STATE OF OREGON, Respondent on Review, v. TAMARA LOUISE FULMER, Petitioner on Review.
(CC 16CR14039) (CA A162730) (SC S066654)
Supreme Court of Oregon
March 5, 2020
366 Or. 224 (2020) | 460 P.3d 486
Argued and submitted November 13, 2019, argued at David Douglas High School, Portland; decision of Court of Appeals reversed, judgment of circuit court reversed, and case remanded to circuit court for further proceedings March 5, 2020
Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine. Police officers determined, during a lawful traffic stop, that defendant‘s vehicle needed to be impounded. The officer asked defendant to step out of the vehicle and she did so, leaving her purse on the front passenger seat. At that time, defendant was free to leave and not under arrest. A second officer inventoried the contents of the vehicle, beginning with the purse, in which he discovered methamphetamine and needles. Defendant was charged with one count of possession of methamphetamine,
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
En Banc
On review from the Court of Appeals.*
Brett J. Allin, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Deputy Defender, Office of Public Defense Services.
Rebecca M. Auten, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
BALMER, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
BALMER, J.
At issue in
A Hillsboro police officer observed defendant driving a vehicle with expired registration tags. The officer initiated a stop, and defendant pulled over. The officer approached defendant and informed her of the reason for the stop. Defendant admitted not only that her registration tags were expired, but also that her driver‘s license had expired and that she did not have insurance. The officer returned to the patrol vehicle, confirmed the information that defendant had given, and began writing a citation. The officer determined that defendant‘s vehicle would need to be towed and impounded, as defendant could not legally drive it without a license or insurance, and it was blocking a bicycle lane. The officer called a second officer to assist.
The first officer was still writing the citation when the second officer arrived. The officers re-approached the vehicle, one on each side. The first officer told defendant that he was impounding her vehicle because her license was suspended, she had no insurance, and the vehicle posed a hazard in its current location. That officer informed defendant that he would need to do an inventory of her vehicle and told her to step out of the vehicle so the second officer could begin that process.
Defendant exited the vehicle with her cell phone and a pack of cigarettes in her hand, but her purse remained on the passenger‘s seat. Defendant neither asked to nor was told that she could remove additional items from the car. She stood near the patrol vehicle while the inventory took place. The second officer began the inventory by looking in defendant‘s purse. In a wallet inside defendant‘s purse, the officer found used syringes and a small amount of methamphetamine.
Defendant was charged with unlawful possession of methamphetamine. She moved to suppress the evidence found in her purse, arguing that the officers had unlawfully searched her purse. She acknowledged that, in Atkinson, this court had recognized an inventory exception to the warrant requirement, but she asserted that the exception did not apply because the officers had not told her that she could remove her purse from her car. The trial court denied defendant‘s motion to suppress, determining that “the inventory search was valid and it was lawfully followed through [the] policy that‘s been implemented by the City of Hillsboro.” The trial court also determined that the officers were not required to ask defendant if she wanted to take her purse with her before conducting the inventory.
Defendant appealed, assigning error to the trial court‘s denial of her motion to suppress. Defendant argued first that the officers unconstitutionally seized her purse when they ordered her out of the vehicle and informed her that her vehicle would be inventoried, because a reasonable person in her situation would have believed that she was not free to remove her personal items from the vehicle at that time, and the administrative seizure exception did not justify that seizure. Defendant also argued that the search of her purse as part of the inventory violated
In affirming, the Court of Appeals majority noted that defendant did not dispute the
On defendant‘s alternative seizure argument, the Court of Appeals acknowledged that “[t]he moment when an officer informs a person who is not under arrest that a vehicle is going to be impounded and asks, directs, or otherwise causes the person to exit the vehicle has not been the subject of much case law.” Id. at 73. The court stated that it generally agreed “with defendant that, in that moment, an officer could engage in conduct that would unlawfully interfere with the person‘s right to remove personal belongings from the vehicle, so as to constitute a seizure of those items distinct from the administrative seizure of the vehicle.” Id. (emphasis in original). The Court of Appeals ultimately concluded, however, that such an interference did not occur in this case, based on the trial court‘s express and implied findings. Id.
