293
Argued and submitted January 7, 2019, reversed and remanded May 20, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
KATHRYN JANE EDWARDS,
aka Katheryn Jane Edwards,
Defendant-Appellant.
Washington County Circuit Court
16CR64992, D154238M;
A164601 (Control), A164602
466 P3d 1034
Pursuant to a stipulated facts trial, defendant was convicted of one count of
possession of methamphetamine, ORS 475.894. Deputies found the methamphetamine in the backpack that defendant was wearing at the time of her arrest on
an outstanding warrant after they removed it from her and searched it without
a warrant. On appeal, defendant assigns error to the trial court’s denial of her
motion to suppress the evidence in the backpack. She contends that the court
erred when it determined that the deputies lawfully seized the backpack before
searching it and that that error was not harmless. Held: The trial court erred in
denying defendant’s motion to suppress, because the state failed to show that a
recognized warrant exception allowed for the warrantless seizure of the backpack under the circumstances present here. On this record, that error was not
harmless.
Reversed and remanded.
Rick Knapp, Senior Judge.
Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. On the brief were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and Erica Herb,
Deputy Public Defender, Office of Public Defense Services.
Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Reversed and remanded.
294 State v. Edwards
LAGESEN, P. J.
Pursuant to a stipulated facts trial, defendant was
convicted of one count of possession of methamphetamine,
ORS 475.894. Deputies found the methamphetamine in the
backpack that defendant was wearing at the time of her
arrest on an outstanding warrant after they removed it from
her and searched it without a warrant. On appeal, defendant assigns error to the trial court’s denial of her motion to
suppress. She contends that the court erred when it determined that the deputies lawfully seized the backpack before
searching it and that that error was not harmless. We agree
and reverse and remand.
We review the trial court’s denial of defendant’s
motion to suppress “for legal error, accepting the facts as
found by the trial court, so long as there is constitutionally
sufficient evidence in the record to support the findings.”
State v. Jones, 286 Or App 562, 564,
401 P3d 271 (2017). In
accordance with that standard, we take the facts from the
trial court’s findings, which are supported by the evidence
and which neither party contests.
Defendant had a warrant out for her arrest for failure to appear when Deputy Merklin spotted her riding her
bicycle, pulling a bike trailer. Defendant was wearing a backpack at the time. Merklin stopped her and arrested her on
the warrant. Sergeant Bowman arrived, followed by Deputy
Vargas, and, at some point, the backpack was removed from
defendant and she was placed in handcuffs. Defendant told
officers that she was carrying the backpack for a friend.
Once the backpack was removed from defendant, Bowman
placed it on the hood of his patrol car and searched it. He
did so pursuant to the Washington County inventory policy,
which requires the inventory of the belongings of a person
who is in custody and being transported to jail. The search
uncovered a coin purse containing a glass pipe with residue
(later determined to be methamphetamine). Defendant was
not offered the opportunity to leave the backpack with her
bike and trailer, which officers left off to the side of the road
in the bushes with defendant’s agreement. Defendant did
not ask to leave the backpack at the scene, and a decision
was “made that the backpack was going into the jail.”
Cite as 304 Or App 293 (2020) 295
Before trial, defendant moved to suppress the evidence discovered in the search of the backpack. She contended that officers seized the backpack without a warrant
before they conducted the search, and that no identifiable
exception to the warrant requirement authorized the seizure. In response, the state did not dispute that it seized
the backpack. It also did not clearly identify an applicable
exception to the warrant requirement. Instead, it argued
generally that it is permissible for arresting officers to
seize the property of an arrestee, at least where there is no
third party on the scene to which defendant could transfer the property. The trial court agreed with the state and
denied the motion, ruling that the police had the “lawful
authority to possess that bag for purposes of taking it and
with her to the jail.” Following the court’s ruling, defendant agreed to a stipulated facts trial, at which the court
found her guilty as charged of unlawfully possessing
methamphetamine.
Defendant appealed, assigning error to the denial
of her motion to suppress. She argues, as she did below, that
officers unlawfully seized her backpack without a warrant
before the search and that that unlawful seizure requires
suppression of the evidence discovered in the subsequent
search of the backpack. Defendant does not identify when,
precisely, the seizure of the backpack occurred.
In response, the state does not dispute that officers
seized the backpack. As for timing, the state argues that the
seizure of defendant’s backpack occurred at the time that
she was lawfully arrested and, further, that it is lawful for
officers to seize all property on an arrestee’s person at the
time of arrest. For that reason, the state asserts, the backpack was lawfully in the officers’ possession at the time it
was searched pursuant to the inventory policy. Consistent
with our case law on inventory searches, neither party
argues that the inventory exception to the warrant requirement allowed officers to seize the backpack in addition to
searching it; both acknowledge that the state was required
to establish that any seizure was supported by an independent constitutional justification. See State v. Stinstrom, 261
Or App 186, 190-91,
322 P3d 1076 (2014) (explaining that, for
296 State v. Edwards
purposes of Article I, section 9, of the Oregon Constitution,
the inventory exception can authorize a warrantless search
but not a warrantless seizure).
