author: AOYAGI, J. Egan, C. J., dissenting. EGAN, C. J., dissenting.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Tamara Louise FULMER, Defendant-Appellant.
    A162730
    Court of Appeals of Oregon.
    Argued and submitted December 5, 2017. February 6, 2019
    Brett J. Allin, 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.
    David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   AOYAGI, J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, challenging the trial court's denial of her motion to suppress evidence obtained during a vehicle inventory. In the course of a lawful traffic stop, a police officer decided to impound defendant's car. When the officer asked defendant to step out of the car for the inventory, she did so, leaving her purse on the passenger seat. In accordance with the police department's inventory policy, an officer inventoried defendant's purse, including the contents of a wallet in the purse. The officer found methamphetamine and needles in the wallet. Defendant was arrested and charged. Before trial, she moved to suppress the evidence found in her purse along with any derivative evidence. The trial court denied the motion, and defendant was subsequently convicted. On appeal, we conclude that the trial court did not err in denying defendant's motion to suppress and, accordingly, affirm.

I. STANDARD OF REVIEW

We review the trial court's legal conclusions for legal error. State v. Bean , 150 Or. App. 223, 225, 946 P.2d 292 (1997), rev. den. , 327 Or. 448, 966 P.2d 222 (1998). As to the facts, we are bound by the trial court's express and implicit findings so long as they are supported by the record. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We state the facts in accordance with that standard.

II. FACTS

While on patrol one night, Officer Delepine of the Hillsboro Police Department saw defendant driving with an expired registration tag on her license plate. Delepine activated his overhead lights to initiate a traffic stop, and defendant pulled to the side of the road. Delepine approached defendant and advised her of the reason for the stop. When Delepine asked her for her driver's license and proof of insurance, defendant admitted that her registration was expired, that her driver's license was suspended, and that she did not have insurance. Delepine used his in-vehicle computer to confirm that information. He then began writing a citation.

Because he intended to impound the car, he also called for a second officer to assist.

Delepine was still writing the citation when the second officer, Weed, arrived. After telling Weed that he intended to impound defendant's car, Delepine approached defendant, who was still in the car. Delepine told her in a conversational tone that he "was going to be impounding her vehicle for the reasons of her license being suspended, no insurance, and it being a hazard." (Delepine considered the car to be a hazard because it was blocking the bike lane.) Weed stood by the passenger door as Delepine spoke to defendant on the driver's side. Delepine asked defendant "to step out of the vehicle so that Officer Weed [could] conduct an inventory." He "asked her" and "didn't order her," although defendant did not have the option to stay in the car. Delepine did not say anything to defendant about taking items out of the car-he did not tell her to take items with her, nor did he tell her to leave items in the car. Delepine explained, "Generally, I just have them get out of the car. Most of the time after I tell someone that I'm towing their car, they grab * * * those things that they want."

Defendant got out of the car. She brought her cell phone and a pack of cigarettes with her. Defendant left her purse on the passenger seat, and she did not ask to remove the purse or any other property from the car. Once out of the car, defendant stood with Delepine near the hood of his vehicle. Delepine requested defendant's current address for the citation. He asked defendant whether there were any valuable or dangerous items in the car, as relevant to the inventory, and she said no. Then he inquired about defendant getting a ride to leave, and she said that she would call someone.

Meanwhile, Weed had begun the inventory of defendant's car. He conducted the inventory in accordance with the Hillsboro Police Department's inventory policy. Upon taking "constructive custody of a vehicle prior to impoundment," the policy requires an officer to inventory, among other things, "all personal property and the contents of open containers found" in the vehicle's passenger compartment. The policy does not allow the opening of "closed containers," but it expressly excludes "item[s] designed for carrying money and/or small valuables"-such as closed wallets, coin purses, purses, and waist packs-from the definition of "closed containers." In other words, the policy provides for items like purses and wallets to be inventoried, including their contents.

In this case, the first item that Weed examined during the inventory was defendant's purse, which was on the passenger seat. "[I]t was the first thing that [he] looked in because it was right there." Inside a wallet in the purse, Weed found needles and a small bag of methamphetamine. Weed directed Delepine to arrest defendant, and Delepine did so. Defendant then admitted to Delepine that she had "dirty rigs" (which Weed understood to mean used needles) and that she was a methamphetamine user.

The state charged defendant with one count of unlawful possession of methamphetamine. Defendant moved to suppress the evidence from her purse and any derivative evidence, arguing, among other things, that the officers had unlawfully seized her purse because they "did not give [her] an opportunity to take her belongings" from her car before the inventory began. After a hearing at which Delepine, Weed, and defendant testified, the trial court denied defendant's motion. The court concluded that the stop had been lawful, that the decision to impound the car had been lawful, and that the inventory had been lawfully conducted in accordance with the department's policy. As for defendant's purse, the court found that defendant had never asked to remove it and that, although the officers could have said something as a "courtesy," they were not legally required to ask defendant whether she wanted to take items with her. After the denial of her motion to suppress, defendant was tried and convicted.

III. ANALYSIS

In her sole assignment of error on appeal, defendant challenges the denial of her motion to suppress. Defendant does not dispute that the traffic stop was lawful, that the officer's decision to impound her vehicle was lawful, that the Hillsboro Police Department's inventory policy is lawful, or that the officers complied with the inventory policy. Nonetheless, she argues that the search of her purse violated Article I, section 9, of the Oregon Constitution. Defendant posits two alternative legal theories. First, she argues that, under the totality of circumstances, a reasonable person in her position would have believed that she could not remove items from the car. Second, she argues that the officers had an affirmative duty to ask her if she wanted to remove items from the car before impoundment and to allow her a reasonable opportunity to do so. In response, the state rejects defendant's view of Article I, section 9, and argues that the officers had no obligation to ask defendant whether she wanted to remove items from the car.

We begin our analysis with a brief overview of the law relating to police inventories of impounded vehicles. We then address each of defendant's arguments in turn, beginning with the second argument because of how it relates to the first.

A. Overview of Law on Police Inventories

" Article I, section 9, of the Oregon Constitution establishes a right of the people 'to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.' " State v. Rodgers/Kirkeby , 347 Or. 610, 621, 227 P.3d 695 (2010) (quoting Or. Const., Art I, § 9 ). Warrantless seizures are per se unreasonable "unless they fall within one of the few specifically established and well-delineated exceptions to the warrant requirement." State v. Lambert , 263 Or. App. 683, 691-92, 328 P.3d 824, adh'd to as modified on recons. , 265 Or. App. 742, 338 P.3d 160 (2014) (internal quotation marks omitted). The same is true of warrantless searches. State v. Pilgrim , 276 Or. App. 747, 750, 369 P.3d 434 (2016).

The administrative seizure exception to the warrant requirement "recognizes that police have occasions to take custody of personal property," including vehicles, "for reasons that are unrelated to any criminal investigation." Lambert , 263 Or. App. at 692, 328 P.3d 824. An administrative seizure must be "specifically authorized" by law to come within the warrant exception. State v. Anderson , 101 Or. App. 594, 597, 792 P.2d 451 (1990). However, police discretion in deciding whether to administratively seize property does not preclude application of the exception. Lambert , 263 Or. App. at 693, 328 P.3d 824. As relevant here, ORS 809.720 authorizes impoundment of a person's vehicle if an officer has probable cause to believe that the person is driving with suspended driving privileges in violation of ORS 811.175 or ORS 811.182 or is driving uninsured in violation of ORS 806.010. See State v. Balabon , 292 Or. App. 870, 879, 426 P.3d 133 (2018) (applying administrative seizure exception in context of ORS 809.720 ).

An inventory search is a concept "related, but distinct" from an administrative seizure. Lambert , 263 Or. App. at 692, 328 P.3d 824. "Inventory search" is "a term that has emerged in our case law to describe a police department practice of examining and cataloguing property that is taken into administrative custody." Id . The Oregon Supreme Court has recognized "[t]hree principal purposes [that] often are put forward to justify a governmental policy of inventorying impounded personal property." State v. Atkinson , 298 Or. 1, 7-8, 688 P.2d 832 (1984). Those purposes are to help protect the owner's property while in police custody, to reduce the risk of and to tend to prevent the assertion of false claims against police for loss of property, and, in some circumstances, to reduce physical danger to police officers and others. Id .

In Atkinson , the Supreme Court stated that responsible policy makers may rely on "protective reasons" of the foregoing nature to adopt "prescribed procedures for inventorying the contents of an impounded vehicle." Id . at 8, 688 P.2d 832. According to Atkinson , an inventory policy adopted for such reasons is "not inherently 'unreasonable' within the meaning of Article I, section 9"-even if less intrusive means are available that could achieve the same purposes as an inventory-so long as three conditions are met. Id . at 7-10, 688 P.2d 832. Those conditions are that (1) the vehicle is lawfully in police custody, (2) the inventory policy is properly authorized and " 'designed and systematically administered so that the inventory involves no exercise of discretion' " by police, and (3) the officer directing or taking the inventory does " 'not deviate from the established policy or procedures.' " State v. Stinstrom , 261 Or. App. 186, 190, 322 P.3d 1076 (2014) (quoting Atkinson , 298 Or. at 8-10, 688 P.2d 832 ).