Chief Judge Egan dissented, arguing that the majority had read Atkinson incorrectly—that, while Atkinson lays out three conditions necessary for an inventory policy to satisfy constitutional requirements, those three conditions are not sufficient to make an inventory policy constitutional. Id. at 78 (Egan, C. J., dissenting). The courts have a responsibility, the dissent reasoned, to “assur[e] that ‘inventory searches’ do not become licenses for police to conduct warrantless investigatory searches.” Id. The dissent would have adopted defendant‘s rule that, “[b]ecause it is reasonable for an individual to feel inclined or obliged to cooperate with police, *** police always must advise individuals of their right to take property with them prior to an inventory of their vehicle.” Id. at 80.
Defendant renews her arguments in this court. Defendant first argues that, because the officers did not inform her that she could remove personal items from her vehicle, the state cannot rely on the inventory search exception to the warrant requirement articulated in Atkinson. Because we generally agree with defendant on that point, we do not address her alternative argument that her purse was seized when the officers ordered her out of her vehicle and informed her that they were impounding the vehicle and would inventory its contents.
We begin our discussion with an overview of the warrant requirement under the Oregon Constitution and the inventory search exception to that requirement. As a threshold matter, ”
It is well established that a search or seizure conducted without a warrant is per se unreasonable, unless that search or seizure falls within one of the “specifically established and well delineated exceptions” to the warrant requirement. State v. Nagel, 320 Or 24, 36, 880 P2d 451 (1994) (citation omitted). In the absence of a warrant, the state bears the burden of establishing that the search or seizure falls under one of those exceptions. State v. Walker, 350 Or 540, 553, 258 P3d 1228 (2011). Evidence obtained in the absence of a warrant and that does not fall under any exception is suppressed in
In Atkinson, we considered whether police were permitted to conduct an inventory of a vehicle that had been abandoned by the side of the road, where, over the course of several hours, multiple “unsuccessful efforts were made to contact the car‘s owner to retrieve the vehicle prior to having it towed away.” 298 Or at 3. Citing Opperman and other federal cases, the court stated that “a policy may be adopted and uniformly administered to inventory the contents of ordinary vehicles in order to protect private property and for ancillary purposes.” Id. at 7. The court went on to describe the “[t]hree principal purposes often *** put forward to justify a governmental policy of inventorying impounded personal property“—protecting the owner‘s property while that property is in police custody, reducing and tending to prevent the assertion of false claims against police, and officer safety concerns. Id. at 7-8. The court concluded, based on those three policy concerns, that, for an inventory to be valid, the vehicle must be “in lawful administrative custody *** [and the] inventory must be conducted pursuant to a properly authorized administrative program, designed and systematically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory.” Id. at 10.1 Those three requirements were correctly summarized by the Court of Appeals: “(1) the vehicle is lawfully in police custody, (2) the inventory policy is properly authorized and designed and systematically administered so that the inventory involves no exercise of discretion by police, and (3) the officer directing or taking the inventory does not deviate from the established policies or procedures.” Fulmer, 296 Or App at 68 (internal quotation marks omitted).
This court in Atkinson, however, did not hold that compliance with those requirements would mean that a search conducted pursuant to a valid inventory policy always would be constitutional. Rather, the court took care to note that compliance meant only that “such a policy is not inherently ‘unreasonable.‘” 298 Or at 8. For that reason, Atkinson can be read as setting out the minimum standards to which law enforcement must adhere when relying on the inventory exception to the warrant requirement, but leaving open the possibility that a policy that complies with those minimum standards may, in circumstances other than those present in Atkinson, yield results that may not pass constitutional muster. And, significantly, the court in Atkinson was not presented with the question of the reasonableness of an inventory search when the vehicle occupant is present and not under arrest.
The same day that this court decided Atkinson, it also decided State v. Perry, 298 Or 21, 688 P2d 827 (1984), in which it emphasized the narrow permissible scope of an inventory search in noncriminal or nonemergency situations, compared to a search based on probable cause or reasonable suspicion developed in a criminal investigation. The
Since Atkinson and Perry, this court has revisited the contours of the inventory search exception several times, examining the purposes of the exception and its application to ensure consistency with those purposes. In State v. Lippert, 317 Or 397, 856 P2d 634 (1993), the court relied on Perry in concluding that the principles articulated there did not apply where the intoxicated defendant challenged evidence found in his pocket, but reaffirmed that “[t]he result would be different if the item searched were not a pocket but instead were something that the person to be detoxified was not going to take into the secure facility,” such as a suitcase, as in Perry. Lippert, 317 Or at 405 n 6. In State v. Boone, 327 Or 307, 314, 959 P2d 76 (1998), the court held that a local policy implicitly conferred the authority to conduct an inventory search where the policy expressly authorized the impoundment of a vehicle and that that implied authorization satisfied the requirements of Atkinson. The court acknowledged, however, that Atkinson expressly provided that “[o]bjects found within the inventoried vehicle should be scrutinized only to the extent necessary to complete the inventory.” Boone, 327 Or at 314 (internal quotation marks omitted). And in State v. Connally, the court again stated that “[t]he purpose of the inventory is not to discover evidence of a crime,” but rather to serve civil and administrative ends. 339 Or 583, 587, 125 P3d 1254 (2005). The court emphasized that the scope of the inventory depends on what “is necessary to serve the inventory‘s purposes.” Id.
