State v. Kumenaker

                                         9

    Argued and submitted April 30, 2019, North Salem High School, Salem;
                         affirmed August 19, 2020


                       STATE OF OREGON,
                        Plaintiff-Appellant,
                                  v.
                 JACOB ZAVALA KRUMENAKER,
                      aka Jacob Krumenaker,
                       Defendant-Respondent.
                  Tillamook County Circuit Court
                       17CR56442; A166647
                                    

    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, 

, 

(1984). On appeal, the state argues that the court misapplied Atkinson and that
the inventory was constitutionally valid. Held: The trial court did not err in its
application of Atkinson, and 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.
    Affirmed.



   Mari Garric Trevino, Judge.
   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.
   ORTEGA, P. J.
   Affirmed.
10                                        State v. Kumenaker

         ORTEGA, P. J.
         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, 

,

 (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
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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:
      “A vehicle that has been impounded, seized as evidence
   in a criminal investigation or seized for forfeiture by the
   City Police Department, shall be inventoried for condition
   and property contents to identify damage and to list all
   valuables in the vehicle to avoid civil liability. The search
   and inventory shall be conducted pursuant to current City
   Police Department policies and procedures.”
CCT 72.060(D). The Tillamook Police Department Policy
Manual includes procedures for inventorying an impounded
vehicle. That policy provides, in part:
      “The contents of all impounded vehicles shall be inventoried in accordance with the following procedure:
      “(a) An inventory of personal property and the contents of open containers will be conducted throughout the
   passenger and engine compartments of the vehicle ….
      “…
      “(c) Closed containers located either within the vehicle
   or any of the vehicle’s compartments will not be opened for
   inventory purposes except for the following, which shall be
   opened for inventory: wallets, purses, coin purses, fanny
   packs, personal organizers, briefcases or other closed containers designed for carrying money or small valuables,
   or closed containers which are designed for hazardous
   materials.
      “(d) Other closed containers shall be opened and
   inventoried if the owner acknowledges they contain cash in
   excess of $10, valuables or a hazardous material.
      “(e) Any valuables, to include cash in excess of $10
   or property valued at more than $200, located during the
   inventory process will be listed ….
      “…
   “These inventory procedures are for the purpose of protecting an owner’s property while in police custody, to provide
   for the safety of officers, and to protect the Department
12                                           State v. Kumenaker

     against fraudulent claims of lost, stolen, or damaged
     property.”
         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:
         “When property is obtained or seized by the Police
     Department, as evidence, found property or safe keeping,
     all property shall be completely inventoried to preclude
     claims of loss, damage or theft. Officer(s) conducting the
     inventory shall always follow procedures as set forth by the
     Tillamook Police Department Policy Manual, to include
     Chapters 5 and 8, relating to property. Property seized or
     obtained shall always be inventoried.
        “As part of the inventory process, the opening of closed
     containers intended primarily to store or carry valuables,
     such as purses, wallets, fanny packs, or back packs is
     authorized. (State v. Bean, 

, 

     (1997)[)]. This information shall be documented on the
     property form and if applicable, the vehicle impound form.”
         At the suppression hearing, when asked about
imple-mentation 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
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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 imple-mentation 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:
    “The Court begins by noting that the defense has not contested the fact that the vehicle was lawfully impounded.
    The first question is therefore whether or not Officer
    Greiner followed the policy. This turns on the question
    of whether or not the backpack was a ‘closed container
    designed for carrying money or small valuables.’ The Court
    finds that it was for a number of reasons. First, it is one
    of the items specifically enumerated in the City’s policy.
    Second, it is objectively likely that the small backpack pictured in State’s Exhibit 7 contained valuables. Inside the
    backpack was an additional soft leather pistol case that
    the officer could tell contained a gun when he removed it
    from the backpack. Officer Greiner testified that a gun is a
    ‘valuable’ and he opened the case. Although there is no case
    law on this point, the Court agrees. Obviously a gun is a
    weapon and the Tillamook City policy does not specifically
    mention opening containers containing weapons. However,
    a gun is also a valuable to be inventoried at least under the
    circumstances of this case.

