State v. Oxford

403 P.3d 528, 287 Or. App. 580, 2017 Ore. App. LEXIS 1019

• Court: Court of Appeals of Oregon
• Decided: August 30, 2017
• Docket: C112623CR, C140104CR; A159461 (Control), A159462
• Status: Published

Opinions

SERCOMBE, S. J.

In this consolidated criminal case, defendant challenges the trial court’s decision to strike his motion to suppress and its subsequent entry of judgments revoking his probation and convicting him of felon in possession of a firearm, ORS 166.270, unlawful manufacture of a destructive device, ORS 166.384, and unlawful possession of methamphetamine, ORS 475.894. The trial court struck defendant’s motion to suppress on the ground that the motion failed to “adequately appris[e] the Court as to what the issues are,” and, therefore, failed to comply with Uniform Trial Court Rule (UTCR) 4.060(l).¹ On appeal, defendant contends that the court erred in striking the motion because “(1) defendant’s motion satisfied UTCR 4.060(1), and (2) a defendant is not required to allege specific facts and arguments when contesting whether a warrantless search violates Article I, section 9, of the Oregon Constitution.”² As explained below, we reverse and remand the judgments of the trial court in this case.

Defendant was arrested and indicted for, among other things, felon in possession of a firearm, unlawful manufacture of a destructive device, and unlawful possession of methamphetamine. He had previously been convicted of felon in possession, and was on probation for that conviction at the time of his arrest. Defendant filed a pretrial motion to suppress evidence. In his motion to suppress, defendant moved, pursuant to Article I, section 9, for an order suppressing “the stop and seizure of the defendant, search of defendant’s residence and personal room, and the seizure of any and all evidence obtained as a result therefrom, including the firearms and explosive device, and all oral derivative evidence.” Citing State v. Miller, 269 Or 328, 334, 524 P2d 1399 (1974), he asserted that he had been subject to a war-rantless search and seizure, which was “per se unreasonable,” and the “state has the burden of proving otherwise.” Also relying on Miller, defendant further stated that he was “not required to allege any additional facts in a motion to suppress.”

In a brief in support of his motion to suppress, defendant discussed UTCR 4.060, Miller, and related cases at length. It was his position that his motion complied with the rule and that, in view of the rule and applicable case law, “the burden of production shifts to the state upon a claim that the search was warrantless, and the defendant’s motion must be granted unless and until the state produces evidence and argument to overcome the per se unreasonable search against which the defendant has constitutional protections.”

At a pretrial scheduling hearing, defendant’s counsel discussed scheduling for the suppression motion. The following exchange ensued:

“THE COURT: Is this one of those motions where you didn’t file the affidavit, all that stuff? Didn’t comply with the [.] TCRs?

“[COUNSEL]: It’s hard to say. I believe I am complying with [.] TCR.

“THE COURT: So this is one of those motions. I think your answer to my question is, yes, it is one of those. I just want to make sure, so I get a good idea of which judge I need to send it to * * * to make sure it’s dismissed without even being heard [.] ”

At a later hearing relating to the motion to suppress, the court observed that the state had not moved to strike and it appeared that the state did not intend to file such a motion. However, the court, on its own motion, struck defendant’s motion, stating that, “as far as the Court is concerned, what you filed in this case is not sufficient.”

Thereafter, as noted, defendant was convicted of felon in possession, unlawful manufacture of a destructive device, and unlawful possession of methamphetamine. In addition, the court revoked defendant’s probation on his existing felon-in-possession conviction, based on the finding that defendant had “violated the terms and conditions of his probation by committing new crimes (in [the consolidated case,] C140104CR).”

On appeal, defendant asserts that the court erred in striking the motion to suppress. We review the trial court’s ruling in this case for legal error. See State v. Roth, 235 Or App 441, 449, 234 P3d 1019 (2010).

UTCR 4.060(1) provides:

“All motions to suppress evidence:

“(a) must cite any constitutional provision, statute, rule, case, or other authority upon which it is based; and

“(b) must include in the motion document the moving party’s brief, which must sufficiently apprise the court and the adverse party of the arguments relied upon.”

As noted, defendant asserts that his motion satisfied the requirements of that rule and was “sufficient under Miller and this court’s decisions.” The state responds that the motion was insufficient to frame the issues in the case. We conclude that defendant has the better argument: The motion satisfied the requirements of the UTCR and was sufficient to require shifting the burden to the state to demonstrate the legality of the warrantless search.