It is important to keep in mind that an inventory search is noninvestigatory in nature. Thus, an officer may not order someone to leave items in a vehicle that is being impounded in order to inventory them, nor may an officer "inventory" items that an occupant has removed from the vehicle.

State v. Dimmick , 248 Or. App. 167, 170, 174-75, 273 P.3d 212 (2012) (an officer unlawfully seized a backpack where the defendant tried to take the backpack with him as he exited a car subject to impoundment but the officer told him that he had to leave it); State v. Sparks , 228 Or. App. 163, 166-67, 206 P.3d 1197 (2009) (an officer unlawfully searched a purse where the defendant took her purse with her when she exited a vehicle subject to impoundment and refused to consent to a search of the purse, but the officer searched the purse anyway on the theory that he could inventory anything that had been in the vehicle when he stopped it); see also State v. Olendorff , 267 Or. App. 476, 488, 341 P.3d 779 (2014) (where the defendant was carrying a purse when she was arrested and the officer improperly refused her request to give the purse to a friend at the scene, drugs found in the purse during a subsequent inventory should have been suppressed).

With that basic framework in mind, we turn to defendant's two arguments.

B. Defendant's "Affirmative Duty" Argument

It is undisputed that, if defendant had taken her purse with her or asked to take it with her when she got out of the car, the officers could not have ordered her to leave it in the car or searched it as part of the inventory.

See Dimmick , 248 Or. App. at 174-75, 273 P.3d 212 ; Sparks , 228 Or. App. at 166-67, 206 P.3d 1197. However, defendant argues that Article I, section 9, goes further. As a matter of first impression, defendant urges us to adopt a rule that, in order to rely on the administrative seizure exception to the warrant requirement, when the owner of a vehicle is present and not under arrest (and officer-safety concerns are not at issue), "police must ask the owner whether she would like to remove any items before the car is inventoried and impounded and allow her a reasonable opportunity to do so."

Defendant's proposed rule is not without appeal. We have previously recognized that the purposes of an inventory are "served by encouraging occupants to remove small containers" from vehicles prior to impoundment. Sparks , 228 Or. App. at 167, 206 P.3d 1197 (emphasis in original). By definition, inventories of administratively seized vehicles are noninvestigatory in nature, so, absent officer safety concerns, there is no legally valid reason not to want people to know that they are free to remove items from a vehicle before it is impounded. Indeed, protection of personal property and avoidance of false claims is better achieved by people taking items out of a vehicle than leaving them behind due to uncertainty about their rights. See id . ; State v. Bernabo , 224 Or. App. 379, 386, 197 P.3d 610 (2008) (a policy that requires officers to ask people to remove valuables before impoundment "recognizes that the best possible protection against theft, misplacement, and fraudulent claims against the government is simply to remove all valuables from the car").

Requiring officers to advise occupants that they may remove personal items before a vehicle is impounded also would help alleviate concerns among some members of the public that inventories are little more than warrantless investigatory searches in disguise. See, e.g. , Atkinson , 298 Or. at 12-20, 688 P.2d 832 (Roberts, J., dissenting) (discussing concerns about inventories, including one commentator's statement that "it is at least doubtful that inventories serve any purpose other than as a means of a warrantless search for evidence" (citation omitted)). In that regard, we note that some Oregon jurisdictions and law enforcement agencies have adopted their own requirements that officers ask drivers to remove valuables before a vehicle is inventoried. See State v. Williams , 227 Or. App. 453, 456, 206 P.3d 269 (2009) (City of Prineville ordinance "requires that the owner or operator of the impounded vehicle be asked to remove all valuables if possible"); Bernabo , 224 Or. App. at 384, 197 P.3d 610 (Deschutes County inventory policy provides that "[t]he owner or operator of the vehicle shall be asked to remove, if possible, all valuables from the vehicle prior to impoundment").

The question before us, however, is not whether it is a good policy for law enforcement officers to ask vehicle occupants whether they want to remove personal items from a vehicle before it is impounded. Indeed, the state essentially concedes that it is. Rather, the question is whether Article I, section 9, requires officers to do so. Moreover, because of the way the issue is framed by defendant, the question is whether Article I, section 9, requires officers to do so in every case in which the vehicle owner is present and not under arrest when a vehicle is administratively seized.

Several other states have grappled with similar issues in interpreting their state constitutions. See Atkinson , 298 Or. at 19-20, 688 P.2d 832 (Roberts, J., dissenting) (citing cases). For example, the New Jersey Supreme Court has interpreted the New Jersey Constitution as requiring that a driver either consent to an inventory or be given a reasonable opportunity to make other arrangements for custody of a vehicle subject to impoundment. State v. Mangold , 82 N.J. 575, 587, 414 A.2d 1312, 1318 (1980). More recently, the Iowa Supreme Court concluded that the Iowa Constitution requires, among other things, that officers explore alternatives to impoundment and, when impoundment is necessary, ask the driver whether there is any property in the vehicle that the driver wishes to retain and, if so, allow the driver to retrieve it. State v. Ingram , 914 N.W.2d 794, 820 (Iowa 2018).

Those out-of-state decisions raise important and interesting issues about whether the typical justifications for inventory policies are actually compelling enough to render the automatic warrantless search of every administratively seized vehicle reasonable, or, more precisely, not "unreasonable" for purposes of Article I, section 9. No matter how important and interesting those issues are, however, we are an intermediate appellate court, and we are not writing on a blank slate. Atkinson identifies only three conditions that must be met for an inventory search to be deemed "not inherently 'unreasonable' within the meaning of Article I, section 9." Atkinson , 298 Or. at 8, 688 P.2d 832. And those conditions were met in this case. Defendant does not dispute that her car was lawfully in police custody, that the inventory policy at issue was properly authorized and did not allow discretion, and that the officers complied with the policy. See Stinstrom , 261 Or. App. at 190, 322 P.3d 1076 (summarizing the Atkinson conditions). To hold that the inventory of defendant's car was nonetheless "unreasonable," because the officers did not ask her whether she wanted to remove any personal items before the inventory began, thus seems inconsistent with Atkinson . Again, defendant is essentially asking us to adopt a per se rule that any inventory of an administratively seized vehicle is constitutionally "unreasonable" unless the present, nonarrested owner is affirmatively asked about removing items from the vehicle.

Of course, if an inventory policy contained an unconstitutional provision-such as providing for the search of closed opaque containers-we would recognize that provision as unconstitutional, notwithstanding that the vehicle was lawfully in police custody, that the inventory policy was duly authorized, and that an officer had followed the policy. In that sense, the dissent is perhaps correct to say that Atkinson does not truly control the question before us. See 296 Or. App. at 78-79, 437 P.3d at 267-68 (Egan, J., dissenting). It does not follow, however, that we should recognize a previously unrecognized constitutional right-to be affirmatively advised of the right to remove personal items from a vehicle prior to its impoundment-without a careful and compelling articulation by defendant of how doing so is consistent with existing precedent, including Atkinson , and actually required by Article I, section 9. Articulating why such affirmative advice is constitutionally required is critical, both because that is the legal question before us and because the Oregon Supreme Court has expressly cautioned against making policy decisions in the guise of constitutional requirements in the area of inventory searches. See Atkinson , 298 Or. at 6, 688 P.2d 832.

In this case, although defendant raises interesting issues, she has ultimately failed to persuade us that an inventory search of an administratively seized vehicle is inherently unreasonable-and thus a violation of Article I, section 9-if a law enforcement officer has not expressly asked the vehicle's owner, who is present and not under arrest, whether she would like to remove any personal items before the vehicle is impounded.

C. Defendant's "Reasonable Person" Argument

We turn then to defendant's other argument-that her purse was unlawfully seized because, under the totality of the circumstances, a reasonable person in defendant's position would believe "that she was to exit the car immediately and that she was not free to reach around the car to retrieve her personal items." In other words, defendant argues that, by getting her out of the car in the manner that they did, the officers interfered with her possessory interests in the items in the car so as to constitute an unlawful seizure of those items before the administrative seizure took place.

"Property is 'seized,' for purposes of Article I, section 9, when there is a significant interference, even a temporary one, with a person's possessory or ownership interests in the property." State v. Juarez-Godinez , 326 Or. 1, 6, 942 P.2d 772 (1997). The same precepts apply to seizure of an object as to seizure of a person. Id ."Just as a person may be seized by a show of authority, so can a piece of property." Id . at 7, 942 P.2d 772 (emphasis in original). "Just as police conduct with respect to a person is tested according to what a defendant did believe and what an objectively reasonable person would believe under the circumstances, so is police conduct with respect to property." Id . (emphases in original). "Finally, just as any determination as to whether a person has been seized necessarily involves a fact-specific inquiry, so does the determination as to whether an object has been seized." Id . (emphases in original).

