State v. Krumenaker
| Decision Date | 19 August 2020 |
| Docket Number | A166647 |
| Citation | 472 P.3d 760,306 Or.App. 9 |
| Parties | STATE of Oregon, Plaintiff-Appellant, v. Jacob Zavala KRUMENAKER, aka Jacob Krumenaker, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Peenesh Shah, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Joshua B. Crowther, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Before Ortega, Presiding Judge, and Tookey, Judge, and Powers, Judge.
The state appeals from an interlocutory order of the trial court that suppressed evidence discovered during an inventory search of defendant's car. The trial court suppressed the evidence based on its determination that the inventory policy was being administered by the police in a manner that gave too much discretion to the searching officer, in contravention of Article I, section 9, of the Oregon Constitution, as interpreted in State v. Atkinson , 298 Or. 1, 688 P.2d 832 (1984). On appeal, the state argues that the court misapplied Atkinson and that the inventory was constitutionally valid. We conclude that the trial court did not err in its application of Atkinson and that the state did not meet its burden to show that the inventory policy was systematically administered to remove individual officer discretion, which is required under Atkinson for a search pursuant to an inventory policy to be valid under Article I, section 9. Accordingly, we affirm.
The underlying facts are undisputed. Officer Greiner stopped defendant for having expired registration stickers displayed on his car. During the stop, defendant admitted that the car was not insured. As a result, Greiner determined that the car should be impounded, at which point defendant left the area on foot. Greiner then conducted an inventory of the car. He found a backpack behind the driver's seat, which he opened. Inside one of the compartments in the backpack was a brown, zippered, soft-sided, oblong case that Greiner identified as a "brown pistol case." Greiner testified that "by feeling it," he "could tell that there was a pistol inside." He also testified that "guns are valuable" and that "from my life experience, training, experience, * * * it's a container that contains valuables." Greiner opened the case and found a firearm inside. Defendant was subsequently charged with felon in possession of a firearm.
Defendant moved to suppress Greiner's discovery of the firearm, arguing that it was discovered pursuant to an invalid inventory. At the suppression hearing, the state introduced evidence of the written policies of the City of Tillamook and the Tillamook Police Department with regard to the inventory of impounded vehicles. The Police Chief of the Tillamook Police Department and Greiner also testified at the hearing regarding those policies. We proceed to summarize that evidence.
The Code of the City of Tillamook (CCT) requires impounded vehicles to be inventoried:
CCT 72.060(D). The Tillamook Police Department Policy Manual includes procedures for inventorying an impounded vehicle. That policy provides, in part:
The City of Tillamook adopted the above police department policy by resolution, with the exception of the final paragraph, which sets forth the purpose of the inventory policy. In addition, the city adopted an addendum to the policy, which provides:
At the suppression hearing, when asked about implementation of the inventory policy on opening closed containers, the police chief testified that whether, under the policy, an officer would open a tackle box or suitcase "depends on the circumstances" and "depends on if it announces its contents." The police chief also testified that whether an officer would open a duffel bag "depends on the circumstance," not unlike how an officer determines whether to shoot someone who has a gun. He also testified that he would open small, zippered bags for inventory, and that his department has opened for inventory not only the small, day-pack style of backpack but also large backpacks.
In addition to the facts specific to this case set out above, Greiner testified more generally about inventories. He testified that the purpose of the inventory is to document things of value to guard against false claims. With regard to closed containers, he looks for anything that "would possibly contain valuables," which would include backpacks. He also testified that, with an inventory, he has opened a tackle box, and whether he would open a suitcase "depends on the situation," if he "thought it contained valuables." He has also opened small boxes and a duffel bag to inventory.
Defendant argued that the inventory conducted here was not valid both because the policy and its implementation impermissibly allowed officer discretion in how to conduct the inventory and because Greiner deviated from the policy in this case. Defendant pointed out that both the police chief and Greiner testified to opening closed containers pursuant to the inventory policy, such as tackle boxes, duffel bags, and suitcases, that are not permitted to be opened to look for valuables, based on existing case law, because those are not containers designed to store valuables.
The trial court issued a letter opinion, granting defendant's motion to suppress. Following the test for evaluating inventories, as set out in Atkinson ,1 the court found and concluded as follows:
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State v. Dennis
...county's inventory policy, the search was permitted by the inventory exception to the warrant requirement, see State v. Krumenaker , 306 Or. App. 9, 15-16, 472 P.3d 760 (2020) (an inventory of the contents of an impounded vehicle is permitted if three requirements are met). On appeal, defen......