Dеfendant appeals from his convictions for burglary, ORS 164.215; attempted burglary, ORS 161.405(2)(d); criminal mischief, ORS 164.365; criminal trespass, ORS 164.245; and possession of burglary tools, ORS 164.235. Defendant argues that the trial court erred in denying his motion to suppress evidence obtained following his arrest on an unrelated warrant on the ground that the evidence was obtained in violation of his rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. 1 In particular, defendant asserts that his rights were violated when an officer entered the holding cell where defendant was lodged, removed defendant’s boots, and photographed those boots in order to compare the photograph to a boot print found at a recent crime scene. It follows, defendant reasons, that a search warrant that police later obtained to conduct a second seizure of his boots should not have issued, because that warrant was tainted by an affidavit that relied on the photograph of his boots taken after the first seizure. We reverse and remand.
I. FACTS
We take the uncontroverted facts from our review of the record, and where the trial court made findings of fact, we are bound by those findings to the extent that they are supported by evidence in the record.
State v. Stevens,
It was the policy of the police department to detain individuals in the holding cell for no more than four hours before transferring them to the county jail. Outside the holding cell was a small room, called the “patrol room,” where personal property belonging to individuals lodged in the holding cell would be inventoried pursuant to a police department inventory policy. After Phelps placed defendant in the holding cell, he took the items that he had seized from defendant into the patrol room and placed them on a counter top. Phelps intended to transport those items to the jail with defendant, so that the items could be inventoried under that institution’s policy.
Soon after Phelps placed defendant in the holding cell, Bolyard arrived and entered the patrol room. When Bolyard entered that room, the items that Phelps had taken from defendant were still on the counter top, and Bolyard, seeing the tools and the gloves embedded with glass shards, suspected that defendant had been involved in the burglary of a restaurant on May 23, 2008. Bolyard had investigated that burglary and found that someone had opened the electrical circuit box outside the restaurant and tampered with the electrical system, that the telephone box had been opened and tampered with, and that a window had been broken. According to Bolyard, the window appeared to have been broken from the outside, and a partial boot рrint was found inside the restaurant. Bolyard suspected that defendant had been involved, because the tools taken from defendant were consistent with the kinds of tools that could have been used to tamper with the electrical and phone systems. Moreover, the gloves seized from defendant had glass shards embedded in them, which, in Bolyard’s opinion, was consistent with defendant having crawled through the broken window at the restaurant.
Based on the above-described background information, Bolyard asked Phelps to enter defendant’s cell, remove defendant’s boots, and bring the boоts out into the patrol *586 room so that Bolyard could photograph them. Phelps testified that individuals lodged in the holding cell were allowed to wear their street clothes and that he did not normally remove a detainee’s footwear. Phelps nevertheless entered the cell, removed defendant’s boots, and brought them out to Bolyard, who then photographed them. Bolyard testified that he had asked Phelps to retrieve defendant’s boots because he wanted to photograph them for comparison with the boot print found at the restaurant. Bolyard wanted to рhotograph the boots at the police department before defendant’s transfer to the jail because “we hate to think that something might happen on the way to the jail, but you know, there’s always that possibility.” Before defendant was transferred to the jail, the officers returned his boots to him. Defendant was then taken to the jail and released later that day.
Four days later, on May 28, 2008, defendant was apprehended near the site of another restaurant burglary and arrested. Defendant was taken directly to the county jail, where his personal property — including his сlothing and boots — were taken from him pursuant to that institution’s inventory policy. While defendant’s clothing and boots were stored in a property locker at the jail, Officer Cooper applied for a warrant to seize defendant’s boots from the locker. The affidavit in support of that warrant included the photograph of defendant’s boot that Bolyard took on May 24, along with a photograph of a boot print found at an insurance office that had been burglarized on May 14, 2008. The affidavit also included a description of the boots that Deputy Harrison, who had observed the boots while they were in defendant’s locker at the jail, gave to Cooper. 3 Cooper averred in the affidavit that, according to Harrison, the boots had “ ‘[t]he original’ writing design and a rectangle-type pattern design containing a cross with the words ‘oil,’ ‘fat,’ ‘alkali,’ and ‘resistant’ printed upon the middle of the sole.” The warrant issued and specifically authorized only the seizure of defendant’s boots from the property locker. Cooper executed the warrant on May 29, 2008.
