State v. Connally

• Decision Date: 15 December 2005
• Docket Number: (CC 000634971; CA A116517; SC S50999).
• Citation: 125 P.3d 1254,339 Or. 583
• Parties: STATE of Oregon, Respondent on Review, v. Richard Michael CONNALLY, Petitioner on Review.
• Court: Oregon Supreme Court

Page 1254

125 P.3d 1254

339 Or. 583

STATE of Oregon, Respondent on Review, v. Richard Michael CONNALLY, Petitioner on Review.

(CC 000634971; CA A116517; SC S50999).

Supreme Court of Oregon, En Banc.

Argued and Submitted November 9, 2004.

Decided December 15, 2005.

On review from the Court of Appeals.^*

Jennelle Meeks Barton, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Harry Auerbach, Chief Deputy City Attorney, Portland, filed the brief for amicus curiae City of Portland.

KISTLER, J.

The issue in this criminal case is whether the Portland City Code authorized police officers to inventory the contents of a closed "fanny pack" that defendant left in an impounded car. We hold that that it did and accordingly affirm the Court of Appeals decision and the trial court's judgment.

Portland Police Officer Larson was sitting in his car outside Huskey's house. Larson knew that Huskey had sold methamphetamine and that there was an outstanding warrant for Huskey's arrest. Larson saw defendant and another person drive up to Huskey's house, park, and go inside. Later, defendant, Huskey, and a third person came out of the house and got into the car. Defendant drove. A short distance from the house, Larson pulled up behind defendant's car and turned on his overhead lights. Defendant did not stop but instead drove back to Huskey's house and parked in the driveway.

Larson approached the car and placed Huskey under arrest. At that point, defendant had stepped out of the car and was standing beside it. Larson mentioned to defendant that he had failed to stop when Larson had turned on his overhead lights. Larson asked defendant for his driver license, and defendant told him that his license had been suspended. Larson confirmed defendant's statement and, in doing so, learned that defendant had an outstanding felony warrant. At that point, he handcuffed defendant and placed him under arrest.

Larson patted defendant down, found approximately $1,200 in cash on him, and put him in the back of the patrol car.¹ Larson also impounded the car because defendant's driver license had been suspended. By that time, another officer had arrived and Larson asked him to inventory the car's contents. That officer found eight bottles of pseudoephedrine in an open paper bag, two cell phones, and a police scanner. He then felt a hard object inside a ski locker (a nylon bag for holding skis) placed between the back seats. Inside the ski locker, he found a fanny pack. He opened the fanny pack and discovered small baggies of what appeared to be methamphetamine, other unused baggies, syringes, and papers with defendant's name on them.

Based on the contents of the fanny pack, the state charged defendant with possessing methamphetamine. Before trial, defendant filed a motion to suppress. He did not challenge the lawfulness of the stop, the arrest, the discovery of the pseudoephedrine bottles, or the inventory search in general. Rather, defendant challenged only the search of the fanny pack.

At a pretrial hearing on defendant's motion, the state argued that the officers properly opened the fanny pack either under the automobile exception to the warrant requirement or as part of an authorized inventory. The trial court ruled that the automobile exception did not apply, apparently because the police had impounded the car before opening the fanny pack. The court determined, however, that the officers properly opened the fanny pack pursuant to the City of Portland's inventory policy. That policy, the court explained, authorizes the police to open closed containers that are designed to hold valuables, and the fanny pack fell into that category. The court denied defendant's motion to suppress and, after a bench trial, convicted defendant of possessing methamphetamine.

The Court of Appeals affirmed without opinion. State v. Connally, 189 Or.App. 551, 77 P.3d 337 (2003). Defendant petitioned for review, arguing that the Court of Appeals had issued conflicting opinions on this subject. Defendant contended that, in one case, the court had held that the City of Portland's inventory policy permitted the officers to open a closed container found in an impounded car but that, in another case, the court had reached a different result under Washington County's virtually identical inventory policy. Compare State v. Rutledge, 162 Or.App. 301, 986 P.2d 99 (1999) (holding that officers could open small leather container found next to driver's seat), with State v. Ray, 179 Or.App. 397, 40 P.3d 528 (2002) (holding that officer could not open gym bag found in vehicle). We allowed defendant's petition for review to resolve that apparent conflict.

