State v. Fulmer

• Decision Date: 05 March 2020
• Docket Number: SC S066654
• Parties: STATE of Oregon, Respondent on Review, v. Tamara Louise FULMER, Petitioner on Review.
• Court: Oregon Supreme Court

366 Or. 224

460 P.3d 486

STATE of Oregon, Respondent on Review,

v.Tamara Louise FULMER, Petitioner on Review.

SC S066654

Supreme Court of Oregon.

Argued and submitted November 13, 2019, argued at David Douglas High School, Portland.

March 5, 2020

Brett J. Allin, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ernest G. Lannet, Chief Deputy Defender, Office of Public Defense Services.

Rebecca M. Auten, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

En Banc

BALMER, J.

At issue in this case is evidence discovered in a purse during an inventory of an impounded vehicle. Hillsboro Police Department policy requires an officer who has taken "constructive custody of a vehicle prior to impoundment" to inventory, among other things, "all personal property and the contents of open containers found" in the passenger compartment. The inventory policy does not permit the opening of "closed containers," but expressly excludes from the definition of "closed containers" items "designed for carrying money or small valuables * * * includ[ing], but * * * not limited to, closed purses, closed coin purses, closed wallets and closed waist packs." The policy did not contain any provisions directing officers to advise occupants that they may take personal items or prohibiting them from doing so. Nor did it contain any provision prohibiting or forbidding occupants from removing personal items from the vehicle prior to inventory. Defendant moved to suppress the evidence found in the purse, arguing that the search violated her right under Article I, section 9, of the Oregon Constitution to be free from unreasonable searches and seizures. The trial court concluded, however, that the search was conducted pursuant to a valid inventory policy and therefore was permitted under State v. Atkinson , 298 Or. 1, 688 P.2d 832 (1984). A divided panel of the Court of Appeals affirmed, State v. Fulmer , 296 Or. App. 61, 437 P.3d 257 (2019), and we allowed defendant’s petition for review. For the reasons set out below, we reverse.

A Hillsboro police officer observed defendant driving a vehicle with expired registration tags. The officer initiated a stop, and defendant pulled over. The officer approached defendant and informed her of the reason for the stop. Defendant admitted not only that her registration tags were expired, but also that her driver’s license had expired and that she did not have insurance. The officer returned to the patrol vehicle, confirmed the information that defendant had given, and began writing a citation. The officer determined that defendant’s vehicle would need to be towed and impounded, as defendant could not legally drive it without a license or insurance, and it was blocking a bicycle lane. The officer called a second officer to assist.

The first officer was still writing the citation when the second officer arrived. The officers re-approached the vehicle, one on each side. The first officer told defendant that he was impounding her vehicle because her license was suspended, she had no insurance, and the vehicle posed a hazard in its current location. That officer informed defendant that he would need to do an inventory of her vehicle and told her to step out of the vehicle so the second officer could begin that process.

Defendant exited the vehicle with her cell phone and a pack of cigarettes in her hand, but her purse remained on the passenger’s seat. Defendant neither asked to nor was told that she could remove additional items from the car. She stood near the patrol vehicle while the inventory took place. The second officer began the inventory by looking in defendant’s purse. In a wallet inside defendant’s purse, the officer found used syringes and a small amount of methamphetamine.

Defendant was charged with unlawful possession of methamphetamine. She moved to suppress the evidence found in her purse, arguing that the officers had unlawfully searched her purse. She acknowledged that, in Atkinson , this court had recognized an inventory exception to the warrant requirement, but she asserted that the exception did not apply because the officers had not told her that she could remove her purse from her car. The trial court denied defendant’s motion to suppress, determining that "the inventory search was valid and it was lawfully followed through [the] policy that’s been implemented by the City of Hillsboro." The trial court also determined that the officers were not required to ask defendant if she wanted to take her purse with her before conducting the inventory.

