State v. Edwards

                                        60

Argued and submitted January 24, affirmed April 13, petition for review denied
                      September 1, 2022 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   AMBER LOUISE EDWARDS,
                    aka Amber Louise Gillilane,
                       Defendant-Appellant.
                  Washington County Circuit Court
                       19CR48573; A173172
                                    

    Defendant appeals her conviction for unlawful possession of heroin, challenging the denial of her motion to suppress. Defendant and her companion were
observed removing items from a Salvation Army donations trailer and putting
them in her companion’s truck. When a sheriff’s deputy arrived at the scene, they
admitted to the theft and voluntarily removed a variety of items from the truck
bed and walked them back to the donations trailer. The deputy searched the
truck for additional stolen items. In the cab, he found a small metal box, which
defendant admitted was hers. He opened the box to see if it contained any stolen
items and, instead, found a small amount of heroin and drug paraphernalia.
Defendant moved to suppress the evidence found in the metal box, arguing that
the search was unreasonable under Article I, section 9, of the Oregon Constitution.
Held: The court did not err in denying defendant’s motion to suppress. Opening
the metal box was justified as part of a search incident to arrest for theft, because
the box was in defendant’s immediate vicinity, and, on the particular facts, it was
reasonable to believe that stolen items could be concealed in the box.
    Affirmed.



    Patricia Crain, Judge.
   Sarah De La Cruz, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
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  AOYAGI, J.
  Affirmed.
62                                           State v. Edwards

        AOYAGI, J.
         Defendant and her companion were observed stealing items from a Salvation Army donations trailer. That led
to an encounter with a sheriff’s deputy, during which the
deputy searched defendant’s companion’s truck. The deputy
found heroin and drug paraphernalia inside a small metal
box located in the truck’s cab. Defendant was subsequently
convicted of unlawful possession of heroin, ORS 475.854(2)(a)
(2017), amended by Or Laws 2021, ch 2, § 14; Or Laws 2021
ch 591, § 36. On appeal, she contends that the trial court
erred in denying her motion to suppress, because the evidence was found in an unreasonable search in violation of
Article I, section 9, of the Oregon Constitution. For the following reasons, we affirm.
                            FACTS
         We review the denial of a motion to suppress for
errors of law. State v. Ehly, 

, 

 (1993).
We are bound by the trial court’s factual findings if there is
constitutionally adequate evidence to support them. 

 We
state the facts, which come almost entirely from the deputy’s
testimony, accordingly.
         Around 8:30 p.m. on a summer night, the
Washington County Sheriff’s Office received two 9-1-1 calls
reporting that two or three people were removing items
from a Salvation Army donations trailer parked in a grocery store parking lot. At least one report included a vehicle
description. A deputy drove to the location, which took about
20 minutes, and found a vehicle parked near the donations
trailer that matched the description. The vehicle was an
“open bed pickup truck” with “a bunch of stuff in the bed.”
The bed was covered by a tarp, but “stuff” was “sticking out”
from under the tarp. Inside the truck’s cab were “a bunch
of different things,” like “[b]ackpacks and random items.”
The area “behind the driver’s and the passenger’s seat was
stacked with bags. Individual items of things just kind of
filled up with things.”
        A man named Douglas was sitting in the driver’s
seat, while defendant was either sitting in the passenger
seat or standing by the passenger door. The deputy told
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them that there had been a report of “a truck matching
this description” taking items from the Salvation Army
donations trailer. In response, defendant and Douglas were
“cooperative” and “fairly forthcoming,” talked with the deputy “about the theft,” and “started removing items from the
back of the pickup truck and agreeing to take them back to
the Salvation Army trailer.” The deputy does not remember
what the items were, but defendant and Douglas removed
“various items” of “various sizes” from the truck bed and
walked them back to the donations trailer.
         At that point, the deputy believed that he had probable cause to arrest defendant and Douglas for theft. The
deputy proceeded to search the truck, without a warrant
or consent, looking for “additional stuff.” From past experience, he knew that “people can drop off whatever they want”
at a Salvation Army donation center, from “things as large
as furniture down to, you know, Christmas ornaments and
little—small electronics and bric-a-brac”; “it’s a pretty kind
of open concern as far as what gets dropped there.” Given the
nature of Salvation Army donations, as well as “the kind of
random items that were coming out of the bed of the truck,”
the deputy believed that “anything inside the truck” potentially could have been taken from the donations trailer.
         In the truck’s cab, behind the driver’s seat, the deputy found a small pink-and-purple metal box. The deputy
asked who it belonged to. Defendant said that it was hers,
and Douglas may have said the same. Believing that the
box belonged to defendant1 but that it could contain items
stolen from the donations trailer, the deputy opened the
box and found needles, small items of drug paraphernalia,
and a usable amount of heroin. After Mirandizing her, the
deputy asked defendant about the contents of the box, and
she admitted that it was her “kit” and that it contained a

