State v. Cherry

When a jail deputy, pursuant to an invalid administrative inventory policy, removes items from defendant's pocket, the evidence discovered as a result of the search must be suppressed.

Defendant entered a conditional plea of guilty to two counts of identity theft and one count of giving false information to a peace officer. Defendant appealed from the resulting judgment, assigning error to the trial court's denial of his motion to suppress evidence. Defendant was arrested for giving false information to a peace officer. As Defendant's property was inventoried, an Officer discovered ten checks in defendant's pocket. The checks were from five different financial institutions and five different accounts. The Officer suspected that the checks were evidence of a crime, and turned them over to an investigator. After an investigation, the Officer filed a probable cause statement and cited defendant for two counts of identity theft. Defendant contends that the checks were found pursuant to a warrantless search therefore violating Article I section 9 of the Oregon Constitution and the Fourth Amendment. The State contended that the search was appropriate because it was pursuant to Marion County Sheriffs Office Policy. In reply, Defendant first argued that the policy is overboard and invalid because it authorizes deputies to open all closed containers. Second, Defendant argued that policy is invalid because it authorizes deputies to conduct investigatory searches and to seize property as evidence of a crime without a warrant or an exception to the warrant requirement. The Court held the state failed to carry its burden of establishing that the warrantless search of defendant's person and seizure of his property was a valid inventory under Article I, section 9, because the state relied on an invalid inventory policy. In addition, the court concluded that they cannot address the state's other arguments based on other policies because those arguments were not raised at trial. Reversed and remanded.