State v. Scruggs
| Decision Date | 04 November 2015 |
| Docket Number | 111134651,A151176. |
| Citation | 362 P.3d 265,274 Or.App. 575 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Herbert Lee SCRUGGS, Jr., Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Assistant Attorney General.
Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.
Defendant appeals a judgment of conviction for unlawful delivery of cocaine within 1,000 feet of a school, ORS 475.882, unlawful delivery of cocaine, ORS 475.880, and unlawful possession of cocaine, ORS 475.884. He assigns error to the trial court's (1) denial of his motion to suppress evidence under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, and (2) failure to merge his convictions for unlawful delivery of cocaine within 1,000 feet of a school and unlawful delivery of cocaine. Defendant argues that the warrantless search to which he was subjected—in which officers ordered him to strip naked, handcuffed him, and forcibly bent him over and spread his buttocks to discover drugs—was unlawful. The trial court ruled that the search was not allowable as a search incident to arrest because it was not reasonable in time, scope, or intensity, but nevertheless determined that the fruits of the search would inevitably have been discovered at the county jail by means of an administrative detainer to which defendant was subject for a parole violation. The state concedes that, as to the inevitable discovery exception to the warrant requirement, it did not meet its burden of showing "certain proper and predictable investigatory procedures" would have been utilized and, thus, the evidence cannot be suppressed on that basis. By cross-assignment, the state challenges the ruling that the search was not allowable as a search incident to arrest. Because we agree with the state and accept its concession as to inevitable discovery and conclude that the warrantless search was not allowable as a search incident to arrest, we reverse and remand.1
We review the trial court's denial of a motion to suppress for legal error, and "are bound by the trial court's findings of historical fact that are supported by evidence in the record." State v. Holdorf, 355 Or. 812, 814, 333 P.3d 982 (2014). Moreover, "if the trial court did not make findings on all pertinent historical facts and there is evidence from which those facts could be decided more than one way, we will presume that the trial court found facts in a manner consistent with its ultimate conclusion." State v. Stevens, 311 Or. 119, 126–27, 806 P.2d 92 (1991) (citing Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968) ). "Our function is to decide whether the trial court applied legal principles correctly to those facts." Id. at 126, 806 P.2d 92 (citing State v. Peller, 287 Or. 255, 260, 598 P.2d 684 (1979) ).
At around 5:00 a.m., in the Old Town area of Portland, Officers Sparks and Wells were on a "spotting mission"; from an unmarked car, they surveilled the area for possible drug transactions. Police officers and drug users knew the area as "Crack Alley," where drug deals and use frequently occurred. Sparks saw (through binoculars) defendant make contact with a small group of known drug users who were standing on a corner. He observed defendant talk to one of them, then reach down inside the front of his pants, dig around, pull out his hand, open the palm, inspect what he had retrieved, receive a paper-like object (which Sparks believed to be money) from the person, and hand the person a small object—all actions that Sparks interpreted to be a hand-to-hand drug transaction. After Sparks observed what appeared to be another hand-to-hand drug transaction between defendant and another person, he called in other officers to make contact with defendant and, as the officers drove to the scene, defendant ran. Within a few minutes, Officer Ajir apprehended and arrested defendant and then searched his pockets; he found cash but no drugs. Before the contact and arrest, defendant had briefly left Sparks's sight, but when defendant returned to his view, Sparks observed nothing to indicate that defendant had tossed or swallowed anything.
Nevertheless, the officers believed that defendant still had drugs concealed on his person, and, in accordance with police department policy that prohibits conducting strip searches on the street, Ajir transported defendant to the local precinct station to conduct what he described as a "more intrusive search." The officers believed that was necessary because, in their experience, it is common for drug dealers in Old Town to hide drugs inside their anal cavities—a practice known as "keistering"—or pressed between their buttock cheeks. At the station, officers placed defendant in a private room. Wells instructed defendant to remove his outer clothing and then went through each item of clothing to check for hidden pockets or tears where defendant could have hidden drugs. Wells then instructed defendant to remove his underwear and ordered him to bend over, to use his own hands to spread apart his buttock cheeks, and to cough
so that Wells could see if there were drugs inside defendant's anus. Defendant bent over, but only at a 45–degree angle, grabbed his buttock cheeks and "halfheartedly" spread them (but not to the point that Wells could observe anything), coughed, and then quickly stood back up. Those actions led Wells to believe that defendant was concealing something deeper inside his buttocks.
Wells proceeded to handcuff defendant and, with the help of Sparks and another officer, physically bent defendant over. Wells saw that defendant was clenching his buttocks together, and Wells proceeded to physically and forcibly spread them open. The officers then spotted a plastic baggie pressed against, but not inside, defendant's anus. Since "[n]o portion of the bag was technically inside of" defendant, Wells "pulled out" the bag, which contained cocaine. Wells testified that it was the police department's policy that, if the bag had been Defendant was then allowed to put his clothes back on. The police delivered defendant to the county jail to be booked on charges of delivery and possession of controlled substances, and on a no-bail probation violation detainer.
The explanation for the detainer is that the officers learned that defendant was on probation and contacted his probation officer. Wells testified that, if the officers had not discovered the drugs, they would nevertheless have called defendant's probation officer to alert him of the hand-to-hand drug transactions they had observed defendant making in Old Town. The police did, in fact, make such a call and spoke with Desmond, the probation office's supervisor. Defendant had recently been released from jail and had failed to report to his probation officer; consequently, Desmond issued an administrative detainer for defendant, which was a no-bail hold on his release. Desmond testified that, if the officers had reported to her that they had not discovered drugs on defendant but had observed a hand-to-hand transaction in Old Town at 5:00 a.m., she would nevertheless have asked the jail to hold defendant without bail on an administrative detainer.
Sergeant Morrison, the classification unit manager at the Multnomah County jail who handles inmate housing assignments, testified about who is subject to strip searches when they are booked into the jail's custody. Morrison stated that it is a "fairly broad policy," which, as relevant here, includes (1) those who are entering the jail because of a drug offense; (2) persons whom the arresting officer indicates are concealing contraband; and (3) persons who will be held in the jail overnight on a parole violation detainer. Morrison noted that the classification deputies did not perform strip searches; those were done in the reception area by the booking deputies based on information received from the arresting officer. Morrison stated that the policy to which he was referring for his testimony was Sheriffs Office Special Order 03–08. The state, however, did not introduce a copy of the policy into evidence during trial.
Morrison also described the strip-search process. According to Morrison, an inmate is directed to undress in a private stall in view of the strip-searching deputy. The inmate's clothing is put in a property bag and handed to the deputy. The deputy directs the inmate, among other things, to bend over at the waist, spread his buttock cheeks with his hands, and cough
forcefully. When asked what happens if an inmate does not comply with that direction, Morrison replied that it was against policy for the deputies to physically bend over or maneuver the inmate. Instead, the inmate is handcuffed and put into a dry cell—a room without a toilet or any other place where contraband can be hidden. If necessary, the deputies will obtain a warrant and send the inmate to the hospital to have medical personnel determine if the inmate has stored contraband internally.
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...when it is seized without a warrant or a constitutionally sufficient exception to the warrant requirement. State v. Scruggs , 274 Or. App. 575, 582, 362 P.3d 265 (2015). In cases of warrantless search or seizure, the state has the burden to demonstrate that a valid exception to the warrant ......