Read together, Atkinson and its progeny stand for the proposition that the inventory exception to the warrant requirement applies only when its use serves the administrative purposes that justify the exception and is consistent with the rights protected by
In sum, the exceptions to the warrant requirement—including the inventory
We turn, then, to the question whether the use of the inventory exception to the warrant requirement here was within the lawful bounds that have been delineated by our earlier decisions as the justification for that exception. Because the inventory exception cannot exceed the scope of the purpose for that exception, we consider whether the governmental purposes justifying inventories as outlined in Atkinson are furthered when officers do not give occupants who are present and not under arrest notice that they may retrieve readily removable personal belongings before an inventory is conducted.
As discussed, we have considered inventory searches in circumstances where the defendant was unavailable to remove personal items from the vehicle. See Atkinson, 298 Or 1 (vehicle abandoned and multiple unsuccessful attempts made to contact owner); Perry, 298 Or 21 (defendant intoxicated); Lippert, 317 Or 397 (same); Connally, 339 Or 583 (defendant under arrest). But we have not previously addressed the circumstances here, where the vehicle occupant‘s belongings were searched in front of her when she was present and competent to provide for an alternative disposition of her property.
And that difference is the crux of defendant‘s constitutional argument. She asserts that exceptions to the warrant requirement of
We agree with defendant. As this court stated in Atkinson, the first two of the three “principal purposes” justifying the court-created inventory exception to the warrant requirement are to “protect the owner‘s property while in police custody” and to “reduce and tend to prevent the assertion of false claims against police.” Atkinson, 298 Or at 7. Courts in other jurisdictions have pointed out that, if the justification for an inventory is protection of a person‘s property and reduction of false claims, those aims are likely better served by ensuring that as little property as possible makes its way into police custody. See, e.g., Opperman, 428 US at 375 (noting specifically that “[t]he owner, having left his car illegally parked for an extended period, *** was not present to make other arrangements for the safekeeping of his belongings“); State v. Mangold, 82 NJ 575, 586, 414 A2d 1312, 1317 (1980) (“If in fact the principle [sic] justifications for an inventory are to protect the property in the vehicle and to shield the authorities from false claims relating to those items, it would seem only reasonable to consult with the owner *** when he is present ***“).3
Given the purposes
scope of an exception to the warrant requirement is limited by the purposes for that exception, we conclude that an inventory conducted without notice to the occupant who is present that she may remove readily retrievable items violates
The state does not disagree that defendant‘s
The state‘s concern appears to be overblown. As discussed above, a number of states have held that officers must notify the occupant of a vehicle that he or she may retrieve personal belongings before an inventory is conducted, and nothing has been brought to our attention suggesting that the appropriate use of inventories in those jurisdictions has been hindered. Defendant also points to two Oregon Court of Appeals cases involving local inventory policies that require advising citizens about private property before property is impounded and inventoried. See State v. Williams, 227 Or App 453, 455-56, 206 P3d 269 (2009) (describing
circumstances where officers had been required by local policy to permit a vehicle occupant to remove items from the car); State v. Bernabo, 224 Or App 379, 381-82, 197 P3d 610 (2008) (excluding evidence discovered during an inventory search where officers had advised defendant of his right to remove items from the vehicle prior to the towing of the vehicle, but after already searching the vehicle, contrary to local policy).5 Those policies indicate, at the very least, that several Oregon jurisdictions have already determined that a useful inventory policy can be adopted that includes a notification requirement.
Defendant does not ask us to reconsider the inventory exception set out in Atkinson,
In sum, we conclude that the application of the inventory exception in this case violated defendant‘s rights under
denying her pretrial motion to suppress, and the resulting judgment of conviction must be reversed.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.