State v. Silva , 170 Or. App. 440 ( 2000 )

EDMONDS, P. J.

Defendants Silva and Harris are charged in the same indictment with first-degree burglary, ORS 164.225, and first-degree theft, ORS 164.055. The state appeals from pretrial orders suppressing evidence, including evidence obtained from the search of a duffel bag that was on the back seat of the car that Silva was driving and in which Harris was a passenger.¹ ORS 138.060(3). We affirm.

Under State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), we are bound by the trial court’s findings of historical fact if there is constitutionally sufficient evidence to support them. “If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court’s ultimate conclusion.” Id. Here, the trial court found “that the testimony of Deputy Chief Norris and Detective Ford [is] truthful and reliable and accurately state[s] the facts.” Thus, we state the facts according to Ford’s testimony because he was the officer involved in the events at issue.

At approximately 10:25 a.m. on September 24,1997, Ford was on duty in an unmarked car when he received a report concerning a twelve-year-old boy who had reported during a 9-1-1 call that he was home alone and that a white adult male and a black adult male, both approximately 16 to 19 years old, were in the backyard of his residence. Ford knew that, approximately one week earlier, a residential burglary had occurred in the late morning and that the victim had seen a white adult male and a black adult male near her residence before that crime happened. Ford responded to the call along with other officers. Ford testified that the suspects could not be located by the time that another officer contacted the boy.

Ford remained in his car on a side street in an area that was south of the residence from which the boy called. Ford thought “that the four patrol units rolling into the area might flush these individuals out.” At approximately 10:54 a.m., Ford observed a vehicle with occupants matching the boy’s description. He also recognized the driver as Silva and testified that he believed that another officer had probable cause to arrest Silva for another crime.² Ford stopped the vehicle. He immediately handcuffed and arrested Silva and informed him of his Miranda rights. At some point, Ford also detained Harris.

After Silva was arrested, Ford determined that Silva was driving with a suspended license. He explained:

“Q. * * * [W]hen you stopped [Silva], did you eventually find out that he was suspended?

“A. Yes, we did.

“Q. And as a result of that suspension^] what is Med-ford’s policy?

“A. Medford’s policy now on a[n] individual that is driving while suspended, we tow the vehicle and our policy is that we complete a thorough inventory inside the vehicle.[³]

“Q. And do you know whether or not * * * that policy includes opening closed containers?

“A. Yes. We had been directed that we will open closed containers.

“Q. Now, when you inventoried this specific vehicle, can you tell the Court what containers — what you opened?

“A. We opened a large, it’s approximately two and a half feet long, red dufflel] bag which was in the back seat of the car.

“Q. Was there another bag that was opened?

“A. Yes, there was. When we opened that bag there was a blue denim bag inside of that — the larger red bag and we opened that as well.

“Q. And my understanding, just for Court’s clarification, was that evidence related back to a burglary that was found in those?

“A. That’s correct.

* * * *

“Q. Did you ask Mr. Silva and/or Mr. Hart [for] consent to search?

“A. Yes.

“Q. What was the response[?]

«* * * * *

“[A.] They both stated that the bag was not theirs. I asked them specifically if the bag was theirs. They both stated it wasn’t. They both stated they did not know whose it was.

“Q. Did they ever claim knowledge of the bag?

“A. No. Neither before opening or after opening it.”

Ford testified that Silva explained that he was in the area near the boy’s residence to “look for John’s house” and that he and Silva discussed what happened at the boy’s residence and the contents of the car and duffel bag during Harris’s detention.

After defendants were charged in this case, they moved to suppress the evidence resulting from the search of the duffel bag. The trial court granted that motion, prompting this appeal. The trial court’s order suppressing the evidence provides, in part:

“The court finds that there was no evidence of probable cause to arrest Edward Silva for the burglary of the Dixie Street (or Dixie Road) address other than Detective Ford’s mere statement that Officer Blair had probable cause to arrest Silva for that burglary. This is insufficient evidence to allow the court to make a finding that, in fact, there was probable cause.

“The court does find that there was reasonable suspicion for Detective Ford to stop the vehicle operated by Silva and occupied by Harris based upon the fact recited by Ford concerning the suspicious persons report. The previous daylight burglary in the same area and the information from Officer Blair that he had probable cause to arrest Silva on another burglary.

