State v. Lovaina-Burmudez, 257 Or. App. 1

Background

Defendant was convicted on multiple counts of second-degree robbery, felon in possession of a firearm, and unauthorized use of a vehicle following police suppression hearing on evidence obtained after arrest and transport to hospital.
Police linked defendant to the August 18 taco truck robbery and the August 24 Red Apple Bar and Grill robbery; officers stopped a van, defendant fled, and an officer shot him, after which he was taken to OHSU.
During ambulance transport and at the hospital, paramedics and investigators removed and later inventoried defendant’s clothing and shoes, and cash was found in his pants pocket.
Detective Doble seized and initially handled the clothing, shoes, and cash under an inventory framework, later photographing shoes and soles and treating items as evidence for prosecution.
A February 2010 search warrant sought to seize remaining clothing and shoes; the affidavit relied in part on boot sole comparisons derived from the earlier photographs.
The trial court denied suppression; on appeal, it was held that the clothing and shoes were not lawfully seized incident to arrest for taco truck robbery, but the cash was properly inventoried; photographs of the shoes and other later processing were unlawful as exceeding inventory scope, and the inevitable discovery argument under the February 2010 warrant failed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the seizure of clothing and shoes lawful incident to arrest?	State: items seized incident to taco truck arrest valid.	Defendant: no probable cause linking items to taco truck robbery; no valid incident-to-arrest nexus.	Unlawful seizure; not valid incident to arrest.
Was the initial discovery of cash via inventory properly authorized under PCC policies?	State: cash discovered during a lawful inventory procedure.	Defendant: inventory applicable only when in police custody; premature on August 24.	Initial securing of cash within inventory scope was lawful.
Did Doble exceed inventory scope by processing items as evidence (e.g., photographing shoes)?	State: processing within inventory policy, leading to admissibility of related evidence.	Defendant: photographing and retaining items as evidence exceeded inventory purposes.	Yes; processing as evidence exceeded inventory scope, making those items unlawfully seized.
Could the disputed items be admitted under inevitable discovery via the February 2010 warrant?	State: inevitable discovery would authorize admissibility regardless of initial unlawful seizure.	Defendant: state failed to prove items would have been lawfully seized under the 2010 warrant absent the illegality.	Ineffective; the state failed to prove inevitability, so suppression stood for those items.
Are the reversible nonunanimous verdicts an issue in this case?			Nonunanimous verdicts are unconstitutional; addressed but rejected without discussion in this case context.

Key Cases Cited

State v. Ehly, 317 Or 66 (Or. 1993) (bound by trial court’s factual findings if supported by evidence)
State v. Owens, 302 Or 196 (Or. 1986) (limits on seizure incident to arrest; nexus required)
Johnson I, 177 Or App 244 (Or. App. 2001) (inevitable discovery doctrine requires evidence would have been discovered absent illegality)
Johnson II, 335 Or 511 (Or. 2003) (reaffirmed burdens for inevitable discovery; rejected storage/release excuses)
Miller, 300 Or 203 (Or. 1985) (inevitable discovery requires proper, predictable procedures; not merely possible)
State v. Atkinson, 298 Or 1 (Or. 1984) (limits on how far inventory procedures may extend into evidence processing)
State v. Guerrero, 214 Or App 14 (Or. App. 2007) (inventory purposes do not authorize searching for crimes)
State v. Davis, 295 Or 227 (Or. 1983) (warrantless searches require an exception to the warrant requirement)
State v. Hall, 339 Or 7 (Or. 2005) (burden in inevitable discovery cases; standard of proof)
State v. Larsen, 89 Or App 260 (Or. App. 1988) (evidence found during unlawful seizure; inevitable discovery considerations)
State v. Hartman, 238 Or App 582 (Or. App. 2010) (bootstrapping concerns in inevitable discovery context)