State v. Stock, D0300780M.

• Decision Date: 01 November 2006
• Docket Number: A123778.,D0300780M.
• Citation: 146 P.3d 393,209 Or. App. 7
• Parties: STATE of Oregon, Respondent, v. Michael Lynn STOCK, Jr., Appellant.
• Court: Oregon Court of Appeals

146 P.3d 393

209 Or. App. 7

STATE of Oregon, Respondent, v. Michael Lynn STOCK, Jr., Appellant.

D0300780M.

A123778.

Court of Appeals of Oregon.

Argued and Submitted February 22, 2006.

Decided November 1, 2006.

John L. Susac, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Division, Office of Public Defense Services.

Robert M. Atkinson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ORTEGA, Judge.^*

LANDAU, P.J.

Defendant appeals a judgment of conviction for escape in the third degree. ORS 162.145. He assigns error to the trial court's denial of his motion to suppress evidence of a controlled substance discovered by a police officer conducting an inventory of a car in which defendant was a passenger. Defendant contends that the officer violated the police department's vehicle inventory policy by opening a closed container—a small plastic bag that had been placed inside a folded bottle cap—that the officer discovered, along with a used syringe and meth pipe, under defendant's car seat. The state argues that the presence of the plastic bag, in conjunction with the drug paraphernalia found next to it, gave the officer probable cause to believe that drugs were present and that opening the plastic bag constituted a reasonable search "incident to an arrest" for which no warrant was required. We agree with the state and therefore affirm.

The relevant facts are not in dispute. Defendant was a passenger in a car that a Beaverton police officer, Cockreham, stopped for a traffic infraction. Cockreham determined that there was an outstanding warrant for the driver's arrest. In the course of arresting the driver, Cockreham asked defendant and another passenger to step out of the car so that the officer could conduct an inventory of its contents. During that inventory, Cockreham found the following items under the seat where defendant had been sitting: a used syringe containing apparent drug residue, a glass methamphetamine pipe, and a bottle cap that was folded over and that had a small plastic bag protruding from it.

Believing that the bottle cap contained drugs, the officer opened it and extracted the bag. It contained a crystalline substance, later tested and determined to be methamphetamine. Cockreham asked the driver of the car who owned the drugs, and the driver indicated that they belonged to defendant. Cockreham asked another police officer on the scene, Carroll, to handcuff defendant; when Carroll attempted to do so, defendant fled. A foot chase ensued and defendant was later apprehended.

Based on his conduct of fleeing the scene, defendant was charged with third-degree escape. Before trial, defendant moved to exclude evidence of the drugs that Cockreham had found on the ground that they were the result of an illegal search. Defendant argued that, under the Beaverton Vehicle Inventory Policy, Cockreham was not allowed to open closed containers such as defendant's folded bottle cap.

At the hearing on defendant's motion, Cockreham testified that he had first seen the car as it pulled out of an apartment complex where the police frequently had responded to drug-related calls. Cockreham also testified that, when he found the bottle cap during the inventory, he believed, based on his training and experience, that it contained drugs. When asked whether there was anything distinctive about the container that led him to the conclusion that it was a drug container and not simply trash, Cockreham responded, "its proximity to the * * * pipe and the syringe, being folded up in a way where it was containing a plastic bag * * * I almost had no doubt what was inside of it."

The trial court denied defendant's motion to suppress evidence of the drugs, finding that the police officer conducted the inventory in accordance with the applicable policy. After a trial to the court on stipulated facts, defendant was convicted of third-degree escape.

On appeal, defendant renews his argument that Cockreham violated the vehicle inventory policy when he unfolded the bottle cap and opened the plastic bag. It follows, argues defendant, that Cockreham relied on illegally obtained evidence when he decided to arrest defendant and that defendant's arrest itself was therefore illegal. On that basis, defendant challenges his conviction for third-degree escape, arguing that he cannot be guilty of escape because he was not lawfully under arrest. See ORS 162.145 (providing that it is a defense to a prosecution for escape that the person charged with escape was in custody pursuant to an illegal arrest).

