Defendant, who was convicted following a conditional plea of guilty to one count of possession of heroin, ORS 475.854, and one count of possession of methamphetamine, ORS 475.894, appeals. He assigns error to the trial court’s denial of his motion to suppress (1) physical evidence of methamphetamine possession, and derivative inculpatory statements, obtained after an officer elicited defendant’s consent to remove an item from his pocket; and (2) evidence of heroin possession discovered during a subsequent booking inventory of items, including the contents of closed containers, in defendant’s possession. We reject without published discussion defendant’s challenge pertaining to the methamphetamine-related evidence, but, as explained below, we conclude that the inspection of the contents of the closed containers, two “canister vials,” was not authorized by the applicable inventory policy and, thus, was unlawful. Consequently, because defendant’s conditional guilty plea was predicated on a suppression ruling that was, in part, erroneous, we reverse and remand for further proceedings. See, e.g., State v. Tannehill,
The circumstances material to the discovery of the heroin-related evidence in the course of the booking inventory are undisputed. After defendant was arrested following the discovery of methamphetamine-related evidence on his person,
The deputy asserted and believed that, in opening the canisters and inspecting their contents, he was acting in accordance with Marion County Sheriffs Office Policy 3315, pertaining to “inmate personal property” (Policy 3315). That policy establishes “written guidelines for the receiving and storing [of] inmate personal property” and is intended to “ensure that all inmate personal property, including monies, is received, recorded, stored, and released in a safe, secure and systematic manner in accordance with the law.” Under that policy, as pertinent here, “when taking custody of a prisoner’s property for temporary storage,” deputies engaged in the inmate booking/intake process are required (subject to certain exceptions) to
“[o]pen closed containers designed to typically carry identification, cash, valuables, medications or contraband.”3
(Emphasis added.) Unlike many other “designed to hold”circumscribed inventory policies, Policy 3315 does not include any illustrative reference to examples of items encompassed within its scope.
After being charged with one count of possession of methamphetamine and one count of possession of heroin, defendant, as noted, moved to suppress, inter alia, the heroin found in the one “canister/vial.” He argued, in part, that the opening and inspection of the contents of the canisters exceeded the authorized scope of the inventory policy because the canisters were not items — akin to purses, wallets, or suitcases — that were “designed to typically carry” valuables or contraband. The trial court denied suppression, reasoning that, because “[t]he vials opened at the jail were of a type that could contain contraband” (emphasis added), the “search of the vials was legal.”
Defendant then entered into a conditional plea of guilty to both of the charged offenses. The addendum to the plea petition specified that the purpose of the conditional plea was “to reserve the defendant’s right of review of the trial court’s denial of his Motion to Suppress.” Thus, the conditional plea was an integrated whole — it did not purport to differentiate between the two charges and to condition the plea as to either of those charges on the ultimate appellate outcome with respect to the suppression of evidence relating only to that charge.
On appeal, defendant’s argument as to the heroin-related evidence is unadorned: (1) Policy 3315, by its terms, authorizes the opening only of those “closed containers [that are] designed to typically carry identification, cash, valuables, medications or contraband” (emphasis added); and (2) although the trial court found that the canisters “could contain contraband” (emphasis added), “designed to typically
We note, at the outset, that the issue presented in this case is materially distinct from that presented in State v. Cordova,
In Taylor, we reversed the trial court’s determination that the contents of a closed cigarette box that the police had seized from the defendant’s pocket and searched at the time of his arrest would inevitably have been lawfully discovered pursuant to a subsequent jailhouse booking inventory. In so holding, we concluded that the purportedly applicable inventory provision was unconstitutional as overbroad in that it was “not, in fact, limited to opening only those containers that are objectively likely to contain contraband[,]” but, instead, required an officer “to search property that he or she deem[s] appropriate,’ without regard to whether the search
Here, in contrast, the pivotal question is not whether the terms of Policy 3315 are unconstitutionally overbroad or permit some impermissible exercise of officer discretion. Rather, the issue is whether the canisters fell within the scope of the policy’s mandate — viz., whether the canisters were “closed containers designed to typically carry identification, cash, valuables, medications or contraband.” Accord, e.g., Keady,
In resolving that question, we note that this case is unlike most involving the application of a “designed to hold” or “designed to carry” inventory provision. That is so both because of the content of the operative provision here and because of the character of the closed containers at issue here. With respect to the content of the policy, this is — we believe — the first time that the court has encountered a provision requiring an inventory of closed containers “designed to typically carry” various items. (Emphasis added.) The significance of the additional adverb is inscrutable, in that, as a practical matter, appellate decisions construing and applying “designed to carry” (or “to hold”) inventory provisions have, effectively, understood them to incorporate a “typically” limitation. See, e.g., State v. Bean,
The containers at issue — the canisters — are also atypical. Many of our “designed to carry”/“designed to hold” precedents involved either: (1) containers that are classically designed to hold valuables, in that that is their manifest primary purpose — e.g., fanny packs (Bean,
Not surprisingly, none of our precedents is precisely analogous, but Swanson is most similar. In Swanson, we addressed whether, in opening and inspecting the contents of a “purse accessory kit,” an officer had exceeded the scope of an inventory policy’s mandate that “[pjurses, wallets, fanny packs, backpacks, and other similar items designed to contain valuables shall be opened and their contents shall be inventoried.”
