in
the present case.”
Ridderbush, 71 Or App at 426. But, Mundt/Fincher carved
out an exception to that uniform rule, holding:
“Ridderbush does not control the inventory of a wallet
or a purse. Neither a wallet nor a purse is a ‘closed, opaque
container.’ The black box in Ridderbush could have con-
tained anything small enough to fit in it. However, a wal-
let typically has openings for inserting money, credit cards
and other valuables; even when folded shut, it is not ‘closed’
in the way that the box in Ridderbush was. A purse usually
Cite as 299 Or App 656 (2019) 661
has compartments for storing money and other valuables
and frequently holds a wallet. Because wallets or purses
are primarily intended to be used to store valuables, it may
be important to discover what is in them[.] * * * Although
other containers may also hold valuable property, wallets
and purses are uniquely designed for that purpose.”
98 Or App at 412. And with that pronouncement, Mundt/
Fincher unmoored this court from Atkinson and Keller—and
we have drifted ever since.
After Mundt/Fincher, our decisions came to focus
on whether the object inventoried was “designed” to hold
valuables, or “likely” would hold valuables, and turned on
us analogizing the object in question to a wallet or a purse.
See, e.g., Cleland, 289 Or App at 382 (upholding the inven-
tory of a “container for holding a small external computer
hard drive or a small video game console”); State v. Komas,
170 Or App 468, 475, 13 P3d 157 (2000) (upholding inventory
of a shoulder bag as it is “akin to either a purse or a fanny
pack”); State v. Bean, 150 Or App 223, 229, 946 P2d 292(1997), rev den, 327 Or 448 (1998) (holding that fanny packs
were containers “intended primarily to store valuables” in
a general sense and, therefore, excepted from the Atkinson
prohibition). Despite the fact that neither Atkinson nor
Keller rely on an item’s design or likely use as a decisional
basis, that has become our focus today. With each new case,
we address a new iteration of container, hold it up to the
long line of other containers stretching back to the wallet or
purse, and conclude that it was intended to, or likely would,
contain something valuable, and is, therefore, permissibly
opened in an inventory. And in so doing, we have used the
apple of reasoned incrementalism to hide our bowlered face
from the uncomfortable clarity of Atkinson and Keller.
The resulting drift away from Oregon Supreme
Court precedent is exemplified by this case, and our recent
decision in State v. Salkoski, 299 Or App 180, 448 P3d 718
(2019). In this case, the North Bend inventory policy at issue
provides:
“Closed containers will not be opened for inventory purposes
except for the following, which shall be opened for inven-
tory: wallets, purses, coin purses, fanny packs, personal
662 State v. Barnett
organizers, briefcases or other closed containers designed
for carrying money or small valuables, or closed containers
which are designed for hazardous materials.
“Other closed containers shall be opened and inventoried if
the owner acknowledges they contain cash in excess of $10,
valuables or a hazardous material.”
In oral argument before us, the state acknowledged
that “there might be an implicit threshold in this policy that
valuables have to be worth $10.00 or more” regardless of
whether the container is being opened under “design” in the
first clause, or under the policy’s second clause of “use.” In
other words, the policy, as written, may imply that wallets,
purses, briefcases, and other closed containers designed for
carrying valuables in excess of $10.00 are subject to being
opened. In Cleland, I noted the implicit injection of officer
discretion into a determination of value. If the policy in this
case operates as the state acknowledges, it only exacerbates
that problem. Here, like a game show contestant, the officer
is asked to approximate a value, without going under a tar-
get. If one fanny pack looks like it would only have $9.99,
it is secured, while another that somehow is determined to
likely have more than $10.00 is opened. There is simply no
credible argument that such a determination by an officer in
the field is anything other than an exercise of discretion.1
Our recent decision in Salkoski exemplifies another
problem with the design/likely use rationale. There, we once
again expanded the universe of permissible containers to
include the generic, yet ubiquitous, backpack. We justified
that conclusion by noting that “[t]his court has plainly and
repeatedly held that an inventory policy may lawfully autho-
rize police officers to open closed containers that are either
1
The challenges presented by using a valuation assessment as a predicate
for authorization for an inventory may be soon made more difficult by our recent
decision in State v. Jones, where we held, in the context of criminal mischief, that
“[v]alue is not always merely economic value. Property may be damaged in
the sense of being physically harmed or losing completeness, efficiency, or
function. It may be damaged even if such loss of efficiency or function has
no appreciable affect on the economic value. Even objects with no economic
value at all can be damaged if the harm affects some other value—like sen-
timental value.”
298 Or App 264, 268, 445 P3d 358 (2019).
Cite as 299 Or App 656 (2019) 663
designed to hold valuables or are likely to contain them.”
299 Or App at 183-84 (emphases in original). We then con-
cluded, “a ‘normal, standard backpack’ is akin to a fanny
pack, as well as a wallet, purse, briefcase, and shoulder bag.
All, by their nature, typically are used to store valuables.”
Id. at 184 (emphasis added).
How we derived at our pronouncement on the
“nature” of a backpack is left unexplained. It unquestion-
ably was not based on evidence—there was no evidence pre-
sented in Salkoski on the nature of a backpack, its common
uses, or statistical data on how often it is used by the pop-
ulace to contain a “valuable.” But, to be fair, there was no
evidence on an item’s use or nature presented in any of our
inventory cases where we expanded the category of permis-
sible objects. Rather, our approach in all these cases seems
ontological—where we pronounce, as philosophical truism,
that an object simply is of a particular essence. But it is
hardly self-evident that a backpack is “designed” to hold
valuables. Some are clearly a nonfunctionary fashion acces-
sory. And, while a backpack certainly may hold a valuable,
and sometimes certainly does, sometimes it simply holds an
old sweatshirt, a bottle of water, or a well-read book. We
have no basis—either in logic or evidence—to arrive at any
conclusions on the frequency of that use so as to label it
“likely.”
Our decisional history since Mundt/Fincher shows
no limiting principle. If the backpack in Salkoski can be
opened pursuant to an inventory, what cannot? Through the
lens of analogy, the gym duffel will look akin to the back-
pack. The shopping bag will fit neatly alongside the shoul-
der bag. The rolling backpack will be next, and from there,
it is a short hop to the airline carry-on. At that point, the
suitcase becomes an extension that logic demands. If our
jurisprudence in this area is not corrected—either by us, or
the Supreme Court—the only object that will remain free
from scrutiny will be the original tacklebox of Atkinson.
Yet, the Oregon Constitution provides that everyone—not
just the angler—is protected from the warrantless admin-
istrative rummaging through one’s personal effects by the
government.
664 State v. Barnett
However, here, like Cleland, I join the majority.
Defendant’s attempts to distinguish the facts of this case
from precedent are unpersuasive. To reach a different result
would require more than factual distinction, it would require
that this court disavow many of its prior decisions in this
area. “[T]he principle of stare decisis means that the party
seeking to change a precedent must assume responsibility
for affirmatively persuading us that we should abandon that
precedent.” State v. Ciancanelli, 339 Or 282, 290, 121 P3d
613 (2005). Neither party has asked us to do so, and it would
be improper for this court to engage in that task sua sponte.
Accordingly, I concur.