     1
       When asked whether he knew who the metal box belonged to when he found
it, the deputy testified that he did not know “before [he] asked.” To the extent that
the state argues for the first time on appeal that the box itself could have been
stolen, that is inconsistent with the deputy’s testimony. The deputy never suggested that he disbelieved that the box belonged to defendant, and he implicitly
acknowledged his belief that it did belong to her, by indicating that he knew who
it belonged to once he asked. Our understanding of the deputy’s testimony also is
consistent with the trial court’s ruling.
64                                                         State v. Edwards

“teener” of heroin, which the deputy understood to mean $10
worth of heroin.
          Defendant was charged with unlawful possession of
heroin. She moved to suppress the evidence from the metal
box as resulting from an unconstitutional search. The court
readily concluded that the search of the truck was justified
as a search incident to arrest and otherwise,2 and it asked
the parties to focus on the opening of the metal box. The
state successfully argued that opening the metal box was
permissible as a search incident to arrest for theft, because
items stolen from the donations trailer could be any size,
including small enough to fit into the metal box. The court
denied the motion to suppress, concluding that it was objectively reasonable for the deputy to believe that the metal
box could contain items stolen from the donations trailer,
because the deputy “was looking for all sizes of items, big,
little, and trinkets and Christmas ornaments, they could
be evidence of theft, and it could have been found in the
box.”
           Defendant was convicted of heroin possession.
                                 ANALYSIS
         Article I, section 9, guarantees citizens the right to
be free from unreasonable searches. Or Const, Art I, § 9 (“No
law shall violate the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
search or seizure ….”). A warrantless search is presumptively unreasonable, unless it satisfies one of the recognized
exceptions to the warrant requirement. State v. Bridewell,

, 

 (1988). It is the state’s burden
to prove by a preponderance of the evidence that an exception to the warrant requirement applies. State v. Marshall,

, 

 (2013).
         A search incident to arrest is a recognized exception to the warrant requirement. State v. Caraher, 

      As to the search of the truck generally, the trial court also cited the “automobile exception” to the warrant requirement, which has since been abolished.
See State v. McCarthy, 

, 

 (2021). This case is unaffected
by that change in the law, however, because the trial court relied solely on the
search-incident-to-arrest exception with respect to the opening of the metal box.
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741, 743, 

 (1982). However, “under the Oregon
Constitution, the fact of arrest does not grant an unqualified right to search an arrestee’s person for crime evidence,”
State v. Owens, 

, 

 (1986), so certain requirements must be met for the exception to apply.
First, the arrest must be lawful, i.e., supported by a valid
warrant or probable cause. 

. Second, the purpose
of the search must be to protect an officer’s safety, to prevent
the destruction of evidence, or to discover evidence of the
crime of arrest. State v. Mazzola, 

, 

 (2015). Third, the search must be reasonable in time,
scope, and intensity. State v. Gordon, 

,

 (1984), rev den, 

 (1985). As to scope
and intensity, the search must be limited to “areas where
the ‘instrumentalities’ or ‘fruits’ of the crime could reasonably be concealed, not just could possibly be concealed.”
State v. Ramirez, 

, 

 (2020)
(emphases in original). Closed containers may be opened
and searched when “found on or immediately associated
with the arrestee, but only when it is reasonable to believe
that evidence of a crime for which the person was arrested
could be concealed there.” Owens, 

. “The test
is the reasonableness of the search in light of the circumstances of the particular case.” 

         Defendant does not contest that probable cause
existed to arrest her for the crime of theft. See 

(probable cause exists when an officer subjectively believes
that a crime has been committed and that belief is objectively reasonable under the circumstances). Nor does she
contest that the purpose of the deputy’s search was to look
for evidence of theft. Rather, her argument is directed to the
scope and intensity of the search, which she contends was
unreasonable under the circumstances. Defendant points to
the absence of evidence that stolen items were placed in the
cab, the absence of evidence that the metal box “would contain evidence of theft,” and the deputy’s lack of information
as to “the particular items, sizes of items, or types of items
that were stolen.” In short, defendant argues that the fact
that potentially anything could have been stolen from the
donations trailer did not justify a search of everything in
her possession.
66                                         State v. Edwards

        The state responds that it was reasonable for the
deputy to believe that stolen items could be concealed inside
the metal box. The state argues that there was no way to tell
what had been taken from the donations trailer and that the
general nature of Salvation Army donations meant that virtually anything in the truck could have been stolen, including very small items that would fit in the metal box.
          Whether a search incident to arrest is reasonable
in scope and intensity is a fact-bound inquiry, dependent
on the circumstances of the individual case. 

. In
many cases in which an officer has been held to have lawfully opened a closed container during a search incident to
arrest, there was a situation-specific reason to believe that
a fruit or instrumentality of the crime existed and could be
concealed in that specific container. For example, in Owens,
it was reasonable to search the defendant’s purse incident to
her arrest for theft, where she had been seen taking small
items off the shelves in a drug store and placing them in
her purse. 