Defendant appealed, assigning error to the trial court’s denial of her motion to suppress. Defendant argued first that the officers unconstitutionally seized her purse when they ordered her out of the vehicle and informed her that her vehicle would be inventoried, because a reasonable person in her situation would have believed that she was not free to remove her personal items from the vehicle at that time, and the administrative seizure exception did not justify that seizure. Defendant also argued that the search of her purse as part of the inventory violated Article I, section 9, because the police failed to inform her that she could remove personal items from her car. Specifically, defendant argued that the purposes underlying the inventory exception that this court articulated in Atkinson , 298 Or. 1, 688 P.2d 832 —protection of personal property, avoidance of spurious claims of lost property, and officer safety—are best served by encouraging occupants of impounded vehicles to remove personal property before the inventory takes place. Absent such an opportunity to remove personal property from the vehicle, defendant argued, the seizure of that property did not come within the inventory exception and therefore was invalid. The state responded that providing such information is not required by the constitution.

In affirming, the Court of Appeals majority noted that defendant did not dispute the lawfulness of the traffic stop, the decision to impound her vehicle, the Hillsboro Police Department’s inventory policy, or that the officers complied with the policy. Fulmer , 296 Or. App. at 65-66, 437 P.3d 257. The court concluded that Article I, section 9, did not require police "to give an advice-of-rights regarding inventory searches" and that the lack of such an advisement on its own was insufficient to compel the conclusion that a reasonable person would believe that she could not remove personal items from a vehicle. Id. at 74-75, 437 P.3d 257. A policy requiring such advice, the court reasoned, would be consistent with the purposes of the inventory search exception described in Atkinson , but it is not required by Atkinson or by Article I, section 9. Fulmer , 296 Or. App. at 75, 437 P.3d 257.

On defendant’s alternative seizure argument, the Court of Appeals acknowledged that "[t]he moment when an officer informs a person who is not under arrest that a vehicle is going to be impounded and asks, directs, or otherwise causes the person to exit the vehicle has not been the subject of much case law." Id. at 73, 437 P.3d 257. The court stated that it generally agreed "with defendant that, in that moment, an officer could engage in conduct that would unlawfully interfere with the person’s right to remove personal belongings from the vehicle, so as to constitute a seizure of those items distinct from the administrative seizure of the vehicle." Id. (emphasis in original). The Court of Appeals ultimately concluded, however, that such an interference did not occur in this case, based on the trial court’s express and implied findings. Id.

Chief Judge Egan dissented, arguing that the majority had read Atkinson incorrectly—that, while Atkinson lays out three conditions necessary for an inventory policy to satisfy constitutional requirements, those three conditions are not sufficient to make an inventory policy constitutional. Id. at 78, 437 P.3d 257 (Egan, C. J., dissenting). The courts have a responsibility, the dissent reasoned, to "assur[e] that ‘inventory searches’ do not become licenses for police to conduct warrantless investigatory searches." Id. The dissent would have adopted defendant’s rule that, "[b]ecause it is reasonable for an individual to feel inclined or obliged to cooperate with police, * * * police always must advise individuals of their right to take property with them prior to an inventory of their vehicle." Id. at 80, 437 P.3d 257.

Defendant renews her arguments in this court. Defendant first argues that, because the officers did not inform her that she could remove personal items from her vehicle, the state cannot rely on the inventory search exception to the warrant requirement articulated in Atkinson. Because we generally agree with defendant on that point, we do not address her alternative argument that her purse was seized when the officers ordered her out of her vehicle and informed her that they were impounding the vehicle and would inventory its contents.

We begin our discussion with an overview of the warrant requirement under the Oregon Constitution and the inventory search exception to that requirement. As a threshold matter, " Article I, section 9, of the Oregon Constitution establishes a right of the people ‘to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.’ " State v. Rodgers/Kirkeby , 347 Or. 610, 621, 227 P.3d 695 (2010) (quoting Or. Const., Art. I, § 9 ). Under Oregon law, a seizure occurs when an officer significantly interferes with a person’s possessory or ownership interest in property. State v. Juarez-Godinez , 326 Or. 1, 6, 942 P.2d 772 (1997). A search is an invasion of a privacy—rather than a possessory—interest. State v. Meredith , 337 Or. 299, 303, 96 P.3d 342 (20...