In response, the state does not argue that the opening of the bottle cap was a legitimate component of the vehicle inventory; it argues instead that defendant's arrest was lawful because the arresting officers had probable cause to believe that the bottle cap contained a controlled substance and were therefore entitled to open it as a search incident to defendant's arrest.

We may affirm a decision for a reason different from one argued to the trial court if the facts in the existing record provide adequate grounds to do so and the opposing party would not have created a different record had the issue been raised. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001). In this case, the relevant facts are undisputed, and defendant, in his supplemental brief in response to the state's alternative argument, does not assert that he would have made a different record had the state raised the argument earlier. We therefore turn to the question whether the officer's opening of the bottle cap was a lawful search incident to arrest.

In State v. Walker, 173 Or.App. 46, 51, 20 P.3d 834 (2001), we explained that a police officer conducting a vehicle inventory lawfully may open a closed container without a warrant in only two circumstances: (1) the discovered container "announces its contents" to such an extent that opening it does not invade a protected privacy interest and, thus, does not constitute a search, see State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986), or (2) opening the container is justified by probable cause and some exception to the warrant requirement.¹ Accordingly, our analysis of whether an officer conducting a vehicle inventory is entitled to open a closed container proceeds as follows: We first ask whether the container "announced its contents" to such an extent that the owner retained no cognizable privacy interest in its contents. If so, our analysis ends, because the opening of such a container was not a "search" at all under Article I, section 9, of the Oregon Constitution. If the container did not "announce its contents," we next ask if the officer conducting the inventory nevertheless had probable cause to believe the container's contents were illicit and, if so, whether a warrantless search of the container was justified under a recognized exception to the warrant requirement, such as officer safety, exigent circumstances, or as a search incident to an arrest. See, e.g., State v. Lane, 135 Or.App. at 239, 898 P.2d 1358 ("[I]f in the course of the inventory process the officer develops probable cause to believe that the arrestee has committed a crime other than the one for which he or she was arrested, the officer may conduct a search incident to the presumed arrest for that other crime.").

We begin with the question whether the container in this case—a bottle cap bent around a plastic bag—may be said to "announce it contents," and we readily conclude that it does not. Whether a container "announces it contents" depends on whether those contents are so plainly obvious that there is no privacy interest to protect. In Owens, for example, the court held that, because a small transparent vial containing drugs "announced its contents," the officer who opened it and tested its contents had not conducted a "search" that is subject to the protection of Article I, section 9. 302 Or. at 206, 729 P.2d 524. The exception is thus analogous to the plain view exception; it depends only on the nature of the container itself—i.e., whether by its smell, appearance, or other directly observable features, it "announces it contents"—and is thus independent of the context in which the container was found or the subjective knowledge and experience of the officer who found it. Id.; see also State v. Kruchek, 156 Or.App. 617, 622, 969 P.2d 386 (1998), aff'd by an equally divided court 331 Or. 664, 20 P.3d 180 (2001) (holding that the Owens exception for containers that "announce their contents" applies only to those which "do so in a way that announces that contraband is their sole content" (emphasis in original)).

There is nothing about a bottle cap that is bent around a plastic bag, per se, that can be said to announce to the world that it contains drugs and only drugs. Indeed, there is no evidence that bottle caps around plastic bags are often used in such a manner. Although small plastic bags are very frequently used to carry drugs, see, e.g., State v. Rocha-Ramos, 161 Or.App. 306, 985 P.2d 217 (1999) (officer testified that drugs are often packaged in such bags); State v. Hester, 153 Or.App. 247, 956 P.2d 1052, rev. den., 327 Or. 432, 966 P.2d 222 (1998) (same), they obviously have a multitude of other benign uses. In any event, plastic bags are not so uniquely associated with carrying drugs that the contents of the bag in this case, though concealed by a bent bottle cap, was so obvious as effectively to be in plain view. We therefore conclude that defendant retained a cognizable privacy interest in the container's contents, and the officer's opening of it constituted a search under Article I, section 9.

We turn to...