. In State v. Scott, 

, 

 (2022), it was reasonable to search the
defendant’s purse incident to her arrest for theft, where
she had been seen stealing items from a Home Depot, the
purse was large enough to hold items sold at Home Depot,
the purse was by her feet on the floorboard with a new and
unopened power tool next to it, and a box was visible inside
the purse. In State v. Hartley, 

, 

, rev den, 

 (1989), it was reasonable to search
the defendant’s car trunk incident to his arrest for pointing
a firearm at another, where the police received a report of
a man pointing a gun at people in a parking lot, officers
saw the defendant closing his trunk when they arrived, and
witness indicated that the defendant had put the gun in his
trunk. In State v. Clew, 

, 

(2003), it was reasonable to search the defendant’s backpack
incident to his arrest for possession of marijuana, where
the backpack was next to his seat and had “a strong odor of
marijuana emanating from it.”
         There are also search-incident-to-arrest cases, however, in which we have approved of the search of a closed container because it was reasonable to believe more generally
that a fruit or instrumentality of the crime could exist and
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could be concealed in that type of container. As we said in
State v. Burgholzer, 

, 

 (2002),
an officer need not have probable cause to open a particular
container; rather, “once an officer has probable cause to support the arrest, the proper inquiry is the reasonableness of
the time, scope, and intensity of the search for evidence of
the crime for which the defendant is being arrested.” And,
again, what is reasonable is a fact-dependent inquiry that
turns on the totality of the circumstances. Owens, 

.
         In Burgholzer, 

, we held that it
was reasonable to search a cigarette pack found next to the
defendant, incident to his arrest for driving under the influence of a controlled substance, where the arresting officer
testified to having found controlled substances in cigarette
packs “hundreds of times.” In Ramirez, 

, it
was reasonable to search an Altoids tin found inside a nylon
bag inside the defendant’s backpack, incident to his arrest
for giving false information to a police officer, where the officer was looking for defendant’s identification (which would
be evidence of that crime) and testified to having previously
found identification in “Altoids tins or other containers the
size and shape of an Altoids tin.” By contrast, in State v.
Martin, 

, 

 (1993), it was
unreasonable to search a Dristan tin found on the defendant’s person, incident to his arrest for driving under the
influence of alcohol, where the tin “could not reasonably be
expected to contain evidence of [that crime].”
         The case that is perhaps the closest to this one
is State v. Curtis, 

, 

 (2020). In
Curtis, the defendant was arrested for criminal trespass
into a vehicle, after he was found sleeping in a truck that
was not his and that he did not have permission to enter.

. At the time of his arrest, the defendant was carrying on his person a box that was the size and shape of a sunglasses case. 

 We held that it was reasonable to search the
box incident to arrest. 

. It was uncertain whether
the truck’s door had been unlocked (as the owner acknowledged was possible) or whether the defendant had used tools
to break into the truck, and the arresting officer described
“a type of modified key” that could be used to break into a
68                                          State v. Edwards

vehicle. 

 Under the circumstances, it was reasonable to
believe that the defendant could have that type of tool and
that, if he did, “the box, given its size and shape, could contain such tools.” 

          The search of the metal box in this case was reasonable for similar reasons. The search was conducted incident
to defendant’s arrest for theft. The metal box was in close
proximity to where defendant was sitting or standing when
the deputy arrived, and she does not contend otherwise. It
was uncertain whether defendant and Douglas had placed
stolen items in the cab, but it was reasonable to believe that
they could have. By the time that the deputy arrived, they
had been at the location for more than 20 minutes, and
there were bags “stacked” behind the driver’s and passenger’s seats and “[b]ackpacks and random items” inside the
cab. Further, it was reasonable to believe that, if the cab did
contain stolen items, some items could be small enough to
fit into the metal box, given not only the general nature of
Salvation Army donations but also the deputy’s testimony
that he saw defendant and Douglas take items of “various
sizes” from the truck bed back to the donations trailer.

          On the whole, given the totality of the circumstances, it was reasonable for the deputy to believe that stolen goods could be concealed in the metal box found in the
cab. See Owens, 

 (allowing for the search of a
closed container “found on or immediately associated with
the arrestee” if, under the circumstances of the particular
case, “it is reasonable to believe that evidence of a crime for
which the person was arrested could be concealed there”).
The facts of this case are somewhat unusual, particularly
with respect to the unknown nature of the stolen items, and
it presents a close question. We also do not mean to suggest,
even in these unusual circumstances, that the deputy could
search literally anywhere in the truck, no matter how inaccessible or unlikely to contain stolen items. See Ramirez,

 (a reasonable search is limited to “areas
where the ‘instrumentalities’ or ‘fruits’ of the crime could
reasonably be concealed, not just could possibly be concealed” (emphases in original)). We address only the metal
box, which, on these particular facts, it was reasonable to
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search. The trial court did not err in denying defendant’s
motion to suppress.
        Affirmed.