    1
      The three requirements in Atkinson for a lawful inventory can be summarized as follows: “(1) the vehicle is lawfully in police custody, (2) the inventory
policy is properly authorized and designed and systematically administered so
that the inventory involves no exercise of discretion by police, and (3) the officer
directing or taking the inventory does not deviate from the established policies
or procedures.” State v. Fulmer, 

, 

 (2020) (internal
quotation marks omitted).
14                                             State v. Kumenaker

         “The next question is whether the inventory was conducted ‘pursuant to a properly authorized administrative
     program, designed and systematically administered so that
     the inventory involves no exercise of discretion by the law
     enforcement person directing or taking the inventory.’ The
     defense does not contest that the City of Tillamook lawfully
     authorized the inventory policy and program contained in
     Exhibits 1, 2, and 3. That leads to the question of whether
     or not the program is ‘systematically administered so that
     the inventory involves no exercise of discretion by the law
     enforcement person directing or taking the inventory.’ This
     question is the major issue in this case and the Court could
     not find any case law on this point. The testimony at the
     hearing from both Chief Wright and Officer Greiner is
     that in other cases as part of inventories under the City of
     Tillamook’s inventory program they have searched duffel
     bags, fishing tackle boxes, suitcases and large backpacks,
     depending on the particular circumstances of the individual case. This testimony while it makes perfect sense in a
     practical world, is a text book definition of discretion. Thus,
     the evidence before the Court is that while the inventory
     policy does not allow for discretion, both the chief of police
     and the officer involved in this case are regularly exercising
     discretion when deciding which items to search as part of
     the inventory. Therefore the Court must answer ‘no’ to the
     question of whether or not the City of Tillamook’s inventory
     policy is being systematically administered to eliminate
     officer discretion.”

The state appeals from the trial court’s order suppressing
the gun.
         We review the trial court’s determination on the
validity of the inventory for errors of law, “taking as binding
the trial court’s findings of historical facts if there is evidence in the record to support them.” State v. Bernabo, 

, 

 (2008).
         Under Article I, section 9, “a search or seizure conducted without a warrant is per se unreasonable, unless
that search or seizure falls within one of the ‘specifically
established and well delineated exceptions’ to the warrant
requirement.” State v. Fulmer, 

, 

(2020) (quoting State v. Nagel, 

, 

(1994)). One “well delineated exception” that the state may
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rely on is the court-created inventory exception, as explained
in Atkinson. 

 “The burden is on the state to prove the lawfulness of the inventory.” Bernabo, 

.
          In Atkinson, the Supreme Court set out the requirements for a valid inventory. First, the court set out the three
primary purposes used “to justify a government policy of
inventorying impounded personal property”: (1) “inventories protect the owner’s property while in police custody”;
(2) “inventories reduce and tend to prevent the assertion of
false claims against police”; and (3) “in an age of increasing
violence, some danger to police and others arises from the
impoundment of uninventoried property.” Atkinson, 

 (citing United States v. Mitchell, 458 F2d 960, 961 (9th
Cir 1972), United States v. Kelehar, 470 F2d 176, 178 (5th
Cir 1972), and Cardenas v. Pitchess, 506 F2d 1224 (9th Cir
1974)). Reliance on the third justification, however, “must
have a concrete basis in specific circumstances; it may not
simply be assumed as a basis of general precautionary practice.” 

.
          The court then explained that, “[i]f the responsible
policy makers decide that protective reasons of this nature
justify prescribed procedures for inventorying the contents
of an impounded vehicle, such a policy is not inherently
‘unreasonable’ within the meaning of Article I, section 9, if
it complies with the following conditions[.]” 

 Those conditions are that (1) “[t]he vehicle must be lawfully impounded,”

 and (2) “any inventory must be conducted pursuant to a
properly authorized administrative program, designed and
systematically administered so that the inventory involves
no exercise of discretion by the law enforcement person
directing or taking the inventory,” 

. As part of the
second requirement, the court further explained:
       “If the evidence shows that the inventory deviated
   from the established policy or procedures of the particular
   law enforcement agency, the inventory should be deemed
   invalid. The scope of the inventory must be limited to
   that—an inventory. Objects found within the inventoried
   vehicle should be scrutinized only to the extent necessary
   to complete the inventory.”