The moment when an officer informs a person who is not under arrest that a vehicle is going to be impounded and asks, directs, or otherwise causes the person to exit the vehicle has not been the subject of much case law. Generally speaking, we agree with defendant that, in that moment, an officer could engage in conduct that would unlawfully interfere with the person's right to remove personal belongings from the vehicle, so as to constitute a seizure of those items distinct from the administrative seizure of the vehicle. See id. ; see also State v. Cook , 332 Or. 601, 609, 34 P.3d 156 (2001) (defendant did not relinquish constitutionally protected privacy and possessory interest in personal property when he left items on the ground after police instructed him to "step out" of area near dumpster). We disagree, however, that such interference occurred here.

Whether property has been seized by a law enforcement officer is a fact-specific inquiry. See Juarez-Godinez , 326 Or. at 7, 942 P.2d 772. Here, based on the trial court's express and implied factual findings, Delepine simply asked defendant in a conversational tone to step out of the car so that Weed could inventory it, and she complied. The officers did nothing to prevent defendant from taking items with her, and, in fact, she took her cell phone and a pack of cigarettes. Moreover, Delepine indicated that he had followed his general practice and that, "[m]ost of the time," people take the items that they want with them once he says that he is towing the car.

Defendant points to her being "surrounded" by Delepine and Weed as evidence of a show of authority. That characterization, however, takes the officers' positions out of context. Delepine told defendant that Weed was there to conduct the inventory, which explained why Weed was standing there, and Weed did not say or do anything. Other than the physical location of the officers, the only "circumstances" that defendant identifies as relevant to what a reasonable person would believe about her ability to remove items from the car are that she was asked to step out of the car immediately after being told that it was going to be impounded, was not informed what an inventory would entail, and was not advised that she could remove items from the car. Thus, on these facts, defendant is essentially asking us to hold that, unless an officer affirmatively explains the inventory process and advises a person of the right to remove personal items from a vehicle in advance of impoundment, an objectively reasonable person would believe that she is not allowed to remove personal items, such that those items have been seized for purposes of Article I, section 9.

If we had concluded that Article I, section 9, requires law enforcement officers to give an advice-of-rights regarding inventory searches, the lack of such an advisement might be relevant in assessing what an objectively reasonably person would believe. We did not so conclude, however, so there would have to be some other basis to say that an objectively reasonable person in defendant's circumstances would have believed that she could not remove personal items from the vehicle.

With respect to seizures of persons, the Supreme Court has made clear that an officer's inherent authority is not enough to effectuate a seizure but, rather, that physical restraint or a show of authority that significantly restricts a person's freedom is necessary. See State v. Anderson , 354 Or. 440, 450, 313 P.3d 1113 (2013) (a person approached by a police officer "may be discomforted by an officer's inherent authority as such and, for reasons personal to the individual, feel inclined or obliged to cooperate with the officer's request," but, for a seizure of the person to occur, "the officer must add to those inherent pressures" by either physical restraint or a "show of authority" that significantly restricts the person's freedom to terminate the encounter). The same precepts apply to seizure of an object as to seizure of a person. Juarez-Godinez , 326 Or. at 7, 942 P.2d 772. Accordingly, we conclude that the officers' conduct in this case-asking defendant in a conversational tone to step out of the vehicle because it was being impounded-was insufficient to effectuate a seizure of the items in the car.

In so holding, we disagree with the dissent's assertion that we are saying that it is "per se unreasonable for an individual, who has been stopped by police and ordered out of a vehicle, to believe that they cannot remove items from their vehicle before exiting." 296 Or. App. at 75, 437 P.3d at 266 (Egan, J., dissenting). The question is one of objectively reasonable belief, not assumption, and it is a fact-specific inquiry. We are holding that the mere act of an officer asking a person who is not under arrest to step out of a car because it is being impounded, without more, is not enough to cause an objectively reasonable person to believe that they cannot remove any personal items from the car. Beyond that, it will depend on the circumstances of the particular case what additional facts would suffice to establish an unconstitutional seizure of items in a vehicle distinct from the administrative seizure of the vehicle.

IV. CONCLUSION

Accordingly, we conclude that the officers did not violate defendant's rights under Article I, section 9, of the Oregon Constitution, and that the trial court did not err in denying defendant's motion to suppress the evidence found in her purse.

Affirmed.

Egan, C. J., dissenting.

EGAN, C. J., dissenting.

The majority holds that, because of the Supreme Court's opinion in Atkinson , an officer does not violate Article I, section 9, of the Oregon Constitution when, in the course of impounding a vehicle, the officer fails to ask the driver, who is still present at the scene, whether she would like to remove items from the vehicle. 296 Or. App. at 71, 437 P.3d at 263. I would conclude that officers are constitutionally required to make such an inquiry before beginning an inventory. The majority's holding makes it per se unreasonable for an individual, who has been stopped by police and ordered out of a vehicle, to believe that they cannot remove items from their vehicle before exiting. In so holding, the majority diminishes the state's threshold burden to prove that police, in conducting a warrantless search, do not violate citizens' rights. Therefore, I dissent. My disagreement with the majority's reading of Atkinson frames my dissent. First, the majority briefly and conclusorily notes that the Oregon Supreme Court has recognized three principal purposes that are often put forward to justify inventories of the contents of impounded vehicles. 296 Or. App. at 68, 437 P.3d at 261-62. Second, the majority appears to hold that, so long as three "conditions" are met, police conduct is inherently reasonable for purposes of Article I, section 9. As explained below, primarily because of these two points, I find the majority's reading flawed for lack of nuance.

To begin, the majority correctly states that there are three principal justifications often put forth to support governmental policies of inventorying impounded personal property. However, in quickly assuming that these justifications remain valid, the majority ignores the fact that each has been questioned. Indeed, Justice Roberts' dissent in Atkinson itself noted that "[i]nventory searches of automobiles for non[ ]investigatory reasons are not new" and that "the justifications upon which [they are] premised have been criticized often." Atkinson , 298 Or. at 17, 688 P.2d 832 (Roberts, J., dissenting). A further examination of each justification reveals that the underpinnings of the inventory exception to the warrant requirement are not-and should not be-settled reasons to be glossed over when analyzing the contours of the exception.

The first justification is that inventories supposedly "protect the owner's property while in police custody." 296 Or. App. at 67, 437 P.3d at 261. However, as the dissent noted in Atkinson , not consulting an individual regarding whether they would like their property kept safe by police "makes a mockery of the claim that the search is in the interest of protecting his personal property" as it "would be small comfort to go to the penitentiary, reassured that you are there only because the police were adamant in protecting you from petty theft regardless of whether you wished such protection." Atkinson , 298 Or. at 17, 688 P.2d 832 (Roberts, J., dissenting) (quoting Moylan, The Inventory Search of an Automobile: A Willing Suspension of Disbelief , 5 U. Balt. L. Rev. 203, 219-20 (1976)). Other critics have noted that there "are other equally or more effective methods in securing property other than a warrantless inventory search"-such as sealing and storing containers inside the vehicle. State v. Ingram , 914 N.W.2d 794, 818 (Iowa 2018).

The second justification is that inventories "reduce the risk of and tend to prevent the assertion of false claims against police." 296 Or. App. at 67, 437 P.3d at 261. However, there is a lack of evidence-indeed, the state has presented no evidence-showing that these claims are a real threat. See Ingram , 914 N.W.2d at 817 ("The mere theoretical possibility of a rare and in almost all cases unsuccessful claim of theft cannot overcome the substantial expectation of privacy an owner or driver has in the contents of an automobile.") Moreover, conducting an inventory does not necessarily prevent such claims. See South Dakota v. Opperman , 428 U.S. 364, 378-89, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (Powell, J., concurring) (noting that claimants could allege that the missing items were stolen prior to the inventory).

The final justification is that, in some circumstances, inventories "reduce physical danger to police officers and others." 296 Or. App. at 67, 437 P.3d at 261. However, according to the Supreme Court in Atkinson , this is only a danger "in the occasional case" and "[r]eliance on this reason must have a concrete basis in specific circumstances; it may not simply be assumed as a basis of a general precautionary practice." 298 Or. at 7-8, 688 P.2d 832. Thus, this purpose certainly cannot be put forth to broadly justify all governmental inventories.

Moreover, I note that Atkinson was far from a full-fledged endorsement of these justifications.

