State v. Kruchek , 156 Or. App. 617 ( 1998 )

ARMSTRONG, J.

Defendant appeals his conviction for possession of a controlled substance, contending that the trial court erred when it denied his motion to suppress evidence of marijuana found in a plastic cooler. The trial court ruled that, because an odor of marijuana had emanated from the cooler,

“the contents of [the] cooler * * * [had announced] themselves to the officer. * * * [Hence,] defendant’s privacy interests were not invaded when the officer opened the cooler.”

The trial court apparently based its ruling on State v. Owens, 302 Or 196, 729 P2d 524 (1986), in which the Supreme Court held that

“when there is probable cause to believe that a lawfully seized transparent container contains a controlled substance, opening the container, removing a modest quantity of its contents and subjecting it to chemical analysis for the sole purpose of confirming that it is a controlled substance, is not a ‘search’ or ‘seizure’ under the Oregon Constitution.”

Id. at 207 (emphasis added). We conclude that Owens does not apply to this case and, accordingly, reverse the trial court.

The operative facts are undisputed. Portland Police Officer Gunderson parked his patrol car to watch an apartment for drug activity. He saw defendant’s van pull up and park outside the apartment but did not see anyone get out of the van. He then watched the van pull away from its parking spot and make an unsignaled left turn. Gunderson pulled out behind the van, turned on his overhead lights and stopped defendant for the traffic infraction.

Gunderson approached the van and asked defendant for his driver’s license, registration and proof of insurance. Defendant could not produce proof of insurance, so Gunderson gave him a traffic citation for driving uninsured. See ORS 806.010. In accordance with department policy, Gunderson then impounded the van.¹ After impounding the van and in anticipation of its being towed, Gunderson began making an inventory of its contents. At the hearing' on the motion to suppress, he testified that his intention was

“to go through the van, to make note of any weapons that [might] be present, perhaps use [sic] those for safekeeping so that a tow driver is not [h] armed by them. It is also to locate any valuables on behalf of the person who owns the van so that they are accounted for and noted in a police report in case there were to be some type of a problem at the time the van was picked up.”

While inside the van, Gunderson noticed a strong odor of freshly cut marijuana. He concluded that the odor came from a small, plastic cooler located at the back of the van. He opened the cooler and found a large amount of marijuana, a scale and an automatic timer.

Defendant moved to suppress the evidence of the contents of the cooler, claiming that Gunderson should not have opened the cooler without first obtaining a warrant. The state responded that the warrantless search was valid, either because the automobile exception to the warrant requirement applied or because, under Owens, opening the cooler was not a “search” subject to the warrant requirement. The trial court concluded that the automobile exception did not apply but agreed with the state on its second theory. Defendant then agreed to a stipulated facts trial and was found guilty of possession of a controlled substance.

As a preliminary matter, we note that in Owens the Supreme Court held that, when there is probable cause to believe that a lawfully seized transparent container contains a controlled substance, opening the container for the limited purpose of confirming that belief is not a search or seizure of the container’s contents under the Oregon Constitution, because opening the container does not result in any further intrusion into the owner’s privacy or possessory interests. It follows from that holding that, before the police can open such a container, they must first have lawfully seized it as evidence of a crime. An inventory such as the one that took place in this case is not a search nor a seizure — rather, it is a limited administrative act designed to protect a person’s property while in police custody. See, e.g., State v. Bean, 150 Or App 223, 229, 946 P2d 292 (1997), rev den 327 Or 448 (1998).

The fact that an officer has authority to conduct an inventory involving a closed container does not mean that the officer has lawfully seized the container, as required under Owens. If, in the course of an inventory, an officer develops probable cause to believe that a closed container contains a controlled substance, the officer cannot seize the container as evidence of a crime without first obtaining a warrant or establishing that an exception to the warrant requirement permits the seizure without a warrant.

In this case, defendant did not argue to the trial court or to us that the state had failed to establish a lawful basis to seize the cooler as evidence of a crime. For that reason, we must assume that the state met that requirement. It is important to recognize, however, that Owens did not dispense with the requirement that the container be lawfully seized as evidence of a crime and not merely be accessible to the police in an inventory. With that in mind, we turn to whether the officer violated Article I, section 9, by opening the cooler without first obtaining a warrant.