 As a result, the Oregon Supreme Court has summarized
Atkinson as having three requirements with respect to an
16                                        State v. Kumenaker

inventory of the contents of an impounded vehicle: “(1) the
vehicle is lawfully in police custody, (2) the inventory policy is properly authorized and designed and systematically
administered so that the inventory involves no exercise of
discretion by police, and (3) the officer directing or taking
the inventory does not deviate from the established policies
or procedures.” Fulmer, 

 (internal quotation
marks omitted).
         The court emphasized that the Atkinson requirements for a valid inventory are informed by the searching
agency’s justification for the inventory: “Read together,
Atkinson and its progeny stand for the proposition that the
inventory exception to the warrant requirement applies only
when its use serves the administrative purposes that justify
the exception and is consistent with the rights protected by
Article I, section 9.” Fulmer, 

. Thus, the court
stated that “the contours and scope of the [inventory] exception are circumscribed by the justification for that exception.”

; see also State v. Willhite, 

, 

 (1992) (“Politically accountable officials must decide
as a matter of policy when, how and for what purposes private property in official custody should be examined. …
For a policy to be properly authorized, it must require a procedure that is rationally related to legitimate governmental
interests. Therefore, the justifications offered for the policy
have to be considered in determining the validity of the policy and the lawfulness of its execution.”).
         With that background in place, we turn to the arguments of the parties on appeal. The state argues that the
trial court erred in this case, because the Tillamook inventory policy does not leave officers with too much discretion.
The state argues that an officer exercising evaluative judgment to determine what constitutes a closed container that
holds a valuable or what is a valuable to comply with an
inventory policy does not make the policy invalid, citing State
v. Cleland, 

, 

 (2017), rev den, 

 (2018), and State v. Stone, 

, 

 (2009), rev den, 

 (2011). The state argues that
the fact that officers may have exceeded the bounds of the
Tillamook policy in other cases, by opening certain types of
containers, as found by the trial court, does not mean that
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the officers hold excess discretion to act under the policy. In
that regard, the state asserts that the trial court misunderstood the “systematically administered” part of the inventory test, set out in Atkinson. The state argues that the test
is not whether officers may have failed to comply with the
policy in particular instances but whether the policy is mandatorily applied in all cases—that is, the state argues that
the “systematically administered” portion of the Atkinson
test requires only that the inventory policy be applied to all
inventories.
         Defendant responds that the record supports the
trial court’s factual finding that the policy was not systematically administered. The officers testified that they broadly
interpret the inventory policy with respect to closed containers and exercise discretion based on the circumstances
in individual cases to determine which closed containers
to open. Defendant asserts that, under Atkinson, “systematically administered” to remove officer discretion does not
apply just to the design of the inventory policy, but also to
how it is administered in practice by the police—that is, the
police must implement the policy in a way that removes individual officer discretion.
         In general, an inventory policy “must not permit
police to indiscriminately rummage through closed containers within a vehicle.” Stone, 

. “[P]roperty
is to be listed by its outward appearance; no closed, opaque
container may be opened to determine what, if anything, is
inside it so that the contents may be inventoried in turn.”
State v. Ridderbush, 

, 

 (1984).
We have recognized, however, that “[a]n inventory policy
may authorize officers to open closed containers that are
‘designed or likely to contain’ valuable items.” State v. Hite,

, 

 (2014) (quoting State v.
Williams, 

, 

 (2009)).
         We also have concluded that an inventory policy
that allows the opening of closed containers designed to hold
valuables is not unconstitutionally overbroad simply because
the officer must exercise judgment in determining whether
a container is designed to hold valuables. See, e.g., Stone, 