In introducing the "principal purposes," the Supreme Court stated that they "often are put forward" to justify inventories. 298 Or. at 7, 688 P.2d 832. After explaining the justifications, the court concluded that "[i]f the responsible policy makers decide that protective reasons of this nature justify prescribed procedures for inventorying the contents of an impounded vehicle, such a policy is not inherently 'unreasonable[.]' " Id. at 8, 688 P.2d 832. The court did not hold that the purposes "often put forward" actually justify police inventories. Nor did the court hold that every policy enacted pursuant to these justifications would be constitutional. Rather, the court held that, should responsible policy makers conclude that such purposes justified prescribing a policy for inventories, policy makers are not constitutionally foreclosed from doing so. But to say that inventory policies "have been justified" for the above reasons severely oversimplifies the matter and neglects our role in assuring that "inventory searches" do not become licenses for police to conduct warrantless investigatory searches.

I also disagree with the majority's conclusion that, in describing three conditions for an inventory policy, the Supreme Court authorized any inventory so long as those three conditions are met. 296 Or. App. at 67-68, 437 P.3d at 261-62. In fact, the Supreme Court set forth a construct under which a search conducted pursuant to an inventory policy is not "inherently unreasonable." Those conditions are that (1) the vehicle is lawfully in police custody, (2) the inventory policy is properly authorized and "designed and systematically administered so that the inventory involves no exercise of discretion" by police, and (3) the officer directing or taking the inventory does "not deviate from the established policy or procedures." 296 Or. App. at 68, 437 P.3d at 261-62. The majority correctly quotes Atkinson , but does so slightly out of context, and it draws a broad conclusion that Atkinson does not.

First, the Supreme Court was not focused on the reasonableness of conducting an inventory. Rather, the court's discussion centered on how to determine if an inventory policy was reasonable under Article I, section 9. See Atkinson , 298 Or. at 8, 688 P.2d 832 (noting that "a policy is not inherently 'unreasonable' within the meaning of Article I, section 9, if it complies with [three conditions]" (emphasis added)). Second, and more importantly, the Supreme Court did not say that a policy's compliance with the three conditions meant that an inventory conducted pursuant to that policy would be inherently reasonable . Rather, the court outlined the three conditions as a threshold: an inventory search is not inherently unreasonable if those conditions are met. In this case, the majority concludes that the three conditions were met, and states that to inquire further into the reasonableness of the inventory would be inconsistent with Atkinson . 296 Or. App. at 70-71, 437 P.3d at 262-63. In so concluding, the majority turns the Atkinson threshold for reasonableness into an end post.

The majority further concludes that defendant's proposed rule-that officers ask a driver whose car is impounded whether they would like to remove personal items-"seems inconsistent" with Atkinson . 296 Or. App. at 71, 437 P.3d at 263. That conclusion is based only on the fact that the policy passed the three-pronged threshold test of Atkinson and the majority's conclusion that our analysis is foreclosed at that stage. As I read Atkinson , whether an inventory satisfies the threshold conditions is not the end of our inquiry; at that stage, we may only conclude that the inventory was not "inherently unreasonable." Thus, even if all three conditions are met, we still must determine whether the inventory was "reasonable" for purposes of Article I, section 9. For example, we must determine whether the inventory "was conducted pursuant to a properly authorized program designed and systematically administered to achieve the stated purpose ." Atkinson , 298 Or. at 11, 688 P.2d 832 (remanding because the answer to that question was unclear (emphasis added)). We must do so, of course, because this was a warrantless search of a citizen's property-the sort of search that is only lawful if the state proves that it "did not violate a protected interest of the defendant." State v. Tucker , 330 Or. 85, 88-89, 997 P.2d 182 (2000) (emphasis in original).

By rejecting defendant's rule and cutting our Article I, section 9, analysis of the search short, the majority assists the state in allowing a warrantless search based on a conveniently adjacent exception to the warrant requirement. It is well established that the state has the burden to prove that a warrantless search does not violate a defendant's right to be free from unreasonable searches because the search fell "within one of the few specifically established and carefully delineated exceptions to the warrant requirement." State v. Pilgrim , 276 Or. App. 747, 750, 369 P.3d 434 (2016) (emphasis added). The state often seeks to diminish the burden it bears by espousing noble motivations that justify turning those "few" "carefully delineated" exceptions into numerous, amorphous reasons to intrude on citizens' right to be secure against unreasonable searches and seizures. In this case, the state uses its inherent authority to cut directly at that right, thus eviscerating its own burden.

Finally, while I agree with the majority that it is not our role to make policy decisions, I believe the majority's view neglects our role "to assure that such policies and procedures as are adopted do not violate constitutional guarantees." Atkinson , 298 Or. at 6, 688 P.2d 832. A policy's compliance with the Atkinson conditions does not guarantee that police do not violate an individual's Article I, section 9, right. As this case demonstrates, police can follow a constitutional policy, yet still violate that right. Here, the police did so by using their mere presence and inherent authority to mislead defendant about her undisputed right to take personal items with her before police began the inventory. Because it is reasonable for an individual to feel inclined or obliged to cooperate with police, I would hold that police always must advise individuals of their right to take property with them prior to an inventory of their vehicle.

The majority ultimately reaches its holding by concluding that defendant's purse was not "seized" and that therefore, officers did not violate defendant's right to be free from warrantless search and seizure. In doing so, the majority applies our case law from when a person is "seized" and thus fails to take into account the complicated moment when a driver is asked to exit a vehicle that police intend to impound and inventory. The majority acknowledges that at the moment when defendant was instructed to exit her car, she had the right to take her purse with her. 296 Or. App. at 68-69, 437 P.3d at 261-62. The majority also purports to "agree with defendant that, in that moment, an officer could engage in conduct that would unlawfully interfere with the person's right to remove personal belongings from the vehicle[.]" 296 Or. App. at 73, 437 P.3d at 264-65. However, the majority concludes that because in this case, the police did nothing more than physically locate them-selves on each side of defendant's car, a "reasonable person" would not believe she was prohibited from reaching around her car to retrieve personal items. 296 Or. App. at 74, 437 P.3d at 265. The majority essentially posits that if defendant felt pressure to get out of the car without removing or asking to remove her purse, it was due to the officers' inherent authority, not any specific act of restraint or show of authority by the police. 296 Or. App. at 73-74, 437 P.3d at 264-65.

It is not disputed that police have such "inherent authority"; nor is it disputed that it is reasonable for an individual to feel inclined or obliged to cooperate with police requests. 296 Or. App. at 74, 437 P.3d at 265. The majority concludes that, because under State v. Anderson , 354 Or. 440, 450, 313 P.3d 1113 (2013), police must add to those inherent pressures in a police-citizen encounter in order to seize a person, the officer in this case would have also had to do something "more" in order to seize defendant's property. Anderson , 354 Or. at 450, 313 P.3d 1113 ; 296 Or. App. at 74-75, 437 P.3d at 265-66. However, this case is not about the seizure of a person, nor is it about a seizure during an ordinary police-citizen encounter. This case is about the seizure of property in a vehicle; property which defendant had a constitutional right to remove and take with her. In my view, this case is about whether we allow police to use their inherent authority to mislead individuals about that right.

The majority acknowledges that the rule defendant requests-that in the course of impounding a vehicle, the officer must ask a driver still present at the scene whether she would like to remove items from the vehicle-would serve the purposes of an inventory. 296 Or. App. at 69, 437 P.3d at 262. Several Oregon jurisdictions have realized as much and adopted this policy on their own. 296 Or. App. at 69-70, 437 P.3d at 262-63 (quoting City of Prineville ordinance and Deschutes County inventory policy). Indeed, the majority states that "there is no legally valid reason not to want people to know that they are free to remove items from a vehicle before it is impounded." 296 Or. App. at 69, 437 P.3d at 262. I agree with this statement, and I fail to see how Atkinson prohibits us from ensuring that police do not confuse or infringe that right. Therefore, I would hold that police are constitutionally required to inform individuals still present at the scene of their right to remove items from their vehicle before an inventory begins.

I respectfully dissent.

      That policy is consistent with our case law. See State v. Mundt/Fincher , 98 Or. App. 407, 412, 780 P.2d 234, rev. den. , 308 Or. 660, 784 P.2d 1102 (1989) ("Neither a wallet nor a purse is a 'closed, opaque container.' "); see also State v. Cleland , 289 Or. App. 379, 383-89, 410 P.3d 386 (2017) (James, J., concurring), rev. den. , 362 Or. 699, 416 P.3d 1091 (2018) (discussing history of that legal principle).

      Defendant asserts briefly that the inventory policy "says nothing about the seizure of portable containers within [a] vehicle." It is unclear what defendant means. The inventory policy allows for the inventory of closed containers generally (without regard to their portability) and allows for the inventory of the contents of certain containers, including purses and wallets, which are the only possible "portable containers" at issue in this case. In any event, any argument on this point is undeveloped, and we, like the state, do not understand defendant to be asserting any violation of the inventory policy.