“The trial court’s conclusion, apparently based on the judge’s personal understanding that women often do use such containers to carry valuables, begs the essential question of whether the container was designed to do so. Without the container in evidence and based solely on [the officer’s] description of it, the trial court lacked a basis for making an implicit finding that the container was ‘designed to contain valuables.’ ”
Id. at 484-85.
We return to the uncontroverted facts of this case. Here, as in Swanson, the containers at issue are not in evidence, and the deputy who conducted the inventory did not testify that the canisters were “designed to carry” valuables or contraband. Neither in itself is necessarily dispositive
In sum, and consistently with Swanson, the record developed at the suppression hearing was inadequate to establish that the canisters at issue here were “closed containers designed to typically carry identification, cash, valuables, medications or contraband.” Further, even if the record could somehow permit reasonable implementing officers to draw differing inferences as to an “ambiguous” closed container’s “designed to” purpose, to sustain the inspection of the contents of such an object would interject individual variability and impermissible discretion into the policy’s application. See, e.g., State v. Atkinson,
Tannehill is dispositive here. Although we have affirmed the trial court’s suppression ruling with respect to the evidence on which defendant’s conviction for possession of methamphetamine was based, we have also reversed the trial court’s suppression ruling with respect to the heroin-related evidence. As noted, see
Reversed and remanded.
Notes
That evidence included “dime-size plastic baggies” with methamphetamine residue. Upon discovering the baggies, police handcuffed defendant and advised him of his Miranda rights, and the ensuing continuation of the search of defendant’s person yielded a set of digital scales “commonly used for weighing narcotics” and two glass smoking pipes. Defendant admitted that he had used the baggies to hold his purchases of methamphetamine and had used the scales to confirm the amount of the methamphetamine purchased.
The quoted description, replicating the intake deputy’s testimony at the suppression hearing, was the only evidence presented to the trial court — and, thus, the
It appears that that language may he the product of our analysis and holding in State v. Guerrero,
See, e.g., State v. Keady,
*588 Policy 3315 does, however, include a definition of “closed containers” generally: “Carrier[s] or holder[s] whose contents are not exposed to view.”
The trial court’s “could contain” determination was, and is, effectively a non sequitur in that it did not address the operative “designed to typically carry” standard. In many cases, the trial court’s failure to make such an essential determination would necessitate a remand. Here, however, the predicate facts pertaining to the canisters’ characteristics are uncontroverted, see
It is possible that the inclusion of “typically” was intended to import a further, and disjunctive, basis for conducting an inventory of a closed container — viz., that the container is “objectively likely to contain” valuables and contraband. Guerrero,
Whatever the unexpressed intent, however, the text of Policy 3315 — “closed containers designed to typically carry” (emphasis added) — is not plausibly susceptible to such a construction. As a matter of fundamental grammar — and plain English — “designed to typically carry” is an adjectival phrase modifying the object “closed container,” and the prepositional phrase “to typically carry” in turn modifies “designed.” “[T]ypically carry” does not describe an independently sufficient basis for an inventory under Policy 3315.
Accord State v. Mundt/Fincher,
ORS 135.335(3) provides:
“With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea.”