State v. Hartman, 238 Or. App. 582

May 24, 2008, arrest on outstanding warrant; boots, gloves with glass shards, and tools seized from defendant; held in a police holding cell with items later moved to patrol room.
Phelps removed defendant's boots from the holding cell and Bolyard photographed them for later comparison to a boot print at a restaurant burglary.
Affine description: on May 28, 2008, defendant arrested near Burger West burglary; boots stored at county jail; Cooper obtained a warrant on May 29, 2008 to seize the boots; photograph and boot description included in affidavit.
Trial court found Phelps's removal of boots unlawful and excised the photo from the warrant affidavit; nevertheless concluded inevitable discovery; ultimately reversed on appeal.
This court holds the boot seizure was unlawful under Article I, section 9, the photograph tainted probable cause, and the inevitable discovery theory does not save the search.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there a cognizable seizure of the boots?	Hartman argues the boot removal/photo violated rights.	Hartman contends there was no lawful basis for seizure.	Yes, seizure unlawful under Article I, s 9.
Was the photograph of the boots tainted and properly excised from the warrant affidavit?	Hartman: tainted evidence invalidates probable cause.	Hartman: affidavit could be salvaged by excising tainted info.	Photograph tainted; excision left insufficient probable cause.
Would the boots have been inevitably discovered anyway, making the taint harmless?	State: inevitable discovery would justify admission.	Inevitable discovery not established due to inventory limits.	Inevitable discovery not proven; exclusion should apply.

State v. Tiner, 340 Or. 551 (2006) (tattoo photograph not a search; rights forfeited by conviction not applicable here)
State v. Sanders, 343 Or. 35 (2007) (probationers lose certain rights; limbs of constitution constrained)
State v. Hitesman/Page, 113 Or.App. 356 (1992) (exclude tainted information from affidavit; assess probable cause later)
State v. Villagran, 294 Or. 404 (1983) (probable cause standard in affidavits for warrants)
State v. Castilleja, 345 Or. 255 (2008) (affidavit sufficiency after excising tainted material)
State v. Guerrero, 214 Or.App. 14 (2007) (inventory procedures not investigative search)
State v. Johnson, 340 Or. 319 (2006) (tainted observations not necessary to support later warrant)
State v. Miller, 300 Or. 203 (1985) (inevitable discovery doctrine requires proper procedures would have discovered the evidence)