State v. Lovaina-Burmudez
Case #: A145464
Haselton, C.J. for the Court; Armstrong, P.J.; and Duncan, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A145464.pdf
Criminal Procedure: The retention and processing of clothing as evidence exceeds the scope of a lawful inventory and therefore is an unlawful search and seizure. For the State to use such evidence, it must be demonstrated that the evidence would inevitably be lawfully discovered.
Defendant appealed convictions arising out of multiple robberies. Defendant was a suspect in a robbery that took place August 18. On August 24, after another robbery, an officer recognized Defendant and attempted to arrest him, during the course of which Defendant was shot and taken to the hospital. Defendant's clothes were seized, searched, and photographed. A warrant for the clothing was issued six months later. At trial, Defendant moved to suppress admission of his clothing, cash in the clothing, and pictures of the clothing, arguing that the items were not properly seized incident to arrest because police had probable cause to arrest him only for the August 18 robbery, not the August 24 robbery. The trial court denied suppression concluding that all the items were seized incident to his arrest and that the search was conducted in accordance with a proper inventory accounting. On appeal, the Court of Appeals held that 1) the trial court erred in concluding that the items were seized pursuant to the August 18 robbery; 2) the search of the clothing was in accordance with a proper inventory policy; but 3) the retention and photographing of the clothing was outside the scope of an inventory and was therefore unlawful; and 4) the State failed to demonstrate that the clothing would have inevitably have been subject to a lawful seizure pursuant to the subsequent warrant. On Counts 5, 6, and 8, convictions reversed and remanded; remanded for resentencing; otherwise affirmed.