We begin by observing that, in our view, the requirements of UTCR 4.060(1) are clear on their face. The motion must cite the authority on which it is based and, along with the accompanying brief, must “sufficiently apprise” the court and the state of the “arguments” relied upon by the moving party. The rule contains no requirement that a suppression motion contain detailed factual arguments. Instead, a motion that generally identifies a search or seizure by the state, asserts that the search or seizure was warrantless and, therefore, per se unreasonable unless the state demonstrates otherwise, cites authority in support of the motion, and requests suppression of evidence obtained as a result of the search or seizure “sufficiently apprise [s]” the court and the adverse party of the arguments relied upon by the moving party.

That understanding is consistent with the purposes that are to be served by a defendant’s motion to suppress. As we have explained, “[a] written motion to suppress ‘serves dual functions [:] [i]t frames the issues that the court will be required to decide, and it notifies the state of the contentions that it must be prepared to address at the hearing on the motion.’” State v. Parnell, 278 Or App 260, 265, 373 P3d 1252 (2016) (quoting State v. Sweet, 122 Or App 525, 529, 858 P2d 477 (1993) (second and third brackets in original)); see also State v. Anderson-Brown, 277 Or App 214, 220, 369 P3d 1248, rev den, 360 Or 465 (2016).

It is undisputed that, “[u]nder Article I, section 9, warrantless entries and searches of premises are per se unreasonable unless falling within one of the few ‘specifically established and well-delineated exceptions’ to the warrant requirement.” State v. Baker, 350 Or 641, 647, 260 P3d 476 (2011) (quoting State v. Davis, 295 Or 227, 237, 666 P2d 802 (1983)). “The state has the burden of proving that circumstances existing at the time were sufficient to satisfy any exception to the warrant requirement.” Id. (emphasis added); see also State v. Bonilla, 358 Or 475, 480-81, 366 P3d 331 (2015) (discussing consent exception to the warrant requirement); State v. Fessenden / Dicke, 355 Or 759, 764-65, 333 P3d 278 (2014) (discussing emergency aid and exigent circumstances exceptions to the warrant requirement); State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006) (discussing exigent circumstances “exception” to warrant requirement and “automobile exception” as “subset of the exigent circumstances exception”); State v. Krause, 281 Or App 143, 146, 383 P3d 307 (2016), rev den, 360 Or 752 (2017) (search incident to arrest exception to the warrant requirement); State v. Smith, 277 Or App 298, 302-03, 373 P3d 1089, rev den, 360 Or 401 (2016) (discussing officer safety exception to the warrant requirement); State v. Cherry, 262 Or App 612, 616, 325 P3d 813 (2014) (“One exception to the warrant requirement is the ‘inventory’ exception.”). Thus, a motion that seeks suppression of evidence obtained as the result of a search or seizure that the defendant asserts was conducted without a warrant and was, therefore, per se unreasonable, sufficiently apprises the court and the state of the defendant’s argument, and shifts the burden to the state to demonstrate the legality of the search.

In Miller, the Oregon Supreme Court considered circumstances similar to those presented in this case. There, the trial court had denied the defendant’s motion to suppress on the ground that the motion failed to conform with a local court rule that required that a motion to suppress be “accompanied by an affidavit or affidavits on behalf of the defendant setting forth all facts within his knowledge upon which he intends to rely in support of the motion.” 269 Or at 332. The rule further required that the motion “make specific reference to any constitutional provision, statute, rule, case or other authority upon which it is based and shall be accompanied by the moving party’s brief which shall be adequate reasonably to apprise the court and the adverse party of the facts, arguments and authorities relied upon.” Id. In denying the motion, the trial court reasoned that “(1) it was unsupported by an affidavit sufficient to apprise the court and the state of the facts on which defendant relied and (2) it alleged ‘conclusory legal theories unsupported by facts.’” Id. at 330. The Supreme Court held that the trial court erred.

