dissenting.
Article I, section 9, permits a limited intrusion to conduct an inventory if three requirements are satisfied. The first requirement is that the vehicle must have been lawfully impounded and, if that requirement is not met, the inquiry is over. State v. Atkinson, 298 Or 1, 8-9, 688 P2d 832 (1984). Whether police have authority to impound and inventory a vehicle “is a matter for politically accountable officials to decide by laws, ordinances, or delegations of rulemaking authority.” 298 Or at 6. The City of Portland has authorized its police officers to impound a vehicle if
“[t]he vehicle was in possession of a person taken into custody by a law enforcement officer and no other reasonable *213disposition of the vehicle was available[.]” PCC § 16.04.020(b)(7). (Emphasis supplied.)
The state had the burden of proving that the officer who arrested defendant did not have a reasonable alternative to impounding his mother’s truck. Although the state presented no evidence to satisfy that burden, the majority holds that the officer lawfully impounded the truck. Even if the facts that the majority presumes and takes judicial notice of were true, the record compels the conclusion that the officer should have left the truck where she found it. Because she seized the truck unlawfully, the inventory that she subsequently conducted was also unlawful.
When Officer Ryan arrested defendant, defendant told her that he did not want the truck to be impounded. He explained that the truck belonged to his mother, who lived in Rhododendron, and that she would come to pick it up. Ryan believed defendant about the truck’s ownership, but she did not attempt to call his mother. Instead, she decided to impound the truck and began to inventory its contents.1 She opened the door to the cab and found some balloons in plain view on the seat. On the basis of her training and experience, she suspected that the balloons contained heroin.2 She seized them and submitted them to the crime lab for testing. The tests showed that they contained tar heroin.3
In denying defendant’s motion to suppress the heroin, the trial court concluded:
“There was [sic] miscellaneous items of tools that [Ryan] could see that were in plain view and [defendant] said let my mother come and get the rig. She doesn’t have to do that. * * * [S]he’s not required to sit there and wait for the mother or to call the mother.”
The trial court and the majority apparently conclude that the only alternative to impounding the truck was to wait for *214defendant’s mother to retrieve it and that it would have been unreasonable to do so. That conclusion is erroneous for at least three reasons.
First, the state has failed to present any evidence bearing on the reasonableness of waiting for the mother. The reasonableness of that alternative depends on the length of time that would have been involved weighed against the urgency of Ryan’s “patrol duties [that] required her to be at places other than parked along side the truck for whatever period of time it would take for the mother to arrive.” 123 Or App at 212. I agree that it would not have been reasonable to expect Ryan and her partner to wait indefinitely for defendant’s mother. However, the state offered no evidence about the officers’ other duties, which the majority is willing to presume required immediate attention. 123 Or App at 212. We cannot presume facts that the state was obligated to prove. Moreover, the record contains no evidence about how far Rhododendron is from the location where Ryan arrested defendant, nor is there any evidence of how long it would have taken defendant’s mother to make the trip. The majority takes judicial notice that Rhododendron is 35 miles away. I have serious reservations about taking judicial notice, at the appellate level, of facts in favor of the state. See State v. Cervantes, 118 Or App 429, 432 n 2, 848 P2d 118, rev allowed 317 Or 485 (1993). Moreover, the record does not indicate whether the officer asked defendant if his mother was in Rhododendron at the time. For all the officer knew, the mother was in Portland and could have been summoned to the scene in moments.
In my view, PCC § 16.04.020(b)(7) imposes a duty to make a reasonable inquiry before concluding that “no other reasonable disposition of the vehicle [other than impounding it is] available.” In this case, the officers made no inquiry whatsoever. In the absence of any evidence about how long it would have taken the mother to arrive and what other duties beckoned the officers, the trial court had no basis for concluding that it would have been unreasonable for the officers to wait for her.
Second, the majority ignores the possibility that the mother could have arranged for someone else to retrieve the truck. For all we know, she may have had a friend who lived *215on the street where defendant was parked. Defendant might even have parked the truck right in front of that friend’s house. The officers did not even try to call defendant’s mother. The state did not prove that it would have been unreasonable to wait a few moments for a friend or relative to retrieve the truck.
The state’s case rests on its contention that it would have been unreasonable to wait for someone to retrieve the truck, so it was not worth the bother of making any effort or inquiry in that direction. The majority is willing to presume and take judicial notice of every fact that would be necessary to support that position. I am not. The state had the burden of proof and supplied none. That should be the end of the story.
Finally, even if the state had proven everything that the majority is willing to presume, the meager evidence in the record still compels the conclusion that the officers had a reasonable alternative to impounding the truck. Ryan testified that the truck “was legally parked to the side, it wasn’t a hazard or anything.” Despite defendant’s protestations about having the truck towed, Ryan and her partner decided to impound it, because there was “no way of securing those items [that] were in the back of the truck.” The officers’ concern about the risk of theft to defendant’s possessions was reasonable. However, no rule of law precluded defendant from assuming that risk, and he expressed his desire to do so.4 For that matter, defendant could have erected a sign that said, “Help Yourself.” So long as the truck was lawfully parked and was not creating a hazard, the officers had a reasonable alternative to impounding it over defendant’s objection. They could simply have left it where it was.
The state failed to establish that “no other reasonable disposition of the vehicle was available.” PCC § 16.04.020. The officers had no authority to take the truck into custody. The inventory was therefore unlawful. Or Const, Art I, § 9; State v. Atkinson, supra, 298 Or at 9; State v. Gaunce, *216supra n 1, 114 Or App at 193 n 3. The court erred by denying defendant’s motion to suppress.
I dissent.
Ryan was impounding the truck when she seized it with the intent of having it towed. State v. Gaunce, 114 Or App 190, 195, 834 P2d 512, rev den 315 Or 271 (1992).
The state does not contend that, before Ryan opened the door, the officers had any reason to believe that the truck contained evidence of a crime.
The Portland Police Bureau’s inventory guidelines provide that “officers shall not open closed containers nor inventory the contents thereof.” Defendant does not contend that the balloons were closed containers or that the removal of their contents violated the established inventory procedure.
It appears that the majority believes that the arrest deprived defendant of his free will to make that choice. If an arrest deprives a person of all free will, then all post-arrest statements would be inadmissible and any consent that followed an arrest would necessarily be involuntary. We have rejected those propositions long ago.