Article I, section 9, of the Oregon Constitution prohibits unreasonable searches.² A warrantless search is per se unreasonable unless it falls within "one of the few specifically established and carefully delineated exceptions to the warrant requirement." State v. Snow, 337 Or. 219, 223, 94 P.3d 872 (2004). In this case, the officers did not have a warrant to open the fanny pack. However, the state argues on review, as it did below, that the officers properly searched the fanny pack either as part of an authorized inventory of the car's contents or pursuant to the automobile exception. Because we hold that the City of Portland's inventory policy authorized the officers to open the fanny pack, we need not decide whether the search also came within the automobile exception.

State and local governments may authorize officers to inventory the contents of an impounded car to protect the owner's property, to reduce the likelihood of false claims against the police, and to protect the safety of the officers. State v. Atkinson, 298 Or. 1, 7, 688 P.2d 832 (1984). The purpose of the inventory is not to discover evidence of a crime. Rather, an inventory serves civil purposes and is one type of administrative search. Nelson v. Lane County, 304 Or. 97, 104, 743 P.2d 692 (1987) (plurality opinion). Officers may inventory the contents of a vehicle consistently with Article I, section 9, if (1) they lawfully have impounded the vehicle and (2) they conduct the inventory pursuant to a properly authorized administrative program that limits their discretion. State v. Boone, 327 Or. 307, 312-14, 959 P.2d 76 (1998); Atkinson, 298 Or. at 8, 10, 688 P.2d 832. The police may inventory the contents of containers when doing so is necessary to serve the inventory's purposes. See Atkinson, 298 Or. at 10, 688 P.2d 832 (stating proposition); cf. State v. Keller, 265 Or. 622, 629, 510 P.2d 568 (1973) (opening closed fishing tackle box as part of an inventory search was unreasonable in violation of Article I, section 9).

In this case, defendant argues that the officers opened the fanny pack in violation of the terms of the Portland City Code (PCC). Initially, he contends that the PCC does not authorize officers to open any closed container that they find in an impounded car. Alternatively, he argues that, even if the PCC authorizes officers to open some closed containers, it only permits them to open closed containers in a suspect's possession. He contends that, because he did not possess the fanny pack after the officers impounded the car and its contents, the officers exceeded the scope of their authority under the PCC.³

In determining what the PCC authorizes, we begin with the text and context of that ordinance. See Lincoln Loan Co. v. City of Portland, 317 Or. 192, 199, 855 P.2d 151 (1993) (applying statutory construction methodology to municipal ordinances). Chapter 14C.10 of the PCC⁴ authorizes officers to inventory both impounded vehicles and the personal property of persons taken into police custody. Section 14C.10.030 sets out the policy for inventorying impounded vehicles. With some exceptions, it authorizes officers to inventory "the contents of open containers" found throughout the vehicle. PCC 14C.10.030(C). It also provides that, "[u]nless otherwise provided in this Chapter, closed containers located either within the vehicle or any of the vehicle's compartments will not be opened for inventory purposes." PCC 14C.10.030(C)(3).

Chapter 14C.10 contains one other substantive section, PCC 14C.10.040.⁵ That section provides, in part:

"A. A police officer will inventory the personal property in the possession of a person taken into police custody and such inventory will be conducted whenever:

"1. Such person will be either placed in a secure police holding room or transported in the secure portion of a police vehicle;

"* * * * *

"C. Inventories of the personal property in the possession of such persons will be conducted according to the following procedures:

"* * * * *

"2. To complete the inventory of the personal property in the possession of such person, the police officer will remove all items of personal property from the clothing worn by such person. In addition, the officer will also remove all items of personal property from all open containers in the possession of such person.

"3. A closed container in the possession of such person will have its contents inventoried only when:

"a. The closed container is to be placed in the immediate possession of such person at the time that person is placed in the secure portion of a custodial facility, police vehicle or secure police holding room;

"b. Such person requests that the closed container be with them in the secure portion of a police vehicle or a secure police holding room; or

"c. The closed container is designed for carrying money and/or small valuables on or about the person...