The trial court applied the rationale first set forth in Owens to the facts of this case and concluded that, even though the officer had opened the cooler to verify the presence of marijuana, the odor of which exuded from the chest, the opening of the cooler was not a search under Article I, section 9, because “the contents of [the] cooler * * * were announcing themselves to the officer. * * * [Defendant's privacy interests were not invaded when the officer opened the cooler.” That conclusion was incorrect.

The cooler in defendant’s vehicle was an opaque container that could have contained any number of items, legal or illegal, and that happened to contain marijuana among its contents. The fact that the officer could smell marijuana in the cooler cannot, by itself, defeat the privacy interest that defendant had in the cooler. This is not a case of a paper bindle that, by its size and unique construction, could not have been anything other than a packet of drugs. See State v. McCrory, 84 Or App 390, 734 P2d 359 (1987). It is not a case of a transparent container through which contraband and nothing else is readily viewed. See Owens, 302 Or at 206; State v. Bechtold, 99 Or App 593, 783 P2d 1008 (1989), rev den 309 Or 521 (1990). Nor is it a case in which an otherwise concealing container is labeled in a way that reveals its illegal contents. See State v. Ready, 148 Or App 149, 939 P2d 117, rev den 326 Or 68 (1997) (videotapes labeled “kid porn from Larry — movies then stills” announced contents as contraband). In such cases, the containers in question not only “announce” their contents but do so in a way that announces that contraband is their sole content. Owens and its progeny require that that be the case. If they did not, then opening the container would constitute a search, because it would open to scrutiny contents that were not then known.² There is no basis, on this record, to conclude that the smell emanating from the chest announced that the chest contained marijuana and only marijuana.³

If the trial court’s conclusion were correct, then any time the police have reason to believe that a container (or, for that matter, a home) holds contraband, because they can either see the contraband or smell it, they would be justified in opening the container (or entering the home) to look for the contraband, on the ground that it has “announced” its presence. The law is clearly to the contrary. The rationale in Owens and its progeny is confined to situations in which there is no reason to believe that opening the container will result in any greater intrusion into a person’s privacy than already has occurred through viewing or smelling the container. Accordingly, unless it is apparent that the container at issue holds nothing other than contraband, and that is not the case here, a warrant is required before the police lawfully can open it, unless an exception to the warrant requirement applies.⁴

Although we conclude that the trial court erred in applying Owens to this case, the state offers alternate grounds for affirming the court’s ruling.⁵ First, it argues that the automobile exception to the warrant requirement applies to the search of the cooler. Second, it contends, for the first time on appeal, that the search was a valid search incident to arrest. Both arguments are unavailing.

The automobile exception provides that, “ ‘if police have probable cause to believe that a person’s automobile, which is mobile when stopped by police, contains contraband or crime evidence’ they may conduct a warrantless search for those items.” State v. Burr, 136 Or App 140, 145, 901 P2d 873, rev den 322 Or 360 (1995) (quoting State v. Brown, 301 Or 268, 276, 721 P2d 1357 (1986)). The exception exists to prevent evidence of criminal activity from being moved quickly out of the locality in which the warrant must be sought. Burr, 136 Or App at 149. In other words, an automobile that can quickly be moved out of the locality in which the warrant must be sought presents an exigent circumstance per se. Before Gunderson impounded the van, it is arguable that, because the van had been lawfully stopped and had been mobile when stopped, the automobile exception could have applied to a search of it. However, once Gunderson impounded the van, any exigency created by the van’s mobility was extinguished. Gunderson was in control of the vehicle and could have kept it at the location of the stop until a warrant was issued. There was no evidence presented that the van was being towed at that time, only that Gunderson was arranging for a tow. Nor was there any evidence presented that the tow yard to which the van would be taken was not secure. The only evidence was that the van would be taken to the “city impound yard.” The trial court correctly ruled that the automobile exception did not apply to the search.

