State v. Brownlee

• Citation: 461 P.3d 1015,302 Or.App. 594
• Decision Date: 04 March 2020
• Docket Number: A162409,A162408 (Control)
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Billie Jo BROWNLEE, Defendant-Appellant.
• Court: Court of Appeals of Oregon

302 Or.App. 594

461 P.3d 1015

STATE of Oregon, Plaintiff-Respondent,

v.Billie Jo BROWNLEE, Defendant-Appellant.

A162408 (Control)

A162409

Court of Appeals of Oregon.

Argued and submitted January 9, 2018.

March 4, 2020

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Susan G. Howe, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.^*

DeHOOG, P. J.

In these consolidated cases, defendant appeals judgments of conviction for unlawful possession of methamphetamine, ORS 475.894, and first-degree failure to appear, ORS 162.205.¹ Defendant assigns error to the trial court’s denial of her motion to suppress evidence derived from searches of (1) her backpack and (2) a scale found inside her backpack, each of which defendant contends violated Article I, section 9, of the Oregon Constitution. Defendant argues that her backpack was impermissibly searched incident to her arrest because it was no longer in her immediate possession at the time of her arrest. Defendant further argues that, even if the initial search of her backpack was lawful, the subsequent search of the scale—which resulted in the discovery of methamphetamine residue—exceeded the lawful scope of a search incident to her arrest for theft. We conclude that the search of a backpack that was in defendant’s possession immediately before her arrest for theft was permissible incident to that arrest. As to the search of the scale, however, it is unclear on what basis the trial court upheld the search; as a result, we are unable to determine whether the record supports the trial court’s implicit factual findings or whether its ultimate ruling is legally correct. Accordingly, we vacate the judgment of conviction for unlawful possession of methamphetamine and remand to the trial court to clarify its ruling.

"We review a trial court’s denial of a motion to suppress for legal error, and we are bound by the trial court’s factual findings if there is any constitutionally sufficient evidence in the record to support them." State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017). If the trial court did not make findings of fact on all pertinent issues and "there is evidence from which the trial court could have found a fact in more than one way, we will presume that the trial court decided the facts consistently with the trial court’s ultimate conclusion." Id . at 166, 389 P.3d 1121 ; see also State v. Delfino , 281 Or. App. 725, 727, 386 P.3d 133 (2016), rev. den. , 361 Or. 525, 395 P.3d 883 (2017) ("[W]e are bound by the trial court’s * * * necessary implicit factual findings, as long as the record includes constitutionally sufficient evidence to support those findings." (Internal quotation marks omitted.)).

In December 2014, loss-prevention officers (LPOs) at a Roth’s grocery store were monitoring security cameras when they saw defendant pick up a deli item "in a bowl type container * * * probably some kind of pasta or something from the deli that was served into a bowl by the deli employee and was given to her in a bowl container." Because they found it noteworthy that defendant was wearing a large jacket and carrying a backpack, the LPOs continued to monitor defendant as she walked through the store. When the LPOs saw defendant leave the store without having seen her pay for the deli item, they followed her outside and confronted her about the suspected theft. While the LPOs were on the phone with the police, defendant left the Roth’s parking lot and walked towards an adjacent Jiffy Lube parking lot. The LPOs described defendant and her whereabouts to dispatch as she walked away.

Within minutes, Detective McCarley arrived in the area to investigate the incident. Dispatch had given McCarley a description of the suspect: a female in her forties, wearing a black coat and carrying a blue backpack, who had last been seen walking away from Roth’s towards a nearby Jiffy Lube. When he arrived, McCarley saw defendant, who matched that description, in the Jiffy Lube parking lot. As he drove into the lot, McCarley saw defendant first throw the backpack into a fenced dumpster area and then remove her coat and set it on the ground. Based on the reports that he had received and defendant’s actions upon his arrival, McCarley contacted defendant and placed her in handcuffs. At that time, McCarley knew that defendant had allegedly taken a deli item, but he had been given no further details. He testified, however, that he had envisioned "a small container."

