State v. Hewitt , 300 Or. App. 792 ( 2019 )

792
Argued and submitted June 20, affirmed November 27, 2019, petition for review
denied February 20, 2020 (366 Or 205)
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHANE WILLIAM HEWITT,
Defendant-Appellant.
Malheur County Circuit Court
17CR13809, 15CR1493;
A165988 (Control), A165987
454 P3d 830
Defendant appeals from judgments in two cases, consolidated on appeal. In
the first case, defendant appeals from a judgment of conviction for supplying con-
traband, ORS 162.185. In the second, 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 dis-
covered during an inventory of defendant’s property at the Malheur County Jail.
That evidence formed the basis for defendant’s supplying contraband conviction
and, in part, the trial court’s decision to revoke defendant’s probation on the coer-
cion conviction. Held: The trial court did not err in denying defendant’s motion
to suppress the evidence. The deputy who conducted the inventory of defendant’s
personal property adhered to and acted within the scope of the applicable inven-
tory policy.
Affirmed.
Lung S. Hung, Judge.
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.
Affirmed.
Cite as 300 Or App 792 (2019) 793
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 sup-
plying contraband, ORS 162.185. In the second, Case No.
15CR1493, defendant appeals from a supplemental judg-
ment revoking defendant’s probation on a coercion convic-
tion. Defendant assigns error to the trial court’s denial of
his motion to suppress evidence discovered during an inven-
tory of defendant’s property at the Malheur County Jail. The
discovery of that evidence resulted in defendant’s supply-
ing 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 defen-
dant’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 constitution-
ally sufficient evidence in the record to support them. State
v. Ehly, 317 Or 66, 75, 854 P2d 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 proba-
tion 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 inven-
tory 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
794 State v. Hewitt
gave the form to defendant to sign. The form listed a num-
ber 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 defen-
dant’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 pol-
icy 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 speci-
fied 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 proba-
tion 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 discov-
ered 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 inven-
torying defendant’s property on an inmate property form,
obtaining defendant’s signature on that form, and then leav-
ing defendant’s property unattended for several hours. In
response, the state argues that the trial court correctly con-
cluded that Butler did not deviate from the inventory policy
in this case, because the policy did not preclude Butler from
Cite as 300 Or App 792 (2019) 795
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 pol-
icy 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 addi-
tional 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 sup-
press 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 P3d
1254 (2005). One such exception allows for the administra-
tive “inventory” of a person’s property in law enforcement
1
The trial court found that the contents of the clear baggie were in plain
view after being pulled from defendant’s jacket as part of the inventory search.
The trial court further found that the deputies believed, based on their observa-
tions and training, that the substance inside the baggie was methamphetamine.
The trial court then concluded that the search and subsequent testing of the sub-
stance did not violate Article I, section 9. On appeal, defendant does not challenge
those aspects of the ruling.
796 State v. Hewitt
custody, typically carried out when police impound a vehi-
cle, or when a person is being booked into a custodial facil-
ity. State v. Hite, 266 Or App 710, 719, 338 P3d 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. 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 P3d 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 P2d 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. 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 require-
ment—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 appli-
cable inventory policy authorized the officer to open a par-
ticular type of closed container, which is also not at issue
here. See, e.g., State v. Salkoski, 299 Or App 180, 184-85, 448
P3d 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 P3d 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 P3d 315 (2009), and
Cite as 300 Or App 792 (2019) 797
State v. Rowell, 251 Or App 463, 283 P3d 454, rev den, 353
Or 127 (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.
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 laptop
bag after the arrestee was placed in the back of a patrol car,
but the inventory policy permitted police to conduct invento-
ries only before placing an arrestee in a police vehicle. 251
Or App at 471-72.
We begin our analysis with a discussion of the rel-
evant policy. At the motion to suppress hearing, the state
introduced two orders of the Malheur County Sheriff’s
Office, General Order J 7.06 and General Order J 08.02,
as evidence of the inventory policy that granted Butler the
authority to conduct the inventory. General Order J 7.06
provides, in part:
“POLICY
“I
“It shall be the policy of the Malheur County Sheriff’s Office
to ensure that all inmate personal property, including mon-
ies, is received, stored, and released in a safe, secure and
systematic manner in accordance with the law.
