State v. Thirdgill

613 P.2d 44 (1980)

46 Or.App. 595

STATE of Oregon, Appellant, v. Thomas E. THIRDGILL, Respondent.

No. DA 148345-7804; CA 16155.

Court of Appeals of Oregon.

Argued and Submitted March 19, 1980.

Decided June 16, 1980.

*45 Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Steven V. Humber, Portland, argued the cause for respondent. With him on the brief was Danner & Humber, Portland.

Before JOSEPH, P.J., and WARDEN and WARREN, JJ.

JOSEPH, Presiding Judge.

The state appeals from the trial court's order sustaining defendant's motion to suppress evidence obtained as a result of a warrantless search. The issue is whether the court erred in ordering the suppression based on its conclusion that the "inventory search" of defendant's car trunk was unreasonable.[1]

On March 31, 1978, police officers were dispatched to a restaurant in Portland to investigate a theft of services. The manager advised the officers that defendant had ordered breakfast a $1.70 order of waffles, had consumed the meal and then had said he could not pay for it. The officers asked defendant to step outside the restaurant, where he was searched, placed in handcuffs and put in a police car parked directly in front of the restaurant.

The officers became aware that defendant's car was in the restaurant's parking lot.[2] It was lawfully parked five or six spaces distant from the officers' car. Its doors were locked, as was the trunk, but one window was broken out. The officers obtained the car keys in the search of defendant and proceeded to conduct a search of the car.

Several articles of clothing and a television set were visible in the interior of the car. Some but not all of the articles found in the interior were intemized on the vehicle report. One officer unlocked and opened the trunk of the car. In it he found six telephones, which were labelled "not for sale" and "property of Bell Telephone." The telephones' wires appeared to have been ripped out of installed connections. *46 They were seized. Defendant was indicted for theft of the phones. O.R.S. 164.045.

The state seeks to justify the search of the locked trunk on the basis that the telephones were discovered in the course of a valid inventory search of a legally impounded vehicle. Defendant contends that an inventory search was not justified, that the vehicle was not lawfully impounded, and that, in any event, the scope of any inventory search does not extend to a locked trunk.

The Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 706 (1973), noted that, as a part of the police "community caretaking functions," automobiles are frequently taken into police custody. Following a lawful impoundment, under Dombrowski, police may conduct a good faith inventory search without first obtaining a warrant. Routine police practice of securing and inventorying a vehicle's contents to protect the owner's personal property and to protect the police from claims for lost or stolen property or to protect them from potential danger was upheld in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).

Inventory searches are warrantless searches and are per se unreasonable, so the state bears the burden of justification. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In this instance the state relies on State v. Keller, 265 Or. 622, 510 P.2d 568 (1973).[3] The court there described the case as involving "a lawful arrest followed by a reasonably required inventory search of the car's contents preparatory to having the automobile towed away and impounded." 265 Or. at 624, 510 P.2d at 569. The court did not say why the inventory was "reasonably required," but the facts reveal that the defendant was stopped while driving by officers who knew that her license had been suspended two weeks earlier. They determined that her license was still suspended and placed her in custodial arrest. Her only passenger was intoxicated, and he was also arrested.

Under those facts, the court concluded that an inventory search of the car's contents was "reasonably required" prior to having the vehicle towed off the street and impounded. In State v. Weeks, 29 Or. App. 351, 563 P.2d 760 (1977), we concluded that the impoundment of a vehicle was a reasonable police procedure, until such time as the owner could be notified, where the legal owner was not present and no one who was present could establish that the car was in his possession with the consent of the legal owner. See State v. Childers, 13 Or. App. 622, 511 P.2d 447, rev. den. (1973); on remand, 18 Or. App. 564, 526 P.2d 446 (1974).

In this instance, defendant's automobile was located in a parking lot used exclusively for the restaurant's customers. That was not a situation where the car had to be removed from a public highway (Cady v. Dombrowski, supra); it was not unattended, obstructing traffic or illegally parked (South Dakota v. Opperman, supra); nor was there any indication that the vehicle had been stolen or used in the commission of a crime so that its retention as evidence was necessary. Cf. State v. Walden, 15 Or. App. 259, 515 P.2d 407 (1973), rev. den. (1974) and State v. Brewton, 19 Or. App. 899, 529 P.2d 967 (1974), rev. den, cert. den. 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975) (where the officers had probable cause to search the vehicles). No doubt was raised as to the ownership of the car. State v. Weeks, supra; see State v. Houser, 21 Wash. App. 30, 584 P.2d 410 (1978). No one asked that the car be removed.

Under the circumstances, impoundment of defendant's vehicle was not called for. The inventory search of the vehicle was unlawful, and evidence obtained as a result was properly suppressed.

Affirmed.

[1] The court concluded:

"* * * If the search is justified at all it would have to be on the basis of a routine inventory search. The court concludes that the search of the trunk under the circumstances of this case was unreasonable. * *"

[2] The record is not clear as to how the officers learned that defendant's car was present, and they testified at the suppression hearing that they could not remember how they came to know. One officer stated that "defendant possibly said" he was living in his car. The trial court found that defendant did not identify the car as his own, willingly surrender his keys to the car nor consent to its search.

[3] The state also relies on State v. Crosby, 35 Or. App. 617, 582 P.2d 40, rev. den. 285 Or. 319 (1979), for the proposition that a locked trunk may be opened during an inventory search. We need not address the proper scope of a lawful inventory search because of our determination that impoundment was not reasonably required in this instance.