      Similarly, the dissent focuses its energies on distinguishing Atkinson and on challenging the historical justifications for inventory policies, but it does not explain-or at least does not explain to our satisfaction-how it would fit into existing case law regarding Article I, section 9, and the Oregon Constitution generally, to require law enforcement officers to give advice-of-rights to owners in advance of administrative seizure of vehicles. See 296 Or. App. at 78-79, 437 P.3d at 267-68 (Egan, J., dissenting). The exact legal foundation and parameters for such a requirement would be critical if we were to recognize a new constitutional rule.

      We note that the traffic stop was ongoing when Delepine asked defendant to step out of the car, so defendant's person was still temporarily seized at that time. See Rodgers/Kirkeby , 347 Or. at 622, 227 P.3d 695. However, defendant does not rely on that fact as relevant to whether her purse was seized, and, in the circumstances here, it would not change our conclusion if she did.


source: Caselaw Access Project

author: ARMSTRONG, P. J.

license: Public Domain

text:
    In the MATTER OF the COMPENSATION OF Thomas J. HAMMOND, DCD, Claimant.
    Cheryl Hammond, Surviving Spouse, Petitioner, v. Liberty Northwest Insurance Corporation and Columbia Grain, Inc., Respondents.
    A163010
    Court of Appeals of Oregon.
    Argued and submitted December 11, 2017. February 27, 2019
    Donald M. Hooton argued the cause and filed the briefs for petitioner.
    Carrie Wipplinger argued the cause and filed the briefs for respondents.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

Claimant, the surviving spouse of the injured worker, seeks review of an order of the Workers' Compensation Board holding that she is not entitled to death benefits. We conclude that the claim is not compensable, and we therefore affirm.

The facts are largely undisputed. Claimant's spouse, Hammond, who was travelling for work, had been diagnosed with and was undergoing treatment for metastatic lung cancer that had spread to his bones, causing fractures. As Hammond walked through a hotel lobby, his left femur fractured due to weakness caused by the presence of the cancer in the bone. The medical evidence is undisputed that the metastatic lung cancer was the major contributing cause of the weakening. Hammond died seven days later.

Employer denied claimant's claim for a left leg injury and death benefits, explaining that "[i]nformation obtained during this investigation fails to establish the left leg injury resulting in death is compensably related to a work injury or work exposure." Before the administrative law judge (ALJ), claimant contended that, because Hammond was travelling for work, any injury sustained during the travel was compensably related to his employment. Employer took the position that Hammond's leg fracture was idiopathic and not materially related to his work. But, assuming that claimant was able to establish that the fracture was an "otherwise compensable condition" that had a material relationship to the employment, employer contended that the major contributing cause of Hammond's fracture was his preexisting cancer. The ALJ upheld the denial, reasoning, alternatively, that the cancer was a preexisting condition that was the major contributing cause of claimant's death, or that Hammond's fracture was idiopathic and did not arise out of his employment.

The board did not address employer's contention or the ALJ's conclusion that the fracture was idiopathic. Instead, the board analyzed the injury claim as a combined condition under ORS 656.005(7)(a)(B). The board reasoned as follows: Because Hammond was a travelling employee, his walking through the hotel lobby arose out of his employment. The board then cited medical evidence that the fracture was caused by claimant's bearing weight while walking that immediately combined with the cancerous tumor. The board found that the weight bearing was a material contributing cause of Hammond's fracture, which the board therefore characterized as an "otherwise compensable injury." But, finding that the cancer was a preexisting condition under ORS 656.005(24) and that the preexisting cancer was the major contributing cause of the fracture, the board determined that claimant had failed to meet her burden under ORS 656.005(7)(a)(B) to show that the otherwise compensable injury was the major contributing cause of the fracture. In light of that conclusion, the board upheld the denial of the injury claim and claim for death benefits.

On judicial review, claimant raises several challenges to the board's analysis. Claimant contends that the cancerous femur tumor was not legally cognizable as a preexisting condition because, although the metastatic cancer and its spread to the bones had been diagnosed previously, there had been no diagnosis of a tumor in the femur. We reject the contention. Even though the femur tumor had not been diagnosed, there is no dispute that it was a part of the cancer. We conclude that the board did not err in determining that Hammond's cancer, and its spread to his bones, was a preexisting condition, as defined in ORS 656.005(24).

Claimant contends that the analysis set forth in ORS 656.005(7)(a)(B) for combined condition claims does not apply in the context of a claim seeking benefits for death. Claimant notes that ORS 656.005(7)(a)(B) refers only to a combined condition causing or prolonging "disability or a need for treatment," and does not mention death. Thus, in claimant's view, the legislature intended to exclude claims for death benefits from the combined condition analysis, and only the material contributing cause standard of proof applies in this case.

The exception that claimant attempts to carve for death benefit claims is not supported by the statute's text. ORS 656.204 describes the benefits due "[i]f death results from a compensable injury." ORS 656.005(7), in turn, defines a "compensable injury" as an accidental injury arising out of and in the course of the employment requiring medical services and resulting in disability or death. ORS 656.005(7)(a)(B) describes a limitation to the definition of a compensable injury when an "otherwise compensable injury" combines with a preexisting condition "to cause or prolong disability or a need for treatment." In that context, benefits resulting from a combined condition are available only if the otherwise compensable injury is the major contributing cause of the disability or need for treatment of the combined condition; there is no exclusion when the injury also results in the worker's death. Here, the board found that the fractured femur was a combined condition, and there is no dispute that it caused or prolonged Hammond's disability and the need for treatment. We reject claimant's contention that the combined condition analysis does not apply when a claimed injury also contributes to the worker's death.

Finally, in a supplemental brief, claimant contends that the Supreme Court's opinion in Brown v. SAIF , 361 Or. 241, 391 P.3d 773 (2017), decided after the board's order and after the initial briefing in this case, necessitates a different analysis from that applied by the board here and therefore requires a remand for reconsideration. Brown involved an accepted injury claim for a lumbar strain that was found to have combined with a preexisting degenerative back condition. The question in Brown was whether, for purposes of determining the continued compensability of the combined condition, the "otherwise compensable injury" was limited to the accepted lumbar strain or also included other conditions not accepted that might have resulted from the same work-related accident that caused the lumbar strain.

Id . The court held that, in the context of a claim involving a previously accepted injury, the term "injury," as used in the phrase "otherwise compensable injury," ORS 656.005 (7)(a)(B), refers to the injury or condition that has been accepted. The court held that an employer is authorized under ORS 656.262(7)(b) and ORS 656.268(1)(b) to deny further benefits and close a combined condition claim when the medical condition that the employer previously accepted ceases to be the major contributing cause of that combined condition. Id . at 282, 391 P.3d 773.

The question here is different from the one in Brown . Here, unlike in Brown , there is no previously accepted injury. The dispute involves the statute's applicability to an initial claim for an injury that itself constitutes the combined condition. Claimant would have us focus on whether the disability and treatment Hammond experienced before his death was caused by the fracture, which the board, in its effort to describe the injury in the terms of ORS 656.005 (7)(a)(B), characterized as the "otherwise compensable injury." But we reject the board's characterization of the fracture as the "otherwise compensable injury"; the fracture was the combined condition itself.

The board nonetheless reached the correct conclusion that the fracture was not compensable as an initial claim. See Conner v. B & S Logging , 153 Or. App. 354, 358 n 2, 957 P.2d 159 (1998) (court may affirm a correct Workers' Compensation Board order that springs from an incorrect analysis if there is substantial evidence to support the board's findings leading to that result). We addressed the compensability of a combined condition as an initial claim in Tektronix, Inc. v. Nazari , 117 Or. App. 409, 844 P.2d 258 (1992), adh'd to has modified on recons. , 120 Or. App. 590, 594, 853 P.2d 315, rev. den. , 318 Or. 27, 862 P.2d 1306 (1993). At that time, 656.005 (7)(a)(B) (1993) provided:

"If a compensable injury combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the resultant condition is compensable only to the extent that the compensable injury is and remains the major contributing cause of the disability or need for treatment."

In explaining our interpretation of the statute, we noted the textual challenge of applying it in the context of an initial claim:

"Subparagraph (B) of ORS 656.005(7)(a) appears to assume the existence of a compensable injury under [the material contributing cause] standard of medical causation. When the claimant has an injury that has been determined to be compensable under that standard, the words of subparagraph (B) are easily understood: A condition resulting from a combination of the injury and a preexisting condition is compensable only if the compensable injury is the major contributing cause of the disability or need for treatment of the 'resultant condition.' The words of the statute are not readily applicable to the present case, which requires a determination of whether claimant's injury is compensable in the first instance."

