State v. Atkinson

• Decision Date: 04 November 1983
• Docket Number: 28547,Nos. 28525,27548,s. 28525
• Citation: 64 Or.App. 517,669 P.2d 343
• Parties: STATE of Oregon, Appellant, Cross-Respondent, v. James Henry ATKINSON, Respondent, Cross-Appellant. ; CA A22274.
• Court: Oregon Court of Appeals

Page 343

669 P.2d 343

64 Or.App. 517

STATE of Oregon, Appellant, Cross-Respondent, v. James Henry ATKINSON, Respondent, Cross-Appellant.

Nos. 28525, 28547, 27548; CA A22274.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted Sept. 17, 1982.

Resubmitted In Banc June 8, 1983.

Decided Sept. 21, 1983.

Reconsideration Denied Nov. 4, 1983.

John Daugirda, Deputy Public Defender, Salem, argued the cause for appellant, cross-respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent, cross-appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

BUTTLER, Judge.

Defendant cross-appeals pursuant to ORS 138.040 from a pretrial order denying part of his motions to suppress evidence in three consolidated burglary cases; the state's appeal from the same order was dismissed on its motion. ¹ The issue on the cross-appeal is whether the "inventory search" of the glove compartment of a properly impounded automobile, conducted pursuant to the standing policy of the Polk County Sheriff's Department, violates Article I, section 9, of the Oregon Constitution ² or the Fourth Amendment to the United States Constitution.

The state relies solely on the sheriff's routine policy of inventorying the contents of all impounded motor vehicles to justify both the right to conduct an inventory search and its scope. It does not contend that the officers had probable cause to believe that the automobile was an instrumentality of crime or that there were exigent circumstances authorizing a delayed search incident to the seizure. See State v. Quinn, 290 Or. 383, 391, 623 P.2d 630 (1981). For that reason, the material facts are brief. Defendant concedes that his car was lawfully impounded. After it was towed to the Polk County garage, a locked storage shed, Officer Dunkin searched the passenger compartment of the car to make an inventory, but was "also looking for evidence of a crime." He opened the glove compartment and inventoried the contents, which included a map and a bottle of wine. He examined the map and observed that the area in which a burglary had occurred was circled. He also inventoried items he found under the seat, opened a wallet and examined its contents. In addition, he opened the trunk but decided not to inventory its contents, because he was worried "about the legality of looking in a locked container, concerning the trunk, as far as the inventory goes, the admissibility." All of the items that were listed in the inventory were left in the car until the police had obtained two search warrants, after which they were seized. The trial court suppressed all of the evidence seized except the map and wine bottle, the only evidence involved in this appeal.

Defendant contends that the initial "inventory" search of his automobile was unreasonably intrusive and that the map and wine bottle subsequently seized should have been suppressed, relying on principles established in State v. Keller, 265 Or. 622, 510 P.2d 568 (1973). In that case, the defendant was arrested for driving with a suspended license, and it was necessary to remove her car from the street. Pursuant to a standing administrative order, the police inventoried the contents of the car and observed an open cosmetic case on the floor with its contents, syringes and needles, in plain view. They also observed a fishing tackle box, held closed by a red wire, on the floor of the back seat. They opened the box to inventory its contents and found five vials of liquid, later determined to be contraband. The court held that, under the "plain view" doctrine, the police could seize evidence that was plainly visible to them when they were in a place where they had a right to be. Accordingly, the court upheld the seizure of the syringes and needles; however, it affirmed the trial court's suppression of the evidence seized from the tackle box after it was opened and searched, because the search of the tackle box was unreasonable under both the Fourth Amendment and Article I, section 9, of the Oregon Constitution. The court stated:

" * * * The vials were within the tackle box which was sealed closed by the red wire, and they were not in 'plain view.' The officers testified they were not searching for evidence, but were only inventorying the automobile's contents. With no exigent circumstances present they could have easily inventoried 'one fishing tackle box,' along with other items in plain view. If they had probable cause to believe a crime was being committed, after seeing the syringes and needles in the open cosmetic case, they could have sought a search warrant from a disinterested magistrate." (Emphasis supplied.) 265 Or. at 625-26, 510 P.2d 568.

