State v. Cook

• Court: Court of Appeals of Oregon
• Citation: 901 P.2d 911,136 Or.App. 525
• Parties: STATE of Oregon, Respondent, v. Rafael Roman COOK, Appellant. 9305-33261; CA A83131.
• Decision Date: 06 September 1995

Page 911

901 P.2d 911 136 Or.App. 525 STATE of Oregon, Respondent,
v.
Rafael Roman COOK, Appellant. 9305-33261; CA A83131. Court of Appeals of Oregon. Argued and Submitted July 21, 1995.
Decided Sept. 6, 1995.

Page 912

[136 Or.App. 526] Sally L. Avera, Public Defender, argued the cause and filed the brief for appellant.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

[136 Or.App. 527] HASELTON, Judge.

Defendant appeals his conviction for felon in possession of a firearm. ORS 166.270. He assigns as error the trial court's failure to suppress evidence obtained during an inventory of the car he was driving when arrested. We reverse and remand.

Portland Police Officer Perkins saw defendant commit a traffic infraction and signalled for him to pull over. Defendant complied by pulling into a service station, partially blocking the gas pumps. When Perkins asked defendant to produce his driver's license and proof of insurance, defendant could not do so. Perkins then requested consent to search defendant's car for drugs and weapons. When defendant refused, Perkins arrested him for failure to carry and present his license and put him in the back of the patrol car.

After defendant's arrest, one of his two passengers "took off running." The other passenger, Bell, was paraplegic and unable to drive. Because the car was blocking the gas pumps and there was no one to whom it could be released, Perkins decided it was necessary to impound and tow the car. Perkins also decided to search the car before it was towed. ¹ He began with the trunk. One of his purposes for opening the trunk was to retrieve Bell's wheelchair. When he opened the trunk, Perkins found the wheelchair placed on top of a spare wheel. Under the wheelchair was a towel, and under the towel was a pair of long pants. Although Perkins could tell that there was "obviously * * * something in the leg of the pants," he could not see what it was. He then picked up the pants, looked into the waist area, and could see the butt of a rifle, which, when removed, proved to be an AK-47 assault rifle. He also discovered ammunition and a rifle accessory.

Defendant moved to suppress the evidence found in the trunk, arguing that it was the product of an illegal search in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. In particular, he argued that: (1) the impoundment was not valid because there were other reasonable means to [136 Or.App. 528] secure the vehicle; (2) Perkins' investigation of his car was not an inventory but, rather, a search for crime evidence; and (3) even if Perkins did inventory the car, he deviated from authorized procedures and exercised too much discretion in doing so. The court denied the suppression motion, concluding that Perkins conducted a valid inventory under a Portland Bureau of Police General Order pertaining to impoundment and towing of vehicles. ² Defendant was subsequently

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convicted in a stipulated facts trial of being a felon in possession of a firearm.

On appeal, defendant contends that, under State v. Atkinson, 298 Or. 1, 688 P.2d 832 (1984), and State v. Custer, 126 Or.App. 431, 868 P.2d 1363 (1994), the search was not a lawful inventory because it was not conducted pursuant to "extra-executive," i.e., legislative, authorization. The state responds that a Portland ordinance authorizing impoundment of vehicles afforded the necessary authorization for an inventory. The state further contends that, in all events, Perkins' opening of the trunk to remove Bell's wheelchair [136 Or.App. 529] was justified either under the emergency aid doctrine or as a "community caretaking function." ORS 133.033. ³

We first consider whether the search was pursuant to a lawful inventory. In Atkinson, the court discussed three requirements of a constitutionally valid inventory. First, the vehicle must be lawfully impounded. Second, an inventory

"must be conducted pursuant to a properly authorized administrative program, designed and systematically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory." 298 Or. at 10, 688 P.2d 832.

Third, the person conducting the inventory must not deviate from the established policy or procedures.

Defendant argues that the alleged inventory here did not meet Atkinson's second requirement. We agree. ⁴

Under Atkinson, "[p]olitically accountable officials must decide as a matter of policy when, how and for what purposes private property in official custody should be examined." State v. Willhite, 110 Or.App. 567, 572, 824 P.2d 419 [136 Or.App. 530] (1992). That determination is to be embodied in "laws, ordinances, or delegations of rulemaking authority." Atkinson, 298 Or. at 6, 688 P.2d 832. In Custer, we concluded that, where the only authority for impounding and inventorying the defendant's car was an internal police policy, the inventory did not meet Atkinson's second requirement:

"[I]t is imperative that the state identify a source...