271
Argued and submitted October 21, reversed and remanded December 14, 2022,
petition for review allowed May 4, 2023 (371 Or 60)
See later issue Oregon Reports
STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON THOMAS WILCOX,
Defendant-Appellant.
Washington County Circuit Court
19CR75468; A175891
522 P3d 926
Defendant appeals a judgment of conviction for two counts of felon in possession of a restricted weapon. ORS 166.270(2). He assigns error to the trial court’s
denial of his motion to suppress evidence obtained during an inventory of a backpack that he was wearing when taken into custody on a civil detox hold. See ORS
430.399. Among other things, he contends that the warrantless seizure of his
backpack was unlawful under Article I, section 9, of the Oregon Constitution.
Held: The state did not identify an applicable exception to the warrant requirement. Because it was the state’s burden to do so, the trial court erred when it
denied defendant’s motion to suppress.
Reversed and remanded.
Andrew Erwin, Judge.
John Evans, 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.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Hellman, Judge,
and Landau, Senior Judge.
LANDAU, S. J.
Reversed and remanded.
272 State v. Wilcox
LANDAU, S. J.
Defendant appeals a judgment of conviction for two
counts of felon in possession of a restricted weapon. ORS
166.270(2). He assigns error to the trial court’s denial of his
motion to suppress evidence obtained during an inventory
of a backpack that he was wearing when taken into custody
on a civil detox hold. See ORS 430.399. Among other things,
he contends that the seizure of his backpack was unlawful. That argument is determinative, so we do not reach his
other arguments. For the reasons that follow, we 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).
The relevant facts are not in dispute. Defendant
went to a police station to report being assaulted at a nearby
transit station. Officer Baisley and his partner, Deputy
Quick, responded. When they arrived to take defendant’s
statement, defendant had been loaded into an ambulance
and was ready for transport to a hospital. The officers followed him to the hospital and waited until he was available to discuss the alleged assault. While waiting to enter
the exam room, they could hear defendant yelling at the
nurses. As Baisley later recalled, defendant was “[d]isgruntled, argumentative.” When Baisley and Quick were able to
enter the exam room, the officers got the sense that defendant was intoxicated. Defendant made it clear that he did
not want to talk to them about the alleged assault, so they
turned to leave. As they were crossing the parking lot to
their vehicle, hospital security stopped the officers to ask for
help. Security told the officers that defendant was refusing
medical treatment and they were going to discharge him.
The officers returned to the exam room, placed defendant
in handcuffs, and advised him that he was being taken
into custody for transport to a detox facility. Baisley and
Quick walked defendant out to the patrol car. Defendant
had a backpack with him. Quick conducted a search of
defendant’s person and then placed him in the patrol car.
Cite as 323 Or App 271 (2022) 273
Meanwhile, Baisley conducted an inventory of defendant’s
backpack.
During the inventory search, Baisley found a butterfly knife. Because butterfly knives are restricted weapons, the officer did a criminal history check on defendant
and found that he had previously been convicted of a felony.
Quick then arrested defendant for the crime of felon in possession of a restricted weapon, and the officers transported
him to the jail rather than the detox facility. Baisley conducted an additional inventory search of the backpack at
the jail and found a second butterfly knife.
Defendant was charged with two counts of felon
in possession of a restricted weapon, ORS 166.270(2). At
trial, he moved to suppress the evidence of the knives on
three grounds. First, he argued that, when Quick placed
him in handcuffs, that act converted the detention into
an unlawful arrest without probable cause. Second, defendant argued that the warrantless seizure of his backpack
violated his rights against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution.
Third, he argued that the inventory search of defendant’s
backpack also violated his rights under Article I, section 9.
The trial court denied the motion to suppress. Defendant
waived a jury, and the trial court found him guilty on both
counts.
On appeal, defendant contends that the trial court
erred in denying his motion to suppress. In support, he
advances substantially the same three arguments he
asserted below. As we have noted, his second argument—
that the warrantless seizure of his backpack violated
his rights under Article I, section 9—is determinative.
According to defendant, this case is squarely controlled by
our decision in State v. Edwards, 304 Or App 293, 294,
466
P3d 1034 (2020), which he reads as holding that, even if the
seizure of a person is otherwise authorized, the warrantless
seizure of that person’s property must be separately justified
by an exception to the warrant requirement. In this case,
defendant argues, the state has failed to supply such an
applicable exception.
274 State v. Wilcox
In response, the state advances two arguments.