The Supreme Court first explained that, in considering the sufficiency of a motion to suppress, “it must be kept in mind that a search and seizure without a warrant is per se unreasonable and that the state has the burden to establish the legality of the search in such a case.” Id. at 334. Accordingly, “a motion to suppress evidence seized during a search without a warrant, supported by an affidavit stating that the search and seizure was made without a warrant, is sufficient to place that burden upon the state.” Id. And, in such a case, the state is not entitled to simply demand that suppression be denied, but must, instead, “proceed to satisfy its burden.” Id. Addressing the local rule’s requirement that a defendant, in an affidavit attached to his motion, “set forth all facts within his knowledge upon which he intends to rely in support of the motion,” the court stated that, if “a defendant intends to rely solely upon the fact that the search and seizure was made without a warrant, his motion to suppress, supported by an affidavit stating that fact, would be a statement of fact sufficient to satisfy the requirement of the rule, at least for the purpose of imposing upon the state the burden to show the legality of the search.” Id. at 334-35 (internal quotation marks omitted); see also Roth, 235 Or App at 449 (“[I]n Miller, the Supreme Court held that a defendant’s motion to suppress gives sufficient notice of the necessary facts underlying the motion by alleging only that the search at issue was ‘without a warrant.’”); Sweet, 122 Or App at 529-30 (holding that a motion to suppress was insufficient where it failed to expressly assert that the challenged search was warrantless). The court further observed that to interpret the local rule to require that, in order to file a sufficient motion, a defendant must allege additional facts “in an affidavit in support of a motion to suppress evidence seized without a warrant would * * * raise serious questions as to the validity of that rule.” Miller, 269 Or at 335. Based on that reasoning, the court held that the trial court erred in concluding that the defendant’s motion failed to satisfy the requirements of the local rule.

Here, as required by UTCR 4.060(l)(a), defendant’s motion cited authority on which defendant relied, specifically, Article I, section 9, and Miller. It apprised the court and the state that defendant challenged specific searches and seizures: the state’s “stop and seizure of the defendant,” and the state’s “search of the defendant’s residence and personal room.”³ The motion set forth defendant’s position that the searches and seizures had been warrantless and that “ [w] arrantless searches and seizure are per se unreasonable.” And it laid out the evidence that defendant sought to have suppressed: “any and all evidence obtained as a result” of the warrantless search and seizure of defendant and the warrantless search of defendant’s residence and personal room, “including the firearms and explosive device, and all oral derivative evidence.” Defendant’s assertions in his motion and brief in support “sufficiently apprise [d]” the court, UTCR 4.060(l)(b), and were sufficient to satisfy the requirements of the rule, “at least for the purpose of imposing upon the state the burden to show the legality of the search.” Miller, 269 Or at 334. Under the circumstances, the trial court erred in striking defendant’s motion for failure to comply with UTCR 4.060(1). Defendant was entitled to have his suppression motion considered on its merits.⁴ Accordingly, we reverse and remand the judgments in the consolidated cases.⁵

Reversed and remanded.

1 Pursuant to UTCR 4.060(1):

“All motions to suppress evidence:

“(a) must cite any constitutional provision, statute, rule, case, or other authority upon which it is based; and

“(b) must include in the motion document the moving party’s brief, which must sufficiently apprise the court and the adverse party of the arguments relied upon.”

2 Article I, section 9, provides, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”

3 We acknowledge that there could be cases in which the materials before the court at the time the suppression motion is filed would mean that averments like these would not adequately “frame [] the issues that the court will be required to decide.” Parnell, 278 Or App at 265 (internal quotation marks omitted). For example, if an indictment charged a defendant with possession crimes that occurred over a broad range of dates, possibly suggesting that multiple searches and seizures had occurred, perhaps a bare reference to “the stop and seizure of the defendant” would be inadequate to apprise the court and state about which seizure was being challenged. No such ambiguity is present in this case.

4 We note that the state asserts that, even if defendant’s motion was sufficient to proceed, he is entitled only “to reversal of his convictions and remand for the trial court to hold a suppression hearing, with a new trial to be held only if it grants suppression.” We decline the state’s invitation to specifically limit the remand in this case. Under the circumstances, we conclude that it is appropriate to leave it up to the trial court to determine, after considering defendant’s motion to suppress, whether a new trial is required or appropriate. See State v. Baughman, 361 Or 386,410-11, 393 P3d 1132 (2017) (leaving to the trial court the decision about the appropriate proceedings on remand).

5 As noted, the judgment revoking defendant’s probation was based on the finding that defendant had “violated the terms and conditions of his probation by committing new crimes (in [the consolidated case,] C140104CR).” Thus, it is undisputed that, if defendant’s convictions are reversed and remanded, the probation revocation judgment should be reversed and remanded as well.