*587 II. THE MOTION TO SUPPRESS HEARING
Defendant was indicted for a variety of offenses in connection with the burglary of the insurance office on May 14, 2008, and the burglary at the second restaurant on May 23, 2008. Defendant moved to suppress all the evidence found on his person during both of his arrests, as well as the photograph of his boots taken by Bolyard on May 24. 4 Defendant argued that the warrantless search of his boots on May 24 was not authorized by any exception to the warrant requirements of Article I, section 9, and the Fourth Amendment. Defendant also argued that that search had been conducted as part of Bolyard’s investigation of the first restaurant burglary and was not authorized by the police department’s inventory policy. Further, defendant argued that, even if the search had been authorized by that policy, the policy was constitutionally deficient because it provided unbridled discretion to the officers. Most importantly, defendant emphasized, there was no provision in the policy that permitted photography of personal property belonging to persons lodged in the holding cell. Accordingly, defendant reasoned, the warrant that Cooper obtained was defective because the supporting affidavit relied on the photograph Bolyard unlawfully took and, without that photograph, the issuing magistrate could not have concluded that there was probable cause to believe that defendant’s boots constituted evidence of a crime.
In response, the state argued that defendant’s boots would inevitably have been discovered on May 24, 2008, if Bolyard had followed defendant to the county jail instead of photographing the boots at the police department. The state asserted that Bolyard could have taken the photograph at the jail; thus, the circumstance in which he took the рhotograph while defendant was in the holding cell did not require suppression. The state relied on Bolyard’s testimony that, if he had not photographed defendant’s boots at the police department, he would have followed defendant to the jail and taken the photograph there, while defendant’s personal property was being inventoried. The state also argued that, even if the photograph were excised from the supporting affidavit, that *588 affidavit still would have furnished probable cause to issue the warrant to seize defendant’s boots.
The trial court denied defendant’s motion to suppress. The court first concluded that Phelps’s seizure of defendant’s boots on May 24, 2008, was unlawful:
“There is no provision in the [police department’s] ‘custody search’ policy, exhibit 2 that provides for the seizure of the inmate’s clothing or shoes. Indeed, the officer testified that the arrestee’s shoes were not normally removed as the [police] facility was merely a 4-hour holding facility before the arrestee could be transferred to the [county jail]. Therefore, the seizing and photographing of the defendant’s boots on May 24, 2008 constitutеd an unlawful search.”
The court then determined that all references to the photograph should have been excised from the affidavit and that, without those references, the affidavit did not establish probable cause to conclude “that the boot print left at the [insurance office] scene matches the boots worn by defendant on May 28.” The trial court found that the photograph of the boot print taken at the insurance office was not sufficiently detailed to allow a match between it and Harrison’s oral description of defendant’s boots.
Nonetheless, the trial court concluded that the boots would have inevitably been discovered. The court explained:
“I start by finding that on May 28, 2008[,] Officer Harrison of the [county jail] was properly following [the sheriffs office] general order J7.06 while inventorying defendant’s boots after his arrest. * * * I find that on both May 24 and May 28, this policy was in place and was being followed. I find that on May 24, defendant was lawfully arrested on a warrant and that he was lodged in the [county jail]. Under proper, predictable procedures, his boots would have been seized that day. Defendant was released on May 24 and arrested again wearing the same boots on May 28. Officer Bolyard testified that he was familiar with the [county jail] inventory policy * * *[.] Bolyard testified that the boots would have been seized and inventoried * * * on May 24 if he had not seized them at the [police department]. The boots ended up in defendant’s personal property locker at [the county] jail on that day. Hence the boots ended up at *589 the same destination they would have ended up at if the regular [county] inventory policy would have been followed.
“* * * Based on Officer Bolyard’s affidavit and testimony on July 15 and based on Officer Phelps’[s] testimony, I find that on May 24, the police had reasonable suspicion and probable cause to believe that defendant was involved in the Burger West burglary and were investigating him for that burglary. * * * Therefore, if the boots had not been seized and photographed at the [police department], Officer Bolyard would have followed defendant to the [county] jail and either examined or photographed the boots during the booking and inventory process. At that point the boots would have been in plain view and Officer Bolyard could have lawfully observed the tread pattern and photographed the boot soles. During the inventory, the boots would have been handled in such a manner that the soles of the boots would have been visible. * * * The observation of the boot soles in plain view during the [county] book-in procedure is a proper and predictable investigation procedure that would have been utilized. I find that the inevitable discovery exception has been proven by the state by a preponderance of the evidence.