First, the state argues that “temporarily removing” defendant’s backpack amounted to no more than a “di minimis”
interference with his possessory or ownership interest in
the property. As a result, the state asserts, there was no
seizure that requires any separate justification. Second,
the state argues that Edwards is distinguishable. In the
state’s view, Edwards involved a police seizure of personal
property occurring “separately from the defendant’s arrest,”
while here the seizure of defendant’s backpack was “integral
to the seizure of [his] person … to effectuate defendant’s
transport to a detox facility.”
We agree with defendant. Article I, section 9, of
the Oregon Constitution establishes a right of the people
to be secure against unreasonable searches or seizures of
their property. State v. Fulmer, 366 Or 224, 229,
460 P3d
486 (2020). A search or seizure conducted without a warrant is per se unreasonable unless it falls within one of the
established exceptions to the warrant requirement. State
v. McCarthy,
369 Or 129, 141,
501 P3d 478 (2021). It is the
state’s burden to establish the applicability of any such
established exception. State v. Walker,
350 Or 540, 553,
258
P3d 1228 (2011). A “seizure” for purposes of Article I, section 9, occurs when there is a “significant interference, even
a temporary one, with a person’s possessory or ownership
interests in the property.” State v. Barnthouse,
360 Or 403,
413,
380 P3d 952 (2016) (quoting State v. Juarez-Godinez,
326 Or 1, 6,
942 P2d 772 (1997)).
Our decision in Edwards illustrates those basic
principles as applied to facts very close to those in this case.
In Edwards, the defendant had an outstanding arrest warrant for failure to appear. A police officer spotted her riding
a bicycle, wearing a backpack. The officer stopped her and
arrested her on the warrant. The backpack was removed
from defendant, and she was placed in handcuffs. Once
removed, the backpack’s contents were examined pursuant
to a local inventory policy that required the inventory of
belongings of a person being taken into custody. The search
uncovered evidence of methamphetamine. The defendant
moved to suppress the evidence obtained from the search
Cite as 323 Or App 271 (2022) 275
of her backpack on the ground that it had been unlawfully
seized without a warrant. The state argued that the seizure was lawful because arresting officers have authority
to seize the property of an arrestee. The trial court agreed.
304 Or App at 295.
We reversed. We concluded that, because the seizure of the backpack occurred without a warrant, the state
had the burden of showing that the seizure was justified
by a well-established exception to the warrant requirement.
Id. at 297. We noted that the only argument that the state
had advanced in that case was that the “defendant’s lawful
arrest by its own force both resulted in and authorized the
seizure of all of the property on defendant’s person.”
Id. The
problem with that argument, we noted, is that it is wrong; a
person’s lawful arrest does not allow for the seizure of all the
arrestee’s personal property.
Id. It may authorize a seizure
of “narrow categories” of personal effects, such as effects
related to the probable cause for arrest or readily apparent
contraband.
Id. But the defendant’s backpack did not fall
within such narrow categories.
Id.
With the foregoing principles in mind, we conclude
that both of the state’s arguments fail. First, as to whether
the officers actually seized defendant’s backpack, the case
law “clearly indicate[s] that a ‘seizure’ of property occurs
when police physically remove property from a person’s possession.” Juarez-Godinez, 326 Or at 6 (emphasis in original).
It is undisputed that police in this case physically removed
defendant’s backpack from his possession. The fact that the
removal could be characterized as “temporary” does not
alter the fact that a seizure occurred. Barnthouse,
360 Or
at 413 (seizure occurs upon a “significant interference, even
a temporary one, with a person’s possessory or ownership
interests in the property”).
Second, as for the state’s contention that Edwards
is distinguishable on its facts, we are not persuaded. In
Edwards, we concluded that the state had failed to justify its
seizure of the defendant’s backpack upon her arrest. Its only
argument was the erroneous contention that the seizure of
the defendant’s backpack was justified by its lawful seizure
of the defendant’s person for the purpose of transporting her
276 State v. Wilcox
to jail. 304 Or App at 297. In this case too, the state’s only
argument is that its seizure of defendant’s backpack was
justified by its lawful seizure of his person for the purpose of
transporting him to detox. As we observed in Edwards, with
the exception of certain narrow categories of property, the
lawful seizure of a person does not justify the warrantless
seizure of the person’s property.
Id. And, as in Edwards, the
state in this case has not established that defendant’s backpack falls within any of the narrow categories of effects that
lawfully may be seized upon the seizure of the person.
We do not suggest that, on the record before us, no
applicable exception to the warrant requirement exists. We
hold only that the state has not identified one. Because it
was the state’s burden to do so, the trial court erred when it
denied defendant’s motion to suppress.
Reversed and remanded.