“The court finds that the vehicle was properly seized and inventoried pursuant to a properly authorized program based upon the Municipal Ordinance and Medford Police Department policy, designed and systematically administered to achieve the stated purpose to protect the * * * property of person[ ]s that are contained in seized vehicles and to protect the police, towing agents, and storage people from fraudulent claims. There is no evidence that discretion on behalf of the police officer is allowed except for the speculative claims of defense counsel.

“There is also no evidence, except that urged by defense counsel which would require speculation, that the search was for evidence of a crime instead of for the stated purpose of Detective Ford that it was for inventory purposes.

“The defendant’s denial of ownership would likely cause the officer more concern about conducting a proper inventory to protect the property of an unknown third party.[⁴]

“Oregon case law however, does not allow for an inventory of the contents of closed containers while Federal cases apparently do allow such a thorough inventory * * *.

“* * * Therefore the Defendants’ Motion to Suppress is Granted.”

The state makes three specific arguments in support of its contention that the trial court’s ruling was error: (1) the fact that the duffel bag was in the back seat of the car that Silva was driving and in which Harris was a passenger does not establish that defendants had a protected interest in the bag; (2) even if defendants had a protected interest in the bag, they abandoned their interest by denying that the bag was theirs; and (3) if defendants had a protected interest in the bag, the inventory policy authorized the police to open the duffel bag.

“[I]n the context of a warrantless search, a defendant is not required to assert a protected property or privacy interest on which the state intruded. Rather, consistent with ORS 133.693(4),[⁵] the burden is on the state to prove that the warrantless search did not violate a protected interest of the defendant.” State v. Tucker, 330 Or 85, 88-89, 997 P2d 182 (2000) (emphasis in original). In this case, Silva said that the vehicle was not his, and the record does not reveal who owned the car. However, Silva had control of the vehicle as its driver, and Harris was a passenger in the vehicle at the time that the bag was searched. In Tucker, the court rejected the state’s argument that “a passenger in an automobile has no protected privacy or property interest in the automobile or its contents.” 330 Or at 88. Thus, under Tucker, we hold that both Silva and Harris had a protected interest under Article I, section 9, in the duffel bag and its contents.

The next issue is whether defendants waived their right to assert their Article I, section 9, interests in the bag. According to the court in Tucker, its opinion in State v. Morton, 326 Or 466, 953 P2d 374 (1998), “demonstrates that a defendant’s denial of a protected interest is not necessarily dispositive of whether the state has met its burden of proving the validity of a warrantless search.”⁶ Tucker, 330 Or at 91. We applied the holding in Morton in State v. Cook, 163 Or App 24, 986 P2d 1228 (1999), rev allowed 330 Or 138 (2000). In Cook, the police went to an apartment complex at approximately 1:30 a.m. after a report that individuals were trying to commit thefts from vehicles. The police observed the defendant bent down next to a garbage dumpster that was in an area adjacent to the apartment complex’s parking lot in the process of sorting clothing into a duffel bag. We held that the officers lawfully stopped the defendant in order to inquire about his activities. The defendant denied that the bag and the clothes, except for a green army jacket, were his both before and after the warrantless search by one of the police officers. Eventually, the defendant admitted that the bag was his. We reasoned:

“Among the circumstances that comment significantly on whether a voluntary relinquishment of defendant’s interests occurred are whether the officers were acting illegally or in a coercive manner to prompt defendant’s statements. Here, unlike in Morton, the officers had made a lawful stop before the bag was searched and were in the process of a lawful investigation when defendant disclaimed ownership of the items. There was no coercion or exploitation of any illegality that produced his disclaimer.” Cook, 163 Or App at 33-34.

Our decision in Cook was followed by State v. Ray, 164 Or App 145, 990 P2d 365 (1999). In that case, we held that the trial court properly denied the defendant’s motion to suppress evidence obtained from a search of a gym bag during the course of a traffic stop because the defendant had abandoned his protected privacy interest in the bag by disclaiming any interest in it. We said that, to determine whether a defendant abandons a constitutionally protected interest after the police engage in unlawful conduct, we must decide “whether the abandonment of the container was prompted or coerced by illegal police conduct.” Ray, 164 Or App at 153. For purposes of our opinion, we assumed that the police officer’s request for the driver’s consent to search her car was an unlawful extension of a traffic stop. However, the record did not support a determination that the defendant passenger’s disclaimer was an exploited product of the request made to the driver. We concluded:

“Before searching the car, [the officer] gave defendant the opportunity to declare that the gym bag was his. Instead, defendant stated that he had no property in the car. The fact that defendant may have disclaimed his ownership of the bag because he feared that [the officer] would search it during his search of the car ‘is not a ground on which to hold that his privacy or possessory interest in the [bag] was violated.’ ” Ray, 164 Or App at 153 (citation omitted; third set of brackets in original).

