Thе state appeals from the trial court’s order sustaining defendant’s motion to suppress evidence obtained as a result of a warrantless search. The issue is whether the court erred in ordering the suppression basеd on its conclusion that the "inventory search” of defendant’s car trunk was unreasonable. 1
On March 31, 1978, police officers were dispatched to a restaurant in Portland to investigate a theft of services. The manager advised the officers that defendant had ordered breakfast — a $1.70 order of waffles, had consumed the meаl and then had said he could not pay for it. The officers asked defendant to step outside the restaurant, whеre he was searched, placed in handcuffs and put in a police car parked directly in front of the restaurant.
The officers became aware that defendant’s car was in the restaurant’s parking lot. 2 It was lаwfully parked five or six spaces distant from the officers’ car. Its doors were locked, as was the trunk, but one window was broken out. The officers obtained the car keys in the search of defendant and proceedеd to conduct a search of the car.
Several articles of clothing and a television set were visiblе in the interior of the car. Some but not all of the articles found in the interior were itemized on the vehicle report. One officer unlocked and opened the trunk of the car. In it he found six telephones, which were lаbelled "not for sale” and "property of Bell *598 Telephone.” The telephones’ wires appeаred to have been ripped out of installed connections. They were seized. Defendant was indicted fоr theft of the phones. ORS 164.045.
The state seeks to justify the search of the locked trunk on the basis that the telephones were discovered in the course of a valid inventory search of a legally impounded vehicle. Dеfendant contends that an inventory search was not justified, that the vehicle was not lawfully impounded, and that, in any еvent, the scope of an inventory search does not extend to a locked trunk.
The Supreme Court in
Cady v. Dombrowski,
Inventory searches are warrantless searches and are
per se
unreasonable, so the stаte bears the burden of justification.
Coolidge v. New Hampshire,
Under those facts, the court concluded that an inventory search of the car’s contents was "reasonably required” prior to having the vehicle towed off the street and impounded. In
State v. Weeks,
In this instance, defendant’s automobile was located in a parking lot used exclusively for the restaurant’s customers. That was not a situation where the car had to be removed from a public highway
(Cady v. Dombrowski, supra);
it was not unattended, obstructing traffic or illegally parked
(South Dakota v. Opperman, supra);
nor was there any indication that the vehicle had been stolen or used in thе commission of a crime so that its retention as evidence was necessary.
Cf. State v. Walden,
*600 Undеr the circumstances, impoundment of defendant’s vehicle was not called for. The inventory search of the vehicle was unlawful, and evidence obtained as a result was properly suppressed.
Affirmed.
Notes
The court concluded:
"*** If the search is justified at all it would have to be on the basis of a routine inventory search. The court concludes that the search of the trunk under the circumstances of this case was unreasonable. ***”
The record is not clear as tо how the officers learned that defendant’s car was present, and they testified at the suppression hearing that they could not remember how they came to know. One officer stated that "defendant possibly said” he wаs living in his car. The trial court found that defendant did not identify the car as his own, willingly surrender his keys to the car nor consent to its search.
The state also relies on
State v. Crosby,