“PROCEDURE
“II
“A. When an inmate is lodged into the Malheur County
Jail, all personal property including clothing, jewelry,
money, etc. will be taken, receipt given and stored.
“* * * * *
“G. All items of inmates[’] personal property will be inven-
toried on an Inmate Property Form (including all items in
bags, purses and/or wallets), including those items which
798 State v. Hewitt
are retained by the inmate or confiscated/retained by the
arresting/transporting officer, and the form will be signed
by the prisoner and cosigned by the receiving deputy.
“H. Inmate shoes and clothing will be placed in a plastic
storage box and stored securely in the Property Room * * *.
***
“I. All money will be taken and accounted. A receipt will
be given to the inmate and money will be placed into the
designated safe.”
(Boldface in original.)
General Order J 08.02 governs all inmate search
procedures. The pertinent part provides:
“PROCEDURES
“III
“* * * * *
“B. Searches of inmates should be conducted on a rou-
tine and random basis. Special attention should be given
to inmates:
“1. At the admission process. Inmate clothing should be
searched to complete the inventory process and to protect
against possible claims of misappropriation by staff mem-
bers, and as a means of interdicting the introduction of ille-
gal and contraband items into the jail[.]”
(Boldface in original.)
Butler also testified about the inventory policy at
the suppression hearing, beginning with an explanation of
how the Malheur County Jail deputies conduct the standard
intake process. The process begins when the deputy respon-
sible for intake escorts the inmate from the jail sallyport to
the “intake receiving section.” Once there, the deputy per-
forms an initial patdown over the inmate’s clothing. Butler
testified that, after that patdown, the deputy receives cer-
tain items of the inmate’s personal property:
“We remove their handcuffs, we ask them to put their
hands up on the wall at that point in time, and then we
have them remove * * * their shoes, their belt if they are
wearing a belt, their jacket. They hand the jacket over and
Cite as 300 Or App 792 (2019) 799
the belt over to us. If they have any jewelry, they remove
that as well.”
According to Butler, the inmate is taken to a hold-
ing cell adjacent to the intake area. Next, the inmate is
subject to an “unclothed search,” when the last items of the
inmate’s personal property are taken. Butler explained:
“Once [the inmate is] inside the [holding cell], the property
goes behind our booking counter into a property bin that
we have that is pre-set up back there for, for them. So we
just put the property right inside of it.
“* * * * *
“So we go through [the property]. If we didn’t feel any-
thing initially inside the pockets, we just go past those
because we didn’t find anything. We go through their wal-
let. If they have a wallet, we go through their wallet.
“We get anything that, we try to notate anything worth
value. If it’s something that we deem that is valuable, we
have to notate and annotate it. So that way, if it gets lost,
that we have that in case of we have to do reimbursement
or any financial burdens upon the jail. And we go through
it and we list everything that we find of value at that point
in time.”
If the deputy conducting an inventory discovers
an item that was not listed on the inmate’s property form,
the deputy brings the inmate back into the booking area to
“redact [the] inventory personal property form and put the
valuables on there.”
In its ruling on the motion to suppress, the trial
court determined that the procedure does not contain a par-
ticular “time limit,” which it noted was an important factor.
Thus, although Butler had logged defendant’s items on an
inmate property form and placed those items in a plastic bin
while he attended to other matters, Butler’s examination of
the jacket pocket was an inventory authorized by the policy.
Under the policy, the court explained, it would expect a dep-
uty to remove and inspect an item discovered during stor-
age to determine whether the item was valuable. Therefore,
Butler acted in accordance with the policy when he removed
the item for that purpose.
800 State v. Hewitt
As noted, defendant asserts that the trial court’s
ruling is incorrect because the policy did not authorize
Butler to continue the inventory several hours after defen-
dant signed the inmate property form. As we understand
that argument, it contains two separate contentions: (1) that
the time lapse itself was a deviation from the policy and
(2) that, under the policy, the inventory ended when defen-
dant signed the property form.
With respect to the time lapse, the trial court’s find-
ing that the policy contained no “time limit” is supported
by evidence in the record. Nothing in the text of the policy,
or in Butler’s testimony, indicates that the inventory policy
imposes a “time limit” on the inventory procedure. The time
lapse in this case did not constitute a deviation from the
policy set forth in General Orders J 7.06 and J 08.02.