As in Cook and in Ray, the question in this case is whether the state has demonstrated that the disclaimers by defendants were not prompted or coerced by illegal police conduct. If they were, no voluntary waiver of any protected interest of defendants in the duffel bag occurred. The trial court ruled that there was reasonable suspicion to stop the car. However, the trial court also ruled that the state produced insufficient evidence to demonstrate that there was, in fact, probable cause to arrest Silva based only on Ford’s statement that another officer had probable cause to arrest Silva for a crime. In State v. Pratt, 309 Or 205, 216, 785 P2d 350 (1990), the Supreme Court stated:

“A peace officer who does not himself have probable cause to arrest a felony suspect nonetheless may arrest the suspect if he reasonably believes that the officer or officers who have requested the arrest do have probable cause to make that arrest and if probable cause to arrest does, in fact, exist.” (Emphasis in original.)

We agree with the trial court that the state has failed to prove that the officer who Ford believed had probable cause to arrest Silva actually had probable cause. Consequently, for purposes of this opinion, we treat Silva’s arrest as illegal.

As to Harris, the duration and the scope of inquiry regarding the restraint of his liberty are circumscribed by ORS 131.615 (1995), which provides:

“(1) A peace officer who reasonably suspects that a person has committed or is about to commit a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.

“(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

“(3) The inquiry shall be considered reasonable if it is limited to * * * the immediate circumstances that aroused the officer’s suspicion.”

Ford testified that he contacted Harris and began to question him. Ford also said that Harris “was not free to leave” at the time and that there was also a discussion about the bag. We have found no evidence in the record that suggests that Harris’s detention was ever terminated before the request for the search of the bag was made. The record is also unclear as to whether defendants disclaimed any interest in the bag before or after Ford learned that Silva was driving with a suspended license. The most reasonable inference from the record is that Harris’s detention was ongoing at the time of the search of the bag. The trial court also appears to have found that Ford’s request to search the bag was made for the purpose of inventorying the contents of the car so that it could be towed, a purpose unrelated to the investigation of the suspicious persons report. There is evidence to support that finding. In other words, it could be inferred that Harris was being detained in violation of ORS 131.615 at the time of the request to search.

In that light, our analysis is informed by Morton, in which a plastic container fell from the defendant’s jacket while she was being unlawfully arrested. The defendant denied any connection to the container. The state argued that the defendant had in fact abandoned the container, but the Supreme Court rejected that argument. It reasoned that because the state could not separate the act of the dropping of the container from the unlawful arrest, it had not carried its burden of proving a voluntary abandonment.

Here, the state has not met its burden of proving that Silva was lawfully arrested and that Harris’s detention was over before the request to search and the disclaimer were made. It is that conclusion that distinguishes this case from Ray and Cook. In Cook, the officers made a lawful stop before the bag was searched and were in the process of a lawful investigation when the defendant initially disclaimed any interest. In Ray, an officer made a lawful traffic stop of a car in which Ray was a passenger. However, Ray was not the subject of the traffic investigation. The officer asked the driver if he could search her car and its contents, and she agreed. Before conducting the search, the officer asked the defendant if he had any property in the car, and he said, “ ‘No.’ ” Ray, 164 Or App at 148. The officer searched the bag and discovered controlled substances. As a result, he arrested both the driver and Ray. In support of his motion to suppress, the defendant argued that the driver lacked authority to consent to the search of the bag. However, we reasoned that the defendant’s privacy interest in the bag was unaffected by the driver’s consent, even if that were the case. When Ray was given the opportunity to declare that the gym bag was his, he stated that he had no property in the car. Had he asserted sole ownership in the bag, the officer would have had no legal basis upon which to search, without Ray’s consent. Even assuming that the officer’s request of the driver for consent to search was an unlawful extension of the traffic stop, we held that Ray abandoned his privacy interest in the bag. Unlike in Ray, the evidence here is subject to a reasonable inference that there was an unlawful restraint of Silva’s and Harris’s liberty at the time of their disclaimers of ownership of the duffel bag.⁷