We applied Keller in State v. Childers, 13 Or.App. 622, 511 P.2d 447, rev. den. (1973), to suppress evidence discovered when an officer lifted and looked underneath a sleeping bag laid out in the back compartment of a station wagon, because that evidence was not in plain view and, therefore, the officer had exceeded the scope of a permissible "inventory" of the contents of defendant's car.

It is clear that the warrantless search of the closed glove compartment of defendant's car exceeded the scope of the kind of "inventory" authorized by Keller. The state contends, however, that Childers --and impliedly Keller --are no longer good law in light of the United States Supreme Court's later decision in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). However, Keller relied on the state constitution, as well as the federal one; here defendant also relies on both. It is true that the court in Keller did not articulate an interpretation of Article I, section 9, different from the Fourth Amendment; it is also true that subsequently the court held in State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974), that it would follow United States Supreme Court decisions interpreting the Fourth Amendment in applying Article I, section 9. Nonetheless, that equation is not carved in stone, and once the Oregon court has interpreted the state constitutional provision, even though consistent with then existing United States Supreme Court decisions, a subsequent change in the latter's interpretation of the Fourth Amendment does not necessarily change the interpretation of the Oregon counterpart. State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982).

To the contrary, Oregon courts must examine the Oregon law first before considering federal constitutional claims. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983); State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983). We do that here, and unless Opperman persuades us that Keller is not controlling and that its application of the Fourth Amendment should be followed in applying Article I, section 9, we are bound to follow Keller. Opperman persuades us of neither. ³

In that case, an unattended, illegally parked automobile was towed lawfully to an impounded lot. The lot was described as an "old county highway yard" with a "wooden fence partially around part of it, and kind of a dilapidated wire fence"; in the past, towed, locked cars had been broken into and personal effects had been stolen. At the lot, from outside the car, an officer observed a watch on the dashboard and other personal property on the back seat and back floorboard. The car door was then unlocked, and, pursuant to standard police procedures, the officer inventoried the contents of the car, including the contents of the unlocked glove compartment. There he found a plastic bag of marijuana.

All of the items were removed from the car and taken to the police station for safekeeping. The officer testified that he conducted the inventory for safekeeping, because of the history of thefts from automobiles left in the impoundment lot. The court concluded that, under the "facts and circumstances" of that case, the conduct of the police was "not 'unreasonable.' "

Those facts were not present in Keller, and we have no reason to believe the Supreme Court would have decided Keller differently if Opperman had preceded it. Further, to contend that Opperman should control the present case ignores several important differences between the record in that case and the record here. First, the "inventory" here was not justified by a need to protect the owner's property. Unlike in Opperman, there is no evidence of past thefts from the impound lot; the car was stored in a locked storage shed, and there is no suggestion that any such problem existed. There is no evidence here that any valuables were in plain view to tempt a thief and thereby trigger the officer's concern for the safekeeping of the property. More importantly, the police left defendant's personal effects in the car rather than removing them for safekeeping. The state's rationale for itemizing the contents of the car to protect the owner's property rings hollow, given the obvious proposition that doing so, without removing it from the car, provides no greater protection for defendant's property than not inventorying it.

Further, we think it is clear that an "investigatory motive," which the court in Opperman noted was not present there, 428 U.S. at 375-76, 96 S.Ct. at 3100, lay behind the search here. The record indicates that the impounding officers "suspected" that the car might have been used in a burglary. The officer conducting the "inventory" stated that he was "also looking for evidence of a crime" and that he opened the trunk but did not "inventory" the property he observed, because he was concerned about its admissibility in evidence. It is clear that the reason given by the court in Opperman as justifying a true inventory of the contents of an impounded vehicle does not exist in this case; here, there was no true inventory.

Because Opperman rests on factors not present here or in Keller, it does not...