Id. at 592-93, 853 P.2d 315. Although we stated that the words of the statute were not "readily applicable" to an initial claim, we were persuaded by the legislative history of ORS 656.005(7)(a) that

"the objective of the legislature was to adopt the major contributing cause standard of proof with respect to any claim for benefits or disability related to a preexisting, noncompensable condition.
"We conclude that the statute is applicable in the context of an initial claim if the injury combines with a preexisting, noncompensable condition to cause or prolong disability or a need for treatment. If, in an initial claim, there is disability or a need for treatment as a result of the injury alone, then the claim is compensable if the injury is a material contributing cause of the disability or need for treatment. If in an initial claim, the disability or need for treatment is due to the combination of the injury and a preexisting, noncompensable condition, then the injury is compensable only if it is the major contributing cause of the disability or need for treatment. In order to obtain further compensation for disability or a need for treatment that is the result of a combination of the injury and a preexisting, noncompensable condition, the claimant must show that the injury is the major contributing cause of the disability or need for treatment."

Id. at 594, 853 P.2d 315.

Our interpretation of the prior version of ORS 656.005(7)(a)(B) remains persuasive under the current version of the statute. When the initially claimed condition is a combined condition, it is compensable only if the work injury is the major contributing cause of the disability or need for treatment. Although walking at work contributed to Hammond's fracture, it is undisputed that the fracture was the result of a combination of Hammond's leg bearing weight while walking and Hammond's preexisting cancer ; and the medical evidence is undisputed that the major contributing cause of the fracture and, therefore, the need for treatment, was the cancer. Thus, as the board held, claimant has not met her burden to establish the compensability of the claim.

Affirmed.

      ORS 656.005(7)(a)(B) provides:
      "If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition."


author: LAGESEN, P. J.

text:
    S. P. Z., Petitioner-Respondent, v. Gregory Michael KIRKWOOD, Respondent-Appellant.
    A162176
    Court of Appeals of Oregon.
    Submitted December 21, 2017. January 16, 2019
    Steven J. Sherlag filed the briefs for appellant.
    Charles R. Markley and Williams Kastner Greene & Markley filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

Respondent relentlessly contacted petitioner after she ended their romantic relationship. This contact caused petitioner to fear for her physical safety. To stop it, petitioner sought a permanent stalking protective order (SPO) under ORS 30.866. The trial court granted the SPO after respondent waived his right to a hearing and informed the court that he did not contest petitioner's allegations. The court then made a firearms certification, determining that the order "meets the requirements of federal law as set out below and subjects Respondent to federal prosecution for possession, receipt, shipping, transportation, or purchase of firearms * * * while it is in effect." That determination included a finding that petitioner and respondent had the type of qualifying relationship necessary for the firearms certification under federal law. On appeal, respondent assigns error to the trial court's determination that the relationship between petitioner and him was the type that allowed for entry of the firearms certification. For the reasons that follow, we affirm.

The relevant facts are procedural and not disputed. Respondent, who was not represented, waived his right to a hearing and told the trial court he did not contest petitioner's allegations regarding unwanted contacts. The court then determined that those contacts established that petitioner was entitled to an SPO. After explaining the limits that the order placed on respondent's contact with petitioner, the court inquired whether petitioner and respondent had been "involved in a sexually intimate relationship." Petitioner confirmed that the relationship had been sexually intimate. The court then explained to respondent that that fact meant that respondent needed to get rid of any firearms that he possessed and would not be able to possess them upon entry of the SPO.

That came as a surprise to respondent, and the trial court asked if he would prefer to have a hearing on the SPO, explaining that "I understand that's a significant right, and you know, again, I don't want to replace my judgment for yours." Respondent ultimately decided to go forward without a hearing and agreed to make arrangements to dispose of his firearms. The court then entered the SPO. As noted, the order contained a finding that petitioner and respondent had the type of relationship that would mean that the entry of the order would "subject[ ] Respondent to federal prosecution for possession, receipt, shipping, transportation, or purchase of firearms or ammunition while it is in effect." Specifically, the court checked the box on the order next to the line stating that petitioner was "[a] person who does or did cohabit (live in a sexually intimate relationship) with Respondent."

Sometime thereafter, respondent retained counsel and moved to vacate the firearms certification. Respondent argued that the finding about the parties' relationship was based on an "incorrect understanding of the 2015 revisions to ORS [sic ] under Senate Bill 525, codified at ORS 166.255." In support of the motion, respondent's lawyer represented that he had contacted the lawyer who represented petitioner at the SPO hearing and that she had "indicated her belief the restriction was ordered in error" because "her understanding was that Petitioner and Respondent were not 'intimate partners' as defined in ORS 166.255." Petitioner, who was represented by new counsel, opposed the motion on the ground that respondent had not identified any procedural authority for the motion and, in particular, had not demonstrated that the ORCP 71 criteria for vacating an order were satisfied. Following a hearing, the trial court summarily denied the motion. Respondent appealed the SPO and, following the court's entry of the order denying the motion to vacate the firearms certification, amended the notice of appeal to include that order.

On appeal, respondent assigns error as follows: "The trial court erred in ordering a firearm disability pursuant to the grant of a permanent stalking order where Petitioner and Respondent did not cohabitate." In support of that assignment of error, he contends, as he did in his motion to vacate the firearms certification, that the certification is erroneous because, in respondent's view, petitioner does not satisfy the definition of "intimate partner" in ORS 166.255(3)(d) (2015). Respondent points out that that provision defines an "intimate partner" of a person to be "the person's spouse, the person's former spouse, a parent of the person's child or another person who has cohabited or is cohabiting with the person in a relationship akin to a spouse." ORS 166.255(3)(d). According to respondent, that definition demonstrates that he did not have the type of relationship with petitioner that subjects him to a firearms certification because, as petitioner's lawyer acknowledged at the original SPO hearing, the parties were not spouses and never lived together as if they were. Respondent contends that he preserved those contentions in his motion to vacate the firearms certification but that, if the error is not preserved, it qualifies as plain error that we should exercise our discretion to correct.

Respondent may be correct that petitioner was not his "intimate partner" as that term is defined in ORS 166.255(3)(d). But, leaving aside the issues related to preservation, respondent's arguments about ORS 166.255 do not supply a basis for setting aside the firearms certification contained in the SPO. True, both state and federal law were mentioned during the SPO hearing. Nevertheless, the SPO itself contains no findings as to whether petitioner and respondent have the type of relationship described in ORS 166.255(3)(d). By its terms, the firearms certification contained in the SPO addresses only federal law, specifying that it meets "the requirements of federal law," including the relationship requirement, "and subjects Respondent to federal prosecution for possession, receipt, shipping, transportation, or purchase of firearms or ammunition while it is in effect." (Emphases added.) In his briefing to us, respondent has not supplied any arguments addressing the federal law under which the trial court made the firearms certification. For that reason, respondent's arguments fail to demonstrate any error in the certification.

Affirmed.

      The legislature substantially amended ORS 166.255 in 2018. The amendments took effect on January 1, 2019. See Or. Laws 2018, ch. 5, § 1. All references to the statute in this opinion are to the 2015 version.

      Immediately under the firearms certification, the SPO contains the following notation, indicating that certification has a related event code: "OJIN Event Code: ORBY; LEDS Brady Code: Y." However, nothing in the certification references state law or otherwise indicates that the trial court was making findings under state law standards.

      The definition of "intimate partner" under applicable federal provision, 18 USCA § 921(32), is worded slightly differently from ORS 166.255(3)(d). It provides: "The term 'intimate partner' means, with respect to a person, the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person."


author: HADLOCK, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Matthew Ryan WALKER, aka Matthew Walker, Defendant-Appellant.
    A161612
    Court of Appeals of Oregon.
    Argued and submitted January 9, 2018. February 6, 2019
    Sara F. Werboff, 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.
    Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Defendant appeals a judgment convicting him of second-degree child neglect, ORS 163.545, and recklessly endangering another person, ORS 163.195, after the victim, the two-year-old daughter of defendant's fiancée, found and ingested methamphetamine. Defendant assigns error to the trial court's denial of his motions for judgment of acquittal on each count. In his first assignment, he contends that the court should have granted a judgment of acquittal on the child neglect charge because the state failed to show that defendant had left the victim unattended. In his second assignment, defendant asserts that the court should have granted a judgment of acquittal on the reckless endangerment charge because the state did not prove that defendant was aware of and consciously disregarded the risk that the victim would find and ingest methamphetamine. For the reasons set out below, we agree with defendant that the trial court should have granted his motion for judgment of acquittal on the child neglect charge. However, we reject his argument that he was entitled to a judgment of acquittal on the charge of reckless endangerment. Accordingly, we reverse the judgment of conviction for second-degree child neglect but otherwise affirm.

In reviewing a trial court's denial of a motion for a judgment of acquittal, we determine whether, "resolv[ing] all conflicts of evidence in favor of the state and giv[ing] the state the benefit of all reasonable inferences," the record provides sufficient evidence "from which a reasonable trier of fact could find the elements of the crime beyond a reasonable doubt." State v. Rader , 348 Or. 81, 91, 228 P.3d 552 (2010).

