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STATE v. TAYLOR
279 P.3d 254 (2012)
250 Or. App. 90
STATE of Oregon, Plaintiff-Respondent,
v.
David Brian TAYLOR, Defendant-Appellant.
CFH090187; A144468.
Court of Appeals of Oregon.
Argued and Submitted February 28, 2012.
Decided May 16, 2012.
Eric Johansen, Senior Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and EDMONDS, Senior Judge.
SERCOMBE, J. Defendant was convicted of possession of methamphetamine, ORS 475.894. He appeals, assigning error to the trial court's denial of his motion to suppress evidence found in a closed container-a cigarette box-during a warrantless search of his person. The trial court concluded that, although the search was unlawful, the evidence was nevertheless
admissible because the police inevitably would have discovered it pursuant to a valid jail inventory policy. Defendant argues that the inventory policy at issue would not have permitted the search of his cigarette box and that, in any event, the policy is constitutionally infirm. We conclude that the inventory policy violates Article I, section 9, of the Oregon Constitution.1 Accordingly, we reverse and remand. The relevant facts are undisputed. Defendant was arrested on suspicion of domestic assault. The arresting officer handcuffed defendant and searched his pockets for weapons. The officer found a cigarette box, which he seized and handed to a second officer. That officer opened the cigarette box and discovered what he suspected, and defendant admitted, was methamphetamine. Defendant was charged with possession of a controlled substance. Before trial, he moved to suppress the evidence found during the warrantless search of the cigarette box, arguing that it had been obtained in violation of Article I, section 9. The state argued that the search was justified as a valid "search incident to arrest." Alternatively, the state argued that the evidence inevitably would have been discovered during an inventory of defendant's property at the Umatilla County Jail. The applicable inventory policy provided, in relevant part: "POLICY: It shall be the policy of the Umatilla County Jail (UCJ) to ensure that all arrestee/inmate personal property is received, inventoried, stored, and released in a safe, secure and systematic manner, in accordance with the law. This policy ensures the safety of the facility through effective weapons and contraband control[] and establishes authority to conduct inventories of the personal possessions of arrestees during pre-booking, the booking process, or lodging at UCJ. The purpose of this policy is to inventory the property of the arrestee to protect private property, reduce or prevent false claims for lost or stolen property, and protect people and property from any hazardous condition or instrument which may be with an arrestee's personal property. "DEFINITIONS: "Contraband: Any item which presents a safety and/or security concern to the UCJ, staff, or arrestee shall be considered contraband.
1. Article I, section 9, provides:
"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."
2. The state does not contend on appeal that the search was justified as a valid "search incident to arrest."
3. Indeed, such an exception might swallow the limitations on inventories.
4. We recognize that security may be a valid justification for administrative searches in contexts where property would otherwise remain accessible to persons entering the secure portion of a facility. See, e.g., State v. Coleman, 196 Or.App. 125, 127, 100 P.3d 1085 (2004), rev. den. 338 Or. 16, 107 P.3d 26 (2005) (limited search for safety of detainees in "controlled waiting room" of police station); Smith v. Washington County, 180 Or.App. 505, 43 P.3d 1171, rev. den., 334 Or. 491, 52 P.3d 1056 (2002) (courthouse security screening); see also U.S. v. McCarty, 648 F.3d 820 (9th Cir.2011) (airport screening searches are constitutionally reasonable administrative searches under the Fourth Amendment to the United States Constitution where properly limited in extent and intensity). Of course, those searches must still be reasonable in relation to their purpose. Weber v. Oakridge School District 76, 184 Or.App. 415, 437, 56 P.3d 504 (2002), rev. den., 335 Or. 422, 69 P.3d 1233 (2003). In the jail inventory context, it is not apparent how the purpose of safety would be served by allowing officers to open closed, opaque containers to look for contraband where those containers can be seized, inventoried by their outward appearance, and placed securely in storage. See State v. Lippert, 317 Or. 397, 404, 856 P.2d 634 (1993) (in the context of civil detoxification holds, "this court has held that Article I, section 9, * * * is violated when officers conduct a search of closed, opaque containers * * * that do not announce their contents and that are not going to be placed * * * into the secured portion of the detoxification facility").
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