“I also find that on May 24, Officer Bolyard would have had probable causе to obtain a search warrant for the boots as evidence of the Burger West burglary. If Officer Bolyard would not have photographed the boots at the [county] jail, he would have sought and obtained a search warrant to seize the boots as evidence of the May 23 Burger West burglary.”
Defendant tried his case to a jury and was convicted; this appeal followed.
III. ANALYSIS
Defendant renews his arguments before this court, focusing on Phelps’s seizure of his boots and the use of the photograph taken by Bolyard after that seizure to support the warrant that Cooper obtained. In response, the state argues that the trial court erred in concluding that Phelps’s act of taking defendant’s boots was a search or a seizure. In any event, the state urges, the trial court correctly found that Bolyard would have inevitably discovered defendant’s boots, because Bolyard would have followed defendant to the jail *590 and would have photographed the boots after they were taken from defendant as part of the jail’s inventory process.
We first address whether a cognizable seizure of defendant’s boots occurred when the officers took them from defendant and photographed them. The state relies on
State v. Tiner,
“Similarly, probationers and other conditional releasees who have been lawfully convicted of a felony do not enjoy the full panoply of rights that the general public possesses. * * * [A]t least one permissible restriction on a convicted felon’s constitutional rights is permanent, whether that person has been sentenced to a term of imprisonment or to probation: Felony offenders permanently lose their state (and, perhaps, federal) constitutional right to bear arms as a consequence of conviction. * * *
“It follows from the foregoing that ORS 137.076 does not necessarily deprive felony offenders (be they prisoners, persons on supervision, or probationers) of certain of their constitutional rights in general, or of their Article I, section 9, rights in particular, by subjecting them to a specific form of search and seizure as a consequence of their convictions.”
The state distills from those cases the principle that “the privacy rights of a person lawfully arrested and waiting to be booked are * * * significantly diminished,” and, thus, *591 Phelps’s removal of defendant’s boots did not violate any right of defendant under Article I, section 9. We disagree. Both Tiner and Sanders rest on the theory that an individual convicted of a felony forfeits particular rights under the Oregon Constitution, including the right under Article I, section 9, to be free from certain searches and seizures. Here, defendant was not even arrested for a felony, much less convicted of one and, thus, Tiner and Sanders are inapposite. It follows that the trial court correctly concluded that Phelps’s removal of defendant’s boots was a seizure under Article I, section 9. Moreover, because the state does not assert that the seizure was authorized by any exception to the warrant requirement, the trial court correctly concluded that the seizure was unlawful. 5
The trial court also correctly excised the photograph of defendant’s boots from the affidavit in support of the warrant. When an application includes constitutionally tainted information, the proper remedy is for the magistrate and reviewing court to excise from the application all such informatiоn and to determine whether the remaining information is sufficient to establish probable cause.
State v. Hitesman/Page,
The affidavit in support of the warrant to seize defendant’s boots in this case included a recitation of the circumstances of defendant’s arrests on May 24 and May 28, as well as a photograph of a boot print taken at the insurance office and Harrison’s oral description оf the words imprinted on the sole of defendant’s boots. The photograph taken at the insurance office is blurred and shows the tread of the boots, but none of the words or distinctive marks that Harrison identified. Unlike the photograph taken by Bolyard — which clearly shows both the tread and the lettering — the photograph taken at the insurance office would not have enabled a magistrate reasonably to conclude that the boot print in that photograph matched the boots that Harrison described, because nothing in Harrison’s description identified the tread of the boоts, the only feature visible in the insurance office photograph. Accordingly, the trial court did not err in concluding that the affidavit in support of the warrant was insufficient to establish probable cause.
We turn, then, to the state’s alternative argument that, regardless of the lawfulness of Bolyard’s and Phelps’s actions, defendant’s boots would have inevitably been seized — and photographed — when he was taken to the county jail on May 24. The trial court found that, if Bolyard had not photographed defendant’s boots in the holding cell, he would have followed defendant to the jail wherе the boots would have been plainly visible during an inventory of defendant’s personal property. Thus, the court reasoned, Bolyard could have both observed the tread and photographed the boots at that time. 6 Alternatively, the trial court found that, if Bolyard had not photographed the boots when he did, he would have applied for a warrant to do so and that warrant would have been issued. We disagree with both conclusions.