This case arose after J was hospitalized in September 2015. Medical personnel noted several concerns: J had an elevated heart rate and high blood pressure ; she was overly excited, unable to stop moving or talking, talking rapidly, behaving repetitively; and her pupils were large. J's urine tested positive for methamphetamine as well as amphetamine, "which is the break down product when methamphetamine is metabolized." An examining physician, Dr. Valvano, testified that he believed "the most likely explanation, given her age and her level of symptoms, is that she ingested [the methamphetamine]" and that "the amphetamine got into her system at some point during [that Tuesday] morning."

Defendant had completed a prison term and a stay at a halfway house about a month before J was hospitalized. During that next month, defendant had lived on weekdays at the home where J lived with her eight-year-old sister and their mother, Schoenherr, who was defendant's fiancée. (He spent weekends elsewhere.) The home had an upstairs, where a full bathroom was located, and a main floor with a partial bathroom. Schoenherr, her children, and defendant slept downstairs, but at least some of the residents' clothing was kept on the upper floor. Defendant was addicted to methamphetamine and Schoenherr was a recovering addict.

Defendant and Schoenherr knew J to be a "very active" child who would eat things from the floor or garbage. A few weeks before J was admitted to the hospital, defendant had admitted to his parole officer that he had been using marijuana and "quite a bit" of methamphetamine while he was staying with Schoenherr. As a result, defendant was taken into custody in mid-September 2015 and he served a six-day jail sanction; he later described himself as having been "pretty much high the whole time" he was in jail. During a conversation with Schoenherr while serving that sanction, defendant told her that he understood it was not safe to have drugs and paraphernalia around the children. Defendant also told Schoenherr that she needed to remove a methamphetamine pipe from the house, which she found in the zipped pocket of a jacket that was in an upstairs closet. While defendant was in jail, Schoenherr deep-cleaned the home and found unused straws that could be used to sniff methamphetamine, known as "tooties," above an entertainment center.

After being released from jail, defendant stayed with his mother over the weekend, then returned to Schoenherr's home on the evening of Sunday, September 27. At some point after returning to Schoenherr's, defendant used methamphetamine. When a detective later asked him if it was possible he dropped some of it, he responded, "Maybe it's possible." The day after returning to Schoenherr's, Monday, defendant had two visitors, including his friend Santoya, whom Schoenherr described as "struggling with a drug addiction," and who came by for about 45 minutes. During his visit, Santoya asked defendant if he would "keep some of [Santoya's] stuff" in the home, which defendant refused to do. Defendant told Santoya he could shower, and, other than a short conversation with defendant on the front porch, Santoya spent his visit in the upstairs bathroom. Defendant later told a detective that "there [was] a chance that [Santoya] did get high in the house." Defendant based that observation on the way Santoya was acting: "He was falling asleep when he got [to the house]. When he left he was wide awake[.]" Defendant acknowledged that he and Schoenherr did not go through the home after Santoya and the other visitor departed to "make sure they didn't leave anything there," but instead went to bed. Defendant also said that he and Schoenherr had cleaned the kitchen and living room after he returned from jail, but had not cleaned the downstairs bathroom and had not cleaned upstairs (including the bathroom where Santoya had spent time).

The next morning (Tuesday, September 29), defendant woke up at 5:45 a.m. Schoenherr, who had taken melatonin as a sleep aid, slept through her 6:30 a.m. alarm, and J

woke up at around 7:00 a.m. Defendant made J breakfast and J got in bed with Schoenherr. Schoenherr remained in bed-sleeping at least part of the time-until 9:30 a.m.; she remained tired after she got up. While Schoenherr was in bed, defendant left J with Schoenherr both to shower and to smoke a cigarette outside. Defendant left the door open while smoking and saw J and her sister go upstairs together to get clothes before the sister left for school.

When Schoenherr got out of bed, she brought J with her to the patio, so Schoenherr could smoke a cigarette, and then the two ate cookies and watched television while defendant went to the store. During that time, Schoenherr noticed that J was having trouble breathing, fidgeting, and "acting like a tweaker." When defendant returned, Schoenherr asked him if he thought that J was "acting weird." J's symptoms worsened over the next two hours and Schoenherr and defendant took her to the hospital.

Police headed to the hospital after they received information that a two-year-old child had tested positive for methamphetamine. After observing J's abnormal behavior, a police officer interviewed defendant at the hospital. He told them of Santoya's visit the night before and the chance that Santoya had used drugs in the house, saying that, if Santoya "may have left something there, may have dropped something then or whatever, that's our fuck up." Defendant denied that he might, himself, have had methamphetamine at the house that J could have accessed. However, he did acknowledge having used methamphetamine in Schoenherr's home a couple of weeks earlier. He also acknowledged that he did not know whether he might have spilled any at that time: "I mean, when you're like that you're shaking and you're-you want your fix so * * * I don't know." Schoenherr subsequently consented to a search of the home; police found no evidence of methamphetamine there.

The state ultimately charged defendant with, among other things, second-degree child neglect and recklessly endangering another person. During a trial to the court, defendant moved for a judgment of acquittal on both the neglect and reckless endangerment charges. On the neglect charge, defendant argued, among other things, that the state had failed to show that defendant had left J "unattended," as that term is used in ORS 163.545. On the reckless endangerment charge, defendant argued that the state failed to show that he was aware of and consciously disregarded a risk that J might find and ingest methamphetamine.

The trial court denied defendant's motions and found defendant guilty. On appeal, defendant reprises the arguments he made below.

We begin with defendant's assertion that the trial court erred by not granting his motion for acquittal on the child neglect charge. ORS 163.545(1) defines child neglect in the second degree, a Class A misdemeanor:

"A person having custody or control of a child under 10 years of age commits the crime of child neglect in the second degree if, with criminal negligence, the person leaves the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of such child."

(Emphasis added.) Because it is dispositive, we limit our analysis to whether defendant left J "unattended" and we do not address the additional arguments he makes on appeal with regard to that charge.

Defendant argues that he did not leave J unattended because he left J in bed with Schoenherr. In response, the state argues that J was unattended because her age and behavior, combined with the presence of methamphetamine in the home, required "constant supervision," which she did not receive when defendant left her in bed with her mother.

ORS 163.545 does not define "unattended," so to discern the meaning, we look at the text and context of the statute along with relevant legislative history. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). When examining the text, we give words of common usage their "plain, natural, and ordinary meaning." PGE v. Bureau of Labor and Industries , 317 Or. 606, 611, 859 P.2d 1143 (1993). Webster's defines "unattended" as "not attended," "lacking a guard, escort, caretaker, or other watcher," "lacking people in attendance," "unaccompanied," "not cared for," "untended," and "not watched with care, attentiveness, or accuracy." Webster's Third New Int'l Dictionary 2482 (unabridged ed. 2002). Additionally, the parties point out that the term's meaning is discussed in the official commentary to ORS 163.545 :

"The term 'unattended' means that the child is left under circumstances in which no responsible person is present to attend to his needs . Leaving a three month old child in the care of a nine year old child might, in some cases, amount to child neglect. An alleged offense under this section must be viewed as a totality of circumstances; the age of the child, place where left, whether it was left alone or in the company of others, period of time left and, finally, whether the sum of these circumstances are such as would endanger the health or welfare of the child."

Commentary to Criminal Law Revision Proposed Oregon Criminal Code, Final Draft and Report § 174, 176 (July 1970) (emphasis added).

Both the dictionary definitions and the commentary suggest that the word "unattended" is not to be construed literally as applying only when a child is completely "alone." Rather, they suggest that a child is "unattended" even when other people are present if those individuals are not responsible and capable of attending to the child's needs.

Our case law bears out that understanding of the term. We considered whether a mother left her children unattended under ORS 163.545 in State v. Forcum , 58 Or. App. 5, 646 P.2d 1356 (1982). In that case, the defendant was the mother of five children between the ages of six and 16 years old. While the defendant was grocery shopping for an hour or two, a sheriff's deputy discovered her 16-year-old son in the yard so drunk that he needed help to walk and two daughters, ages six and 11, barefoot and dirty in the house doorway, which was blocked by a broken washer and dryer. During the deputy's time at the residence and before the defendant arrived home, the other two children returned from a separate, unauthorized trip to the grocery store. Additionally, the home was in a condition that the defendant acknowledged was unsanitary and unhealthy for the children. When the defendant returned, she told the deputy that she did not know her 16-year-old was "that" drunk. Id. at 7, 646 P.2d 1356. The defendant was charged with, and convicted of, child neglect for having left her six-year-old daughter at home with the other children. We said that, despite the home's "deplorable" state, "defendant's leaving [that child] with her older brother and sisters for one to two hours while she went grocery shopping cannot be described as leaving her 'unattended.' " Id. at 9, 646 P.2d 1356. We added that "[t]here was no showing that defendant's absence from the home created any greater risks than her presence." Id.