Before addressing the parties’ competing arguments, we revisit some first principles of search and seizure
because those principles, ultimately, are what this case
turns on.
At issue is the constitutionality under Article I, section 9, of the warrantless seizure of defendant’s backpack.
For purposes of that provision, a “seizure” of property “occurs
when an officer significantly interferes with a person’s possessory or ownership interest in property.” State v. Fulmer,
366 Or 224, 229,
460 P3d 486 (2020). A “seizure conducted
without a warrant is per se unreasonable, unless that …
seizure falls within one of the specifically established and
well delineated exceptions to the warrant requirement.”
Id. at 230 (internal quotation marks omitted).
As a procedural matter, in the context of a motion
to suppress, the state, not a defendant, bears the burden
of demonstrating that a warrantless seizure or search falls
within one of the “specifically established and well delineated exceptions to the warrant requirement.” Id. If the
state does not make that showing, then—subject to some
exceptions not pertinent here—the defendant is entitled to
suppression of any evidence obtained through or following
the unconstitutional seizure or search.
Id.
Applying those principles to the facts before us, we
agree with the parties that a seizure occurred. We disagree,
though, with the state’s premise that an arrest, in and of
itself, necessarily effects a seizure of the arrestee’s property, such that the lawful arrest of defendant as a matter
of law resulted in a lawful seizure of the property on her
person. That is because the process of an arrest does not,
in and of itself and of its own force, necessarily result in a
significant interference with the arrestee’s property interests in the property on the arrestee’s person. If the officers
never removed defendant’s backpack from her person and
took no other steps to interfere with defendant’s possession and control of the backpack, it would be difficult to say
Cite as 304 Or App 293 (2020) 297
that a seizure occurred for purposes of Article I, section 9.
Here, though, officers removed defendant’s backpack from
her possession. That constituted a significant interference
with her possessory interest in the backpack and, therefore, was a seizure of the backpack for purposes of Article I,
section 9.
Because that seizure occurred without a warrant,
the state had the burden of showing that the seizure fell
within one of the established, delineated exceptions to the
warrant requirement. But the state did not clearly identify
an established exception to the warrant requirement authorizing the warrantless seizure of defendant’s backpack or
show that the seizure of the backpack was authorized by
such an exception. Instead, the state’s main theory below
seemed to be that defendant’s lawful arrest by its own force
both resulted in and authorized the seizure of all of the property on defendant’s person—at least where, as here, there
was no third party on the scene to which defendant could
give that property. The problem with that argument is that
the Supreme Court long ago rejected the contention that a
lawful arrest allows for the lawful seizure of the arrestee’s
personal property.
In State v. Lowry, 295 Or 337,
667 P2d 996 (1983),
abrogated in part by State v. Owens,
302 Or 196,
729 P2d
524 (1986), the Supreme Court held unconstitutional the
warrantless seizure of a pill bottle taken from the defendant’s person during the course of an arrest “for a crime
with which the bottle had nothing to do.”
295 Or at 347. The
court explained that “the mere arrest and custody, divorced
from the reasons for the arrest, do not subject a person and
his belongings to unlimited inquisitorial powers that would
not apply if he were not arrested.”
Id. at 348. Rather, the fact
of arrest authorizes the seizure of narrow categories of personal effects, including effects that related to the probable
cause for the arrest, and unrelated effects “if their nature as
contraband is evident on sight.”
Id. Said another way, a lawful arrest does not, in and of itself, allow for an “exploratory
seizure” of the effects on the person of an arrestee. Owens,
302 Or at 204 (internal quotation marks omitted). Thus, the
state is incorrect that the fact of a lawful arrest, of its own
298 State v. Edwards
accord, allows for the constitutional seizure of all personal
property on the arrestee’s person.1
Apart from its theory that defendant’s lawful arrest,
standing alone, allowed for the seizure of defendant’s backpack, the state has not identified or otherwise shown that a
recognized warrant exception allowed for the warrantless
seizure of the backpack under the circumstances present
here. That does not mean that no such exception exists—
just that the state has not clearly identified an applicable
exception and proved that the seizure of the backpack fell
within it, as it was required to do to withstand defendant’s
motion to suppress. Fulmer, 366 Or at 230. The trial court
for that reason erred when it denied defendant’s motion to
suppress. And, on this record, that error was not harmless.
Reversed and remanded.
1
The state acknowledges in its brief that, in the trial court, it disavowed
any reliance on the theory that the seizure was permissible under the searchincident-to-arrest exception to the warrant requirement, and, consistent with its
position below, does not otherwise argue that the seizure of the backpack is the
type of lawful seizure-incident-to-arrest contemplated in Lowry.