McCarley asked defendant if she had anything in her possession that was dangerous or illegal. Defendant told McCarley that she had a marijuana pipe in her pants pocket. With defendant’s consent, McCarley retrieved the pipe from her pocket and noticed that there was burnt marijuana residue inside the bowl. McCarley then read defendant her Miranda rights, placed her in the back of his patrol car, and asked her what had happened. Defendant told McCarley that she had gotten a pasta salad from the Roth’s deli but had put it down on a table before she left the store and was confronted by the LPOs. She also told McCarley that the backpack belonged to her and that she had thrown it over the fence because she had planned to run from him and had not realized it was merely an enclosure. Defendant told McCarley that her backpack contained more marijuana and said that McCarley could retrieve the backpack from the enclosure. Defendant also initially consented to a search of the backpack, but she withdrew that consent after McCarley retrieved the backpack. Meanwhile, the LPOs arrived. They positively identified defendant as the person they had seen taking a deli item, told McCarley that they had been unable to find the item anywhere in the store, and said that they had confirmed that defendant had not paid for it.

Based on the information he had at that point, McCarley determined that he had probable cause to arrest defendant for third-degree theft. Thus, incident to that arrest, McCarley searched defendant’s backpack for evidence of theft. At that time, McCarley also believed that he had probable cause to search for marijuana based on defendant’s statements and her possession of a marijuana pipe.² Inside the backpack, McCarley found a prescription bottle and a woman’s purse. McCarley opened the pill bottle and found marijuana.³ McCarley then opened the purse and found a small black case that he believed could have contained a deli salad; McCarley opened the case, finding a small digital gram scale and "zip lock type" plastic baggies that appeared about an inch and a half square in size. The scale inside the case was "maybe three to four inches by three to four inches and maybe half to one inch deep." The weighing surface of the scale was covered with a lid.

Next, McCarley removed the cover from the scale’s weight plate and discovered white powder residue on it. Based on his training and experience, he suspected that the white powder was some type of controlled substance, possibly methamphetamine or cocaine. A field test later confirmed that the substance was methamphetamine. Defendant initially told McCarley that the scale was hers, but, when McCarley showed her the powdery residue, she recanted that statement. Defendant was subsequently indicted for unlawful possession of methamphetamine and third-degree theft.

Before trial, defendant moved to suppress the evidence found inside her backpack and the statements that she had made following the search. Defendant argued that McCarley’s warrantless search violated Article I, section 9, because her backpack had not been in her immediate possession when she was arrested, and because the search exceeded the lawful scope of a search incident to her arrest for theft. McCarley and the Roth’s LPOs testified to the above facts at the hearing on defendant’s motion to suppress. McCarley also testified that he had years of experience participating in drug investigations, during which he had investigated the use, sale, and manufacturing of drugs. As to the search of the scale in particular, McCarley testified that the small plastic baggies and scale were significant to him because,

"given my time working in narcotics, that typically when I find that stuff in contacting somebody, especially when they already have some type of controlled substance, [that] being marijuana [here], to me that’s an indicator that somebody’s either in possession of more drugs or is potentially using that as packaging for selling controlled substances ."

(Emphasis added.) When defendant asked McCarley if he "at any time develop[ed] probable cause to believe that [he] could arrest her for possession of marijuana," McCarley said that he had not. When asked specifically why he opened the scale, McCarley replied, "Given the fact that I had found marijuana, plus the clean plastic bags, I suspected there would be marijuana on the scale."

The court denied defendant’s motion, ruling that McCarley had probable cause to arrest defendant for third-degree theft and that the search of her backpack was permissible as a search incident to that arrest because defendant had it in her hands before throwing it over the fence in an attempt to flee from McCarley. The court further ruled that McCarley had probable cause to search the "makeup bag" (the black case) that he found inside the purse, as well as the scale within that bag. Specifically, the trial court ruled, in part:

"At the time that [McCarley] searched [the backpack] * * * I think he had two things that he could search for. I disagree with you [defendant], when an officer is investigating the violation, even though it doesn’t rise up to the level of a crime, if there is an

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