We also recently addressed the meaning of "unattended," as used in a similar statutory context, in State v. Long , 294 Or. App. 192, 430 P.3d 1086 (2018). In Long , the defendant-who had a warrant for his arrest-fell asleep while driving his family, resulting in a single-car accident. Another driver witnessed the accident and stopped to assist. The defendant's girlfriend, who was injured, and their children, who were uninjured, remained in the car. After the defendant and the other driver could not free the defendant's girlfriend from the car, the other driver said he would call 9-1-1. The driver called 9-1-1 and stayed with the family until the police arrived, while the defendant hid in the trees across the road from the accident. Id. at 193, 430 P.3d 1086. The defendant was found guilty of, among other things, two counts of first-degree criminal mistreatment, ORS 163.205, premised on his having left the children unattended. Id. at 193-94, 430 P.3d 1086. On appeal, the defendant contended that there was insufficient evidence to show that he had left the children unattended. Id. at 194, 430 P.3d 1086.

After considering the commentary to ORS 163.545, we held that children are not "unattended" when "a responsible person is present to attend to [their] needs." Id. at 195-96, 430 P.3d 1086. We emphasized that the state has the burden "to prove that the person [with whom the children were left] was not responsible or would not attend to them." Id. at 196, 430 P.3d 1086. Accordingly, we reversed the defendant's conviction in Long because there was "no evidence from which it could be found that [the other driver] was not a responsible person who would stay with the children and attend to them until emergency services arrived," and, therefore, the state had failed to show that the children had been left unattended. Id.

Long and Forcum govern here. As construed in those cases-consistently with the dictionary definitions and legislative history cited above-the term "unattended" describes a child only if any individuals who are present are "not responsible or would not attend" to the child's needs. Long , 294 Or. App. at 196, 430 P.3d 1086.

Even assuming that Schoenherr remained asleep the entire time she was in bed before 9:30, the state did not prove that she "would not attend" to J's needs when defendant left J in Schoenherr's bed when he took a shower and smoked a cigarette. Forcum teaches that the presence even of an impaired person-there, the intoxicated 16-year-old-is sufficient to keep a child from being "unattended" if the state does not prove that the impaired person would not attend to the child's needs. Similarly here, there is no evidence that the fact that Schoenherr was asleep would have kept her from attending to J. The only fact distinguishing Schoenherr from any other sleeping parent in that regard is the evidence that she had taken melatonin and had not risen when her alarm went off. But the record includes no evidence that the melatonin that Schoenherr had taken hours earlier would have made her less responsive than any other parent who slept in.

Reduced to its core, the state's argument is that a two-year-old child always must be considered "unattended" if the child is awake and the only adult present is not-including such circumstances as when a child awakes during the middle of the night, while the rest of the household sleeps. We disagree. The state meets its burden of proving that a child-even a toddler-is unattended when left in the care of a sleeping caregiver only if the state proves that the caregiver was irresponsible or-because of being asleep-"would not" respond to the child's needs. Here, the record includes no evidence that Schoenherr "would not" awake if J, who had been placed in bed with her, became active, cried, or otherwise demonstrated that she needed attending. Accordingly, the trial court erred when it denied defendant's motion for a judgment of acquittal on the child neglect charge.

We turn to defendant's second assignment of error. He argues that the trial court erred by denying his motion for a judgment of acquittal on the reckless endangerment charge because the state, by not establishing the circumstances under which J encountered and ingested the methamphetamine, did not prove beyond a reasonable doubt that defendant was aware of and consciously disregarded the risk that J might find and ingest methamphetamine. In response, the state contends that it did not need to show where in the home J ingested the methamphetamine to show that defendant was aware of and consciously disregarded the risk that the methamphetamine was accessible and that J would find it and suffer harm.

Our analysis begins with consideration of the pertinent statutes. Under ORS 163.195(1), a "person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." ORS 161.085(9) defines "recklessly" in the criminal context:

" 'Recklessly,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

We have emphasized that the state need prove only conscious disregard of a substantial risk of harm; ORS 163.195(1)"prohibits conduct that is likely to expose another person to harm; it is not limited to conduct that actually exposes another person to harm." State v. Harbert , 155 Or. App. 137, 141, 963 P.2d 710, rev. den. , 327 Or. 554, 971 P.2d 410 (1998) (quoted with approval in State v. Wakefield , 292 Or. App. 694, 698, 425 P.3d 491 (2018) ). Thus, "the relevant harm need only be possible or potential." State v. Cervantes , 232 Or. App. 567, 582, 223 P.3d 425 (2009). Moreover, the risk that a defendant's conduct creates may be a risk of harm that, if it occurs, will occur at some point in the future; the risked harm need not be something that would occur simultaneously with the defendant's conduct. Id.

Here, defendant acknowledges that the record supports a finding that "either defendant, or one of defendant's acquaintances with defendant's knowledge, brought methamphetamine into the home." He contends that the presence of methamphetamine in the home and the fact that J ingested it are not sufficient to establish that he acted recklessly. Instead, he contends, the state needed to establish the specific circumstances under which J encountered and consumed the drug. The state disagrees. In its view, the record is sufficient to support an inference that "defendant was aware of and consciously disregarded the risk that methamphetamine in the home was accessible, [that] J would find it," and that the child would be harmed as a result.

On this point, the state has the better argument. This is not a case in which the only evidence is that a dangerous substance was in a home and a child was harmed by ingesting that substance. Rather, in addition to those facts, the record also supports an inference that defendant knew that the manner in which methamphetamine had been used inside the home posed a substantial risk of harm to J, a toddler whom defendant knew to be active and prone to eating items that she found on the floor and in the garbage.

We note that certain circumstances are not in dispute for purposes of this appeal. The evidence supports a finding that defendant understood that methamphetamine is dangerous to children. While he was in jail, Schoenherr discussed that with him, and he told her where to find a methamphetamine pipe so she could remove it from the home. The record also supports a finding that defendant knew that J would eat things she found on the floor or in the garbage. Thus, the record allows an inference that, if defendant was aware that methamphetamine in the home was accessible to a child, it would pose a risk of serious harm to J. Indeed, defendant does not contend otherwise.

The question, then, is whether the record permits an inference that defendant was aware of and consciously disregarded a substantial risk that methamphetamine was accessible in the home. It does. Again, the evidence allows an inference that the methamphetamine that J ingested ended up in the home either when defendant used methamphetamine there, sometime in the two days preceding J's hospitalization, or when Santoya spent time in the upstairs bathroom the night before J was hospitalized, emerging "wide awake" after having previously been "falling asleep." Defendant acknowledged that, in his own experience, a person who is in need of a fix can be shaky and so focused on getting a fix that he could spill methamphetamine without noticing. Defendant further acknowledged that neither he nor Schoenherr went upstairs to check the bathroom after Santoya left the house. He also admitted that the upstairs bathroom did not get cleaned after Santoya spent time there, despite defendant's recognition that Santoya might have been using methamphetamine in that room. Finally, defendant suggested that he and Schoenherr had planned to clean the downstairs bathroom the day that J was hospitalized, but had not accomplished that. In short, a factfinder could determine that defendant-knowing that a visitor to his house, Santoya, may have used methamphetamine in the upstairs bathroom-did not check on the bathroom after Santoya used it, despite understanding that a person in need of a fix may be "shaking" and focused on his own needs. A factfinder also could find that defendant did not clean up the bathroom in which he had used methamphetamine himself. From that, the factfinder could conclude that, in both circumstances, defendant was aware of and consciously disregarded a substantial risk that some methamphetamine could have spilled, making it accessible to J, a "very active" toddler who had access to both bathrooms in the house. Defendant's contention that the record does not support a finding of recklessness lacks merit. The trial court did not err when it denied his motion for judgment of acquittal on the reckless endangerment charge.

Judgment of conviction for second-degree child neglect reversed; remanded for resentencing; otherwise affirmed.

      Defendant was also charged with first-degree criminal mistreatment and fourth-degree assault, on which he was acquitted, as well as endangering the welfare of a minor, which the state dismissed.

      J also had a forehead laceration, a burn on one arm, and "hypopigmented healed lesions over the tops of her feet" resulting from separate incidents that did not appear to be related to ingesting methamphetamine.

      Dr. Valvano described melatonin as "a substance that you can buy over-the-counter or by prescription that is used to help people sleep." Schoenherr testified that "working day shifts, swing shift, and sometimes graveyard shift kinda throws your sleeping habits off," and that melatonin helps her go to sleep and sleep better.

      Schoenherr testified that she had been "on and off awake" before 9:30, but she had previously told a police officer that she had been asleep.

      More recently, reversing a conviction on other grounds, we declined to address a defendant's argument "based on our dictum in * * * Forcum * * * that a person's liability for the offense is contingent on proof that the person's absence enhanced the risk to the child." State v. Paragon , 195 Or. App. 265, 272, 97 P.3d 691 (2004) (emphasis in original).