State v. Cherry, 325 P.3d 813

Defendant arrested for giving false information and brought to Marion County Jail; deputy Strubb inventoried his property and removed ten checks from defendant’s pocket.
Checks were from multiple accounts; deputy suspected criminal evidence and gave them to Officer Bidiman, who investigated and filed identity-theft charges.
Defendant moved to suppress the checks and related statements, arguing the warrantless search violated Article I, §9 of the Oregon Constitution and the Fourth Amendment.
State relied at trial on Marion County Policy 3315 (“Inmate Personal Property”) to justify the inventory search and introduced that policy; trial court denied suppression without findings.
On appeal, the state conceded Policy 3315 is overbroad because it authorizes opening all closed containers; the court held the search was not justified under that invalid policy and suppression was required.
The state attempted a new argument on appeal relying on different policies (not introduced below); the court declined to consider that alternative because the record could have developed differently if the state had raised it earlier.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the warrantless search/seizure was lawful under Article I, §9 as an inventory	State: search was a valid inventory under jail policy 3315	Defendant: policy 3315 is overbroad and authorizes investigatory searches and warrantless seizure of evidence	Court: policy 3315 is overbroad; search not justified; suppression required
Whether an alternative county policy (3310) can justify the search on appeal	State (on appeal): deputy acted under Policy 3310 (removing items pre-booking) which permits removing items without opening closed containers	Defendant: state didn’t rely on or prove Policy 3310 below; record would differ if raised	Court: declined to consider new argument because the record might have developed differently; cannot affirm on that basis
Whether appellate court may affirm on a different legal basis than the trial court’s	State: asks court to affirm as right for wrong reason	Defendant: procedural unfairness; insufficient record	Court: may affirm on alternative basis only if record below would support it; here it would not, so refusal to consider alternative was proper
Remedy for reliance on invalid inventory policy	State: N/A at trial (conceded policy invalid on appeal)	Defendant: suppression of evidence obtained under invalid policy	Court: reversed convictions tied to evidence obtained under invalid policy and remanded; unrelated probation case affirmed

State v. Ehly, 317 Or 66 (standard of review for suppression rulings)
State v. Hall, 339 Or 7 (Article I, §9 applies to reaching into pockets)
State v. Atkinson, 298 Or 1 (requirements for valid inventories under Article I, §9)
State v. Guerrero, 214 Or App 14 (inventory scope limited to noninvestigatory purposes)
State v. Nordloh, 208 Or App 309 (overbroad inventory policies invalidate subsequent searches)
Outdoor Media Dimensions Inc. v. State, 331 Or 634 (when appellate courts may affirm on alternative grounds)