*593
The “inevitable discovery” doctrine “permits the [state] to purge the taint of illegally obtained evidence by proving, by a preponderance of the evidence, that such evidence inevitably would have been discovered, absent the illegality, by proper and predictable police investigatory procedures.”
State v. Miller,
In pertinent part, thе police department inventory policy provides:
“A. When an inmate is lodged into the [county jail], all personal property including clothing, jewelry, money, etc. will be taken, receipt given and stored.
* * * *
“H. Inmate shoes and clothing will be placed in a plastic storage box and stored securely in the Property Room *594 with restricted access with no inmate access in a well ventilated room. Inmates may release property if the inmate has filled out a property release form.”
As we have emphasized, none of the purposes of an inventory identified by
Atkinson
“involves searching for evidence of a crime.”
Guerrero,
Ultimately, the state argues — and the trial court agreed — Bolyard could have observed defendant’s boots during the inventory because they were in “plain view” and, thus, it was inevitable that Bolyard would have discovered that the boots were evidence pertinent to the first restaurant burglary on May 23. Again, we disagree. As discussed, an inventory is not an investigative search, and using an inventory for such a purpose runs afoul of the constitutional limitations applicable to inventory policies. Bolyard testified, and the trial court found, that Bolyard would have attended the inventory for the purpose of obsеrving the boots as part of his investigation of the first restaurant burglary. Thus, Bolyard would not have been present at that inventory but for the criminal investigation; indeed, Bolyard was employed by the police department, not the county sheriffs office and, thus, he would not have been the official conducting the inventory in any event. It is those facts that distinguish this case from cases where evidence of a crime is lawfully discovered during an inventory of a defendant’s personal property.
See, e.g., Guerrero,
The trial court alternatively concluded that, if Bolyard had not asked Phelps to seize defendant’s boots in the holding cell, Bolyard would have applied for and obtained a warrant to seize defendant’s boots on May 24. The trial
*595
court relied on
State v. Johnson,
“the evidence obtained from that search (i.e., the tide table evidence) was admissible because thе state had ‘purged the taint’ of that unlawful search by showing that the tide table evidence inevitably would have been discovered. Specifically, * * *
“ ‘[h]ad the * * * computers not been seized, or had the original request for the search warrant been denied, the investigating officers would have subsequently sought a separate search warrant for the house, including a request to seize computers. The execution of a search warrant for the house is a proper and predictable investigation procedure that would have been utilized. * * * The tide chart information from the computer of the defendant would not have been deleted before the seizure of that computer.’ ”
Id. at 327. The Supreme Court affirmed, explaining:
“Although it is true that investigators did refer to observations made during the unlawful February 28, 1998, search when, on March 12,1998, they swore out an affidavit seeking a second warrant to search the home, those observations were not necessary to establish probable cause to search the residence or to seize computers from the residence. There can be no real doubt that, as the evidence showed and the trial court found, even if the police had not performed the February 28, 1998, search at all, they could have, and ultimately would have, produced an affidavit that established *596 probable cause to search defendant’s residence for evidence in Fraser’s murder.”
(Footnotes omitted; emphasis added.)
As the trial court correctly concluded in this case, without the unlawfully obtained photograph of the boots, Cooper’s affidavit would have been insufficient to establish probable cause to seize defendant’s boots.
See
Reversed and remanded.
Notes
Defendant also assigns error to the trial court’s instruction to the jury that it could convict defendant by less than a unanimous verdict. We reject that assignment of error without discussion.
See State v. Bowen,
Defendant has not challenged the lawfulness of that encounter.
Defendant has not challenged the lawfulness of Harrison’s observation of the boots while they were stored in his property locker.
Defendant was not indicted for the burglary of the first restaurant.
The state further argues that the bottom of defendant’s boot is similar to a fingerprint and, thus, defendant had a reduced privacy interest in the bottom of his boot. The state relies on ORS 181.511, the statute authorizing the taking of fingerprints by police under certain circumstances, for this proposition. We reject the state’s argument because, as the text of ORS 181.511 demonstrates, that statute simply authorizes certain police actions, it does not purport, nor could it purport, to alter the quantum of the privacy right afforded defendant under Article I, section 9.
The record does not establish whether an inventory of defendant’s personal property in fact took place on May 24,2008.