In summary, this case is resolved by the state’s failure to demonstrate the validity of the warrantless search of the bag. In Morton, that burden was not carried because the discovery of the container could not be separated from the illegal arrest of the defendant. In this case, in the absence of a demonstration by the state that Silva’s arrest and Harris’s detention were lawful, the state has the burden of proving that defendants’ disclaimers were not prompted or coerced by their illegal detentions. While it is correct that a “but for” analysis is inappropriate and that a fear on the part of a defendant that a search would reveal incriminating evidence is not a ground upon which to hold that an Article I, section 9, interest is violated, Ray, 164 Or App at 152-53, in order to carry its burden the state must demonstrate that defendants were no longer operating under the influence of the illegal restraint of their liberty at the time of their disclaimers. Our review of the record demonstrates no circumstance that suffices in that regard.

Finally, we turn to the state’s argument that the inventory policy authorized the police to open the duffel bag. In its brief, the state argues:

“The state is aware that this court has held that an inventory cannot constitutionally authorize opening closed containers, or at most can authorize opening only closed containers designed to hold valuables. * * * The state did not argue in the present case that the duffel bag fell within the ‘container designed to carry valuables’ exception. Consequently, under this court’s opinions the opening of the duffel bag, although done pursuant to an otherwise lawful inventory, violated the Oregon Constitution. The prosecutor argued below that this court’s opinions are incorrectly decided, and that inventory policies should be permitted to include opening closed containers. The state submits the following argument in support of that position[.]”⁸

Thus, the state’s only position on appeal is that we should overrule our previous cases under Article I, section 9, of the Oregon Constitution, and allow the opening of all closed containers during an inventory. We decline the state’s invitation, and continue to adhere to our prior decisions. Consequently, the trial court did not err in granting defendants’ motion to suppress the evidence resulting from the search of the duffel bag.

Affirmed.

1 In their motion to suppress the evidence resulting from the search of the duffel bag, defendants asserted that their rights under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution had been violated. Article I, section 9, of the Oregon Constitution, provides, in part: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]” The Fourth Amendment to the United States Constitution provides, in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated!.]”

2 So far as this record discloses, Ford did not ultimately book Silva for that crime.

3 According to Norris, a City of Medford ordinance authorized police to impound the vehicles of individuals who are driving while their licenses are suspended, and it required the police to inventory the impounded vehicle. Norris also testified that the operating procedure for an inventory requires officers “to inventory all portions of the vehicle including closed containers.” Copies of what appear to be the city code were admitted as evidence before the trial court as were copies of the police department’s policy and procedure. An internal police memorandum entitled “DWS/NO INSURANCE TOW PROCEDURES” provides, in part, ‘Tilnventory vehicle including closed containers (if contraband is discovered you can now charge the suspectM)” (Emphasis in original.)

4 We understand the trial court’s ruling in this paragraph as well as the preceding paragraph to reflect an implicit finding that Ford’s request to search the bag was not for the purpose of investigating the boy’s report.

5 ORS 133.693(4) provides:

“Where the motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.”

6 The state’s position when this case was decided by the trial court was that defendants had the burden of proving that they had a protected interest in the duffel bag. Case law decided after this case was presented to the trial court and originally briefed to us clearly establishes that that position is incorrect.

7 Although neither party raised this statute to us, we note that ORS 136.432 provides, in pertinent part:

“A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by:

“(1) The United States Constitution or the Oregon Constitution!.]”

In Ray, we noted that that law “applies retroactively to ‘all criminal actions pending on or commenced after December 5, 1996.’ Or Laws 1997, ch 313, § 38.” However, “!t]he analysis of a defendant’s rights under ORS 131.605 to 131.625 is substantially the same as the analysis of rights under Article I, section 9, of the Oregon Constitution.” Ehly, 317 Or at 76 n 8.

8 The state acknowledges that its argument in this case was “taken largely from the state’s brief in [State v.] Maynard, [149 Or App 293, 942 P2d 851 (1997), rev den 327 Or 448 (1998)]” We rejected similar arguments in Maynard.