 (“By requiring an officer to open all closed
18                                         State v. Kumenaker

containers that the officer reasonably believes holds dangerous or valuable personal property, the Beaverton ordinance
eliminates officer discretion.”). Likewise, we have explained
that “our case law establishes that the level of discretionary
judgment involved in determining what constitutes a valuable does not render an inventory policy unconstitutionally
overbroad under Article I, section 9.” Cleland, 289 Or at 383.
Thus, as the state points out, under our case law the type
of discretion necessary for an officer to apply such policies
during an inventory—viz., determining whether a container
is one designed to hold valuables and determining what constitutes a valuable under the policy—does not render the
policy unconstitutionally overbroad.
        The precise issue presented here, however, is one we
have not previously confronted: whether evidence that police
are not administering an inventory policy according to its
nondiscretionary terms but instead are administering it
such that officers are exercising their individual discretion
to open various types of closed containers depending on the
circumstances of a particular inventory can render the policy unconstitutionally overbroad under Article I, section 9.
We conclude that, under Atkinson, it can.
         Under Atkinson, to be valid, “any inventory must be
conducted pursuant to a properly authorized administrative program, designed and systematically administered so
that the inventory involves no exercise of discretion by the
law enforcement person directing or taking the inventory.”

. And, as emphasized in Fulmer, “the inventory
exception to the warrant requirement applies only when
its use serves the administrative purposes that justify the
exception and is consistent with the rights protected by
Article I, section 9.” 

. When an officer is choosing to open a type of closed container “depending on the circumstances” of a particular inventory, instead of based on
whether the policy requires that particular container to be
opened, the inventory is not serving the valid purposes for
which inventories are permitted—to protect personal property and to protect against false claims—consistent with
the rights protected by Article I, section 9. See, e.g., Willhite,

 (a general policy that allowed an officer to
search wherever the officer thought to search based on his
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personal experience, instead of according to standardized
procedure, “is precisely the kind of individual discretion
that a policy for inventories has to preclude”).
         It logically follows that, when officers are opening closed containers “depending on the circumstances” of
an individual case because that practice is how the police
department is administrating the inventory policy, then the
police department is failing to systematically administer
the policy, as required by Atkinson, in a way that removes
officer discretion. That is, in those circumstances, the police
department’s failure to apply the inventory policy by its
precise terms moves beyond a mere individual “deviation”
from the policy in a particular inventory and into a failure
to systematically administer the policy in a way that serves
the purposes of the inventory and comports with Article I,
section 9.
        Here, the police chief testified that whether an officer, under the inventory policy, would open a tackle box,
suitcase, or duffel bag “depends on the circumstances,”
analogizing it to how an officer determines whether or not
to shoot someone who has a gun. He also testified that his
department has opened for inventory large backpacks, not
just day-pack style backpacks. Greiner, similarly, testified
that whether he would open certain containers “depends
on the situation.” Based on that testimony, the trial court
found:
   “The testimony at the hearing from both Chief Wright and
   Officer Greiner is that in other cases as part of inventories under the City of Tillamook’s inventory program they
   have searched duffel bags, fishing tackle boxes, suitcases
   and large backpacks, depending on the circumstances of
   the individual case. This testimony while it makes perfect
   sense in a practical world, is a text book definition of discretion. Thus, the evidence before the Court is that while the
   inventory policy does not allow for discretion, both the chief
   of police and the officer involved in this case are regularly
   exercising discretion when deciding which items to search
   as part of the inventory.”
        We are bound by the court’s findings that officers
of the Tillamook Police Department, in administering the
inventory policy, are exercising discretion to open closed
20                                       State v. Kumenaker

containers based on the circumstances of the individual
case, and not based on the standardized procedures of the
inventory policy that allow closed containers to be opened
based only on the nature of the closed container itself. As
discussed above, that is a failure to systematically administer the inventory policy in the manner required by Atkinson
for the policy to be constitutionally valid. “The burden is on
the state to prove the lawfulness of the inventory,” Bernabo,

, and here the state did not carry that burden. See State v. Cherry, 

, 

(2014) (“If an inventory policy is overbroad, an inventory conducted pursuant to the policy violates Article I, section 9.”);
State v. Nordloh, 

, 

 (2006)
(“The power to inventory a vehicle’s contents exists only pursuant to a properly authorized policy. Whether the policy
itself is properly authorized does not depend on the circumstances of the application of the policy to a particular defendant.”). Accordingly, we affirm.
        Affirmed.