We turn to defendant’s assertion that the inventory
ended when defendant signed the property form. Defendant
argues that the “intake policy contemplates that the inven-
tory that occurs will precede an inmate’s signed acknowl-
edgement of that property on an Inmate Property Inventory
Form.” (Emphasis in original.) Specifically, defendant points
to sections A and G of General Order J 7.06, which pro-
vide that “all personal property including clothing, jewelry,
money, etc. will be taken, receipt given and stored” and “[a]ll
items of inmates[’] personal property will be inventoried on
an Inmate Property Form * * * and the form will be signed
by the prisoner and cosigned by the receiving deputy.”
According to defendant, because those sections impose an
order within the policy, the intake deputy may only exam-
ine or “inventory” an inmate’s property during the “inven-
tory” step. That is, defendant contends that those sections
of the policy necessarily precluded Butler from examining
any items discovered after defendant signed the form.
First, we emphasize that the focus of our determi-
nation here is whether Butler adhered to or deviated from
the inventory policy. As noted, we make no conclusions as
to the constitutional validity of the policy itself. Turning to
defendant’s argument, we conclude that the policy autho-
rized Butler’s actions in this case.
Cite as 300 Or App 792 (2019) 801
General Order J 7.06 states that all inmate prop-
erty “will be taken, receipt given and stored.” (Emphasis
added.) That wording implies that the inventory process as
a whole does not end until the property has been stored. As
a result, we understand the policy to require an intake dep-
uty to (1) take the inmate’s personal property, (2) account for
and list each of those items of property on a form, (3) direct
the inmate to sign the form, and then (4) store the property
in an appropriate manner. Butler followed that procedure
until he reached the “storage” step and felt an unidentified
item. The precise issue then is whether, while engaged in
that “storage” step, Butler was authorized to pull the item
from defendant’s pocket in order to determine its nature.
Considering the particular facts of this case and the policy
as a whole, we conclude that the policy authorized Butler to
inspect the item in defendant’s jacket pocket.
Importantly, Butler was preparing the property for
storage when he felt the methamphetamine in defendant’s
jacket. That is, the inventory process was in progress when
he felt the item in defendant’s jacket pocket. And, unlike
the policy in Rowell, which stated that “[a]n inventory will
occur prior” to placing the arrestee in the vehicle, the policy
here does not contain express language dictating a tempo-
ral order. Rowell, 251 Or App at 470 (emphasis in original).
Further, we read other aspects of the policy’s text to autho-
rize Butler’s actions here. For example, Order J 7.06 directs
the deputy conducting the inventory to take “all money”
and “all personal property” and to inventory “all items” of
inmate personal property. Order J 08.02 further provides
that “[i]nmate clothing should be searched to complete the
inventory process.” When Butler removed the item from
defendant’s pocket, he complied with the policy’s clear direc-
tives to search inmate clothing and inventory “all items.”
See Brown, 229 Or App at 303-04 (officer’s removal of items
in arrestee’s pockets was authorized by inventory policy
directing police to “remove all items of personal property
from the clothing worn by [the arrestee]”).
Butler’s testimony also supports the trial court’s
determination that a deputy acting under the inventory
policy in this case would not ignore an unidentified item
802 State v. Hewitt
discovered during storage but would take that item out to
see if it is a valuable item and, if so, to log it. Butler testi-
fied that, under the policy, he was required to note anything
of value. And he explained that, when deputies at the jail
discover a new item of inmate property after the inmate
has signed an inmate property form, the deputies “redact”
the property form, and bring the inmate back to the book-
ing area to sign the redacted inmate property form. This
suggests that the policy, at least in practice, contemplates
a situation where an intake deputy discovers a new item
of inmate property after the “inventory” step is complete.
See State v. Steele, 290 Or App 675, 684, 414 P3d 458 (2018)
(relying on officer testimony to determine the contents of
an inventory policy). As noted, we do not decide—because
the issue is not before us—whether the policy appropriately
eliminated Butler’s exercise of discretion.
In sum, the trial court correctly concluded that
Butler acted within the scope of the inventory policy set
forth by the Malheur County Sheriff’s Office when, in the
process of storing defendant’s property, he felt an item in
defendant’s jacket pocket and removed it. Therefore, the
trial court did not err in denying defendant’s motion to sup-
press. Accordingly, we affirm both judgments.
Affirmed.