OR: Inventory of backpack defendant was told to leave behind with car was unreasonable

Defendant was driving a friend’s car police stopped, and there was no insurance card in the car. The officer said he was going to inventory the car, and he wouldn’t let the defendant take a backpack from the car. That made the inventory discretionary and unreasonable as to the backpack. State v. Dimmick, 248 Ore. App. 167, 273 P.3d 212 (2012):

Here, the city’s impoundment ordinance authorized Lundry to seize the vehicle defendant was driving. However, the impoundment policy does not address Lundry’s authority to seize portable closed containers located within the vehicle at the time it was stopped. Nor does the policy specify that items present in the vehicle at the time it was stopped must be inventoried. Rather, Lundry was left to exercise his discretion to determine whether the backpack should have been seized as part of the impoundment of the vehicle. Yet, an essential purpose of the limitation on police inventories is to require the police to conduct the inventory “pursuant to a properly authorized administrative program, designed and systematically administered so that the inventory involves no exercise of discretion by the law enforcement person directing or taking the inventory.” Atkinson, 298 Or at 10. Because Lundry’s seizure of the backpack was an exercise of discretion to deviate from the express authority granted by the city’s impound and inventory ordinances, the seizure of the backpack was invalid.

Further, as we stated in Sparks, “inventorying” the contents of a closed container that a vehicle’s occupant removes from a vehicle serves none of the purposes justifying the inventory exception to the warrant requirement. Rather, the purposes put forward to justify that policy–protecting the vehicle owner’s property while the vehicle is in police custody, reducing the likelihood of false theft claims against the police, and “in the occasional case,” protecting the police and others from danger if there is a “concrete basis in specific circumstances” to believe that danger exists–would be served by encouraging occupants to remove small containers. Sparks, 228 Or App at 167 (quoting Atkinson, 298 Or at 7-8) (emphasis in original).

For those reasons, the seizure of the backpack was not justified by the impoundment of defendant’s vehicle. Nor did the state provide any other lawful basis for the seizure and consequent search.