As for the state’s second alternate ground for affirmance, that the search was a valid search incident to arrest, we will not address that argument because the factual record below was not sufficiently developed. See State v. Jacobsen, 142 Or App 341, 345, 922 P2d 677 (1996) (court will not address issue raised for the first time on appeal if parties were not allowed to develop the factual record at trial). For a search incident to arrest to be valid under Article I, section 9, of the Oregon Constitution, the search must be closely connected to the arrest in time, space and intensity. State v. Caraher, 293 Or 741, 758, 653 P2d 942 (1982). The scope of the search extends to personal effects within the immediate control of the arrested person. Owens, 302 Or at 200. The rule exists because an arrest creates a type of exigency that justifies a warrantless search of the arrested person. State v. Clarke, 110 Or App 114, 116-17, 822 P2d 138 (1991). When the exigency of the arrest dissipates, the police must seek a warrant before searching further. Id. The state contends that the search was a valid search incident to arrest because it “occurred contemporaneously with defendant’s arrest, and it was limited to areas and articles within the arrestee’s immediate control.” The factual record is not sufficiently developed to support that contention. The van and its contents were no longer in defendant’s immediate control when the police arrested defendant, because Gunderson already had impounded them. There also is insufficient evidence on which to find that the exigency of the arrest existed at the time of the search. It is possible that, had the issue been properly raised below, the state might have established that the search was a valid search incident to arrest, but, raised as it is for the first time on appeal, the record is not sufficient for us to address the issue.⁶

Reversed and remanded.

1 Gunderson testified at the suppression hearing that officers who issue citations for driving uninsured are “ordered to have the auto towed and have it held in the city impound until such time that the driver or the owner can present proof of insurance for that vehicle.”

2 The dissent claims that State v. Herbert, 302 Or 237, 729 P2d 547 (1986), holds to the contrary and that it controls this case. The dissent is mistaken. Herbert involved a principle quite different from the one at issue in Owens. Owens involved whether opening a container that the police had in their possession constituted a search. Owens held on its facts that it did not. Owens, 302 Or at 206-07. Herbert, in contrast, involved a situation in which opening the container did constitute a search, Herbert, 302 Or at 243, but it was justified by probable cause and exigent circumstances. Herbert simply has no application to this case, in which the state made no effort to establish that the search that occurred when the police opened the container was justified by exigent circumstances.

It Herbert stood for the proposition that the police are free to search without a warrant or an exception to the warrant requirement a container that they have in their possession, then there was no reason for the court to go to the trouble that it did in Owens to establish when it is not a search to open such a container. Of course, Herbert does not stand for that proposition. Herbert and Owens address very different situations. Our case involves the application of Owens, not Herbert.

3 In fact, the cooler did contain things other than marijuana.

4 Properly understood, Owens stands for the proposition that the police do not conduct a search by opening a container that has already announced all of its contents, so it is not a search to open the container to seize the contents. In other words, the police authority to open a container to seize its announced contents depends on the police having probable cause to believe that the container contains only the announced contents, because only then would opening the container not constitute a search, i.e., only then would the police not expect to open to scrutiny anything that was not already believed to be inside. If Owens were not so limited, then it would eliminate the principle that searches and seizures are to be analyzed separately, see, e.g., State v. Barnum, 136 Or App 167, 171-74, 902 P2d 95 (1995), rev den 323 Or 336 (1996), because probable cause to seize any object without a warrant would carry with it the authority to open it to determine if it contains what the police have probable cause to believe that it does. If the police open the door to a vacant house, then they have conducted a search even if they see nothing inside. It is the fact that opening the door would subject the contents of the house to scrutiny that makes the police conduct a search. Owens makes sense only because it necessarily assumes that opening the transparent container will not subject to scrutiny something inside the container that is not already known to be there from observing the outside of the container.

The dissent disagrees. Under its view, the police could seize a large trunk that had a marijuana plant inside that was visible through a hole in the trunk and, assuming that the seizure was lawful, they could open the trunk without a warrant in order to seize the marijuana, even though they had every reason to believe that the trunk contained things other than marijuana. In its view, once the police open the trunk, their ability to look at the other things in it is simply the fortuitous product of their right under Owens to open it. In effect, the dissent reads Owens to stand for the proposition that, if the police lawfully seize a container that announces some of its contents, they can open it to seize the announced contents, even though opening it will subject to scrutiny other things in it that are not then known. That makes no sense. We can assume, for these purposes, that a person whose container has announced some of its contents may have no privacy interest in the announced contents, but that person still has a privacy interest in the remaining contents, which interest would be violated by opening the container. Article I, section 9, exists to protect that very interest against invasion by the police.

5 “Where the ruling of the trial judge is correct on any ground, it will be upheld, even though his [or her] reasons for the ruling may have been erroneous.” Rader v. Gibbons and Reed Co., 261 Or 354, 365 n 3, 494 P2d 412 (1972).

6 The state also argues that Measure 40 makes the evidence found in the cooler admissible. The Supreme Court held in Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998), that Measure 40 is invalid, so we reject the state’s argument.