State v. Krause

• Decision Date: 21 September 2016
• Docket Number: A154713
• Citation: 383 P.3d 307,281 Or.App. 143
• Parties: State of Oregon, Plaintiff–Respondent, v. Krystal Lee Krause, Defendant–Appellant.
• Court: Oregon Court of Appeals

281 Or.App. 143
383 P.3d 307

State of Oregon, Plaintiff–Respondent,
v.
Krystal Lee Krause, Defendant–Appellant.

A154713

Court of Appeals of Oregon.

Submitted April 29, 2015.
September 21, 2016

Peter Gartlan, Chief Defender, and Sarah Laidlaw, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

HADLOCK, C.J.

281 Or.App. 144

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine (ORS 475.894 ), assigning error to the trial court's denial of her suppression motion.¹ A police officer found methamphetamine

383 P.3d 309

inside an Altoids tin in defendant's backpack. Defendant contends that the officer's search of the Altoids tin was unlawful and, accordingly, the trial court erred when it denied her motion to suppress the evidence found within that container. For the reasons set forth below we disagree and, accordingly, affirm.

We describe the pertinent facts as found by the trial court, as the record supports the court's findings. State v. Culley , 198 Or.App. 366, 374, 108 P.3d 1179 (2005). Officer Berry observed defendant commit multiple traffic violations as she drove in the area of a middle school and some elementary schools. After stopping defendant and ascertaining that she lacked insurance, Berry arranged for defendant's van to be towed. Before the van was towed, Berry allowed defendant to retrieve anything from the vehicle that she wished; defendant took some items, but left a backpack on the passenger seat of the van. Following the City of Beaverton's inventory policy, Berry conducted an inventory of the van, while defendant stood outside of the vehicle. As part of that inventory, Berry opened the backpack, revealing marijuana, hypodermic needles, and a closed Altoids tin. Based on those observations, Berry concluded that she had probable cause to believe that defendant had unlawfully possessed controlled substances within 1,000 feet of a school, meaning that she had probable cause to arrest defendant. And based on that conclusion, Berry opened the Altoids tin, revealing additional controlled substances. She subsequently took defendant into custody.

After defendant was charged with unlawful possession of methamphetamine, she moved to suppress the evidence found in the Altoids tin, arguing that Berry's search of the tin violated

281 Or.App. 145

Article I, section 9, of the Oregon Constitution.² The trial court determined that Beaverton's inventory policy justified Berry looking into the backpack and that, once Berry saw what was inside the backpack, she had probable cause to believe that defendant had committed the crime of possessing controlled substances within 1,000 feet of a school. That probable cause, the court concluded, justified Berry's search of the Altoids tin as a search incident to arrest, despite the fact that defendant was outside of the van when Berry conducted that search. Accordingly, the court denied defendant's suppression motion.

On appeal, defendant assigns error to that ruling. Her argument is narrow. Defendant does not challenge Berry's authority to open the backpack during her inventory of defendant's van. Defendant also does not dispute that Berry's observations of the visible contents of the backpack (including marijuana and hypodermic needles) gave her probable cause to believe that additional controlled substances were contained in the Altoids tin located inside the backpack. And defendant does not appear to challenge the principle that a search incident to arrest may occur when an officer has developed probable cause to make an arrest, even if the defendant has not yet actually been taken into custody. State v. Kemp , 112 Or.App. 522, 527–28, 831 P.2d 37, rev. den. , 313 Or. 627, 835 P.2d 916 (1992).

Instead, defendant argues only that Berry could not open the Altoids tin as part of a search incident to arrest because Berry did not develop probable cause to arrest defendant until after defendant had exited the van and, therefore, no longer had control over the backpack and the Altoids tin inside it. In considering that argument, we review the trial court's “denial of [the] motion to suppress for legal error, and we are bound by the trial court's implicit and explicit findings of historical fact as long as the record includes constitutionally sufficient evidence to support those findings.” State v. Walker , 277 Or.App. 397, 398, 372 P.3d 540 (2016).

Defendant's argument fails in light of settled principles that guide our analysis of warrantless searches that the

281 Or.App. 146

state seeks to justify as searches incident to arrest. “Article I, section 9, guarantees that ‘[n]o law shall violate the right of the people to be secure in their persons, houses, papers,

383 P.3d 310

and effects, against unreasonable search [.]’ ” “Warrantless entries and searches of premises are per se unreasonable unless they fall within an exception to the warrant requirement.” State v. Kelly , 274 Or.App. 363, 372, 360 P.3d 691 (2015). One such exception, at issue here, is a search incident to arrest. State v. Mazzola , 356 Or. 804, 811–12, 345 P.3d 424 (2015).

“A warrantless search incident to arrest can be made for any of three purposes: (1) to protect a police officer's safety; (2) to prevent the destruction of evidence; or (3) to discover evidence of the crime of arrest.” Id . at 811, 345 P.3d 424. The first two of those purposes underlying the exception to the warrant requirement relate, in some ways, to exigency, that is, to an officer's present need to keep people safe and prevent the destruction of evidence. It may follow that, in many circumstances, searches incident to arrest for those two reasons will be justified only when the area searched is still within the defendant's control, so that the defendant would be able to obtain a weapon stashed in the area or to destroy or conceal evidence located there. See State v. Groom , 249 Or.App. 118, 122, 274 P.3d 876, rev. den. , 352 Or. 665, 293 P.3d 226 (2012) (describing the first two bases for search incident to arrest as justified by the need “to protect the arresting officer in case the suspect has a weapon within reach and to prevent the suspect from reaching and destroying evidence”).

However, the same is not true of the third basis for a search incident to arrest: “to discover evidence of the crime of arrest.” State v. Washington , 265 Or.App. 532, 536, 335 P.3d 877 (2014). Rather, a search for that purpose may be justified even if the defendant has been removed from the area in which an officer believes that evidence may be located. Id. In those circumstances, the search will comport with Article I, section 9, even though the defendant no longer has control over the area searched, as long as the evidence reasonably could be found in that area and the search is otherwise reasonable in time, scope, and intensity. Id. at 537, 335 P.3d 877. Moreover, “officers may open a closed container” in the course of searching incident to arrest for the purpose of

281 Or.App. 147

finding evidence of the crime of arrest if such evidence “reasonably could be concealed in that container.” Id.

We discussed that principle in Washington, a case in which the defendant was a passenger in a car that was stopped by a police officer who saw the driver make an illegal turn. Id. at 534, 335 P.3d 877. The officer observed some indications of impairment and administered field sobriety tests to the driver, who failed them. Id. at 534–35, 335 P.3d 877. The officer arrested the driver and secured him in a patrol car, then searched the car (including the closed center console) for evidence that the driver had been driving under the influence of intoxicants. That search revealed evidence supporting the defendant's arrest. Id. at 535, 335 P.3d 877. The defendant unsuccessfully moved to suppress that evidence on the ground that the search incident to arrest of the driver violated Article I, section 9. We held that the trial court correctly denied the suppression motion because the officer's search of the car “plainly comported with Article I, section 9 ”: the driver “had been driving the car immediately before his arrest,” the officer “searched the car at the time of [the] arrest,” and evidence of the driver's crime “reasonably could have been concealed within the car,” including the center console. Id. at 539, 335 P.3d 877.

Notably, the arrest of the driver in Washington apparently did not occur until after the driver was outside of the car and had performed, and failed, field sobriety tests. Id. at 534–35, 335 P.3d 877. What mattered was not whether the driver was still in the car or otherwise had control over it at the moment that he was arrested. Rather, what mattered was that the driver had controlled the car “immediately before his arrest” and that the search followed closely on the...