State v. Stevens

540 P.3d 50, 329 Or. App. 118

• Court: Court of Appeals of Oregon
• Decided: November 15, 2023
• Docket: A176619
• Status: Published

Opinion

118 November 15, 2023 No. 589

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent, v. ERIC THOMAS STEVENS, Defendant-Appellant. Washington County Circuit Court 19CR33850; A176619

Theodore E. Sims, Judge. Argued and submitted April 24, 2023. Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge. ORTEGA, P. J. Portions of the judgment ordering defendant to pay a “$40.00 community service fee” and a “supervision fee” reversed; otherwise affirmed. Cite as 329 Or App 118 (2023) 119 120 State v. Stevens

ORTEGA, P. J. Defendant appeals from a judgment convicting him of unlawful possession of cocaine, ORS 475.884, and driving under the influence of intoxicants (DUII), ORS 813.010. In his first assignment of error, he challenges the trial court’s denial of his motion to suppress evidence found during a search of his car incident to his arrest for DUII. Defendant acknowledges that State v. Krause, 281 Or App 143, 383 P3d 307 (2016), rev den, 360 Or 752 (2017), is contrary to his position but contends that Krause is plainly wrong and should be overruled. In his second and third assignments of error, defendant challenges the imposition of two fees that appeared for the first time in the written judgment. In response, the state argues that defendant failed to preserve his argument in support of his first claim of error and that Krause is not plainly wrong, and it concedes that the trial court erred in imposing the two fees in the judgment that were not announced in open court. As to defendant’s first assignment of error, we assume without deciding that his argument is preserved and conclude that he has not met his burden to establish that Krause is plainly wrong. We therefore reject that assignment of error. As to defendant’s second and third assignments of error, we accept the state’s concession that the trial court erred in imposing the fees, because the record shows that the trial court intended to waive all other fees aside from those announced at sentencing. See State v. Sankey, 289 Or App 846, 847, 409 P3d 73 (2018) (accepting the state’s concession and reversing financial penalties that were imposed for the first time in the judgment where the record was clear that the court intended to waive them). Accordingly, we reverse the portions of the judgment imposing those fees and other- wise affirm. We review a trial court’s denial of a motion to sup- press for legal error and are bound by the court’s explicit and implicit factual findings if evidence in the record sup- ports them. State v. Keck, 328 Or App 296, 298, 537 P3d 163 (2023). The relevant facts are few and undisputed. An officer stopped defendant around 1:30 a.m. to investigate traffic violations. The officer observed signs that defendant Cite as 329 Or App 118 (2023) 121

was impaired by alcohol and saw fresh marijuana and par- aphernalia in the car. The officer asked for and received defendant’s consent to perform field sobriety tests (FSTs). Defendant got out of his car and performed the FSTs near the front of the officer’s patrol car. The officer then arrested defendant for DUII, handcuffed him, and placed him in the back of the patrol car. Within minutes of defendant’s arrest, officers searched his car for evidence related to DUII—spe- cifically, alcohol and marijuana—and discovered a container of cocaine. Defendant filed a motion to suppress evidence seized during the traffic stop. At the suppression hearing, defendant argued that the search of his car was not justified incident to his arrest for DUII because the search was not reasonable in time, scope, and intensity. Specifically, defen- dant argued that it was not reasonable to search his car for evidence of drugs because the probable cause to arrest him for DUII was based on alcohol impairment. The trial court denied defendant’s motion. The court determined that the officer developed probable cause to arrest defendant for DUII after he completed the FSTs and that the search of defendant’s car for evidence of alco- hol and marijuana was justified as a search incident to that arrest. On appeal, defendant assigns error to that ruling. We begin with the relevant legal principles. Article I, section 9, of the Oregon Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” “[A] search or seizure conducted without a warrant is per se unreasonable, unless that search or seizure falls within one of the specifically established and well delineated excep- tions to the warrant requirement.” State v. Fulmer, 366 Or 224, 230, 460 P3d 486 (2020) (internal quotation marks and citation omitted). One such exception is a search incident to arrest, which must relate to a crime that there is probable cause to believe the arrestee has committed, and it must be reasonable in scope, time, and intensity. State v. Owens, 302 Or 196, 204-05, 729 P2d 524 (1986); State v. Caraher, 293 Or 741, 758-60, 653 P2d 942 (1982). “A warrantless search inci- dent to arrest can be made for any of three purposes: (1) to 122 State v. Stevens

protect a police officer’s safety; (2) to prevent the destruction of evidence; or (3) to discover evidence of the crime of arrest.” State v. Mazzola, 356 Or 804, 811, 345 P3d 424 (2015) (citing State v. Hoskinson, 320 Or 83, 86, 879 P2d 180 (1994)). In Krause, we explained that only “[t]he first two of those purposes underlying the exception to the warrant requirement relate, in some ways, to exigency,” but that “the same is not true of the third basis for a search incident to arrest” (i.e., to discover evidence of the crime of arrest). 281 Or App at 146. In that case, a police officer discovered mari- juana during an inventory of the defendant’s car, and the officer arrested the defendant for possession of marijuana within 1,000 feet of a school. Id. at 144. The officer then searched a closed container found in the defendant’s car and found additional controlled substances. Id. On appeal, the defendant argued that the officer’s warrantless search of her car was not a valid search incident to arrest because she was already out of the car when the officer developed probable cause to arrest her and therefore no longer had control over the closed container. Id. at 145. Reviewing our prior cases on searches incident to arrest, we disagreed and explained that a search to discover evidence of the crime of arrest “may be justified even if the defendant has been removed from the area in which the officer believes that evidence may be located.” Id. at 146-48 (discussing State v. Washington, 265 Or App 532, 335 P3d 877 (2014), State v. Clew, 187 Or App 322, 67 P3d 420 (2003), State v. Burgholzer, 185 Or App 254, 59 P3d 582 (2002), and State v. Augard, 122 Or App 485, 858 P2d 463 (1993)). We held that a search incident to arrest conducted for the purpose of discovering evidence of the crime of arrest “will comport with Article I, section 9, even though the defendant no longer has control over the area searched, as long as the evidence reasonably could be found in that area and the search is otherwise rea- sonable in time, scope, and intensity.” Id. Under the circum- stances of that case, we concluded that the search of the closed container found in the defendant’s car was reasonable in time, scope, and intensity because the search occurred immediately after the officer developed probable cause for Cite as 329 Or App 118 (2023) 123

the defendant’s arrest, and the defendant had exited the car only shortly before that occurred. Id. at 149. In dissent, Judge Egan disagreed with the major- ity’s conclusion that a search incident to arrest to discover evidence of the crime of arrest is not based on exigency. Id. at 151 (Egan, J., dissenting). The dissent reasoned that “[e]xigency is the backbone of the search-incident-to-arrest exception to the warrant requirement,” and that the court should therefore not take a “categorical approach” but instead “consider the individual circumstances of each case prior to determining whether the police may search the inte- rior of a vehicle, and any closed containers within it, upon the arrest of a driver.” Id. at 151-52 (Egan, J., dissenting). In the dissent’s view, “[t]he implication of the majority’s view that exigency is not necessary to justify a search incident to arrest to obtain evidence of the crime of arrest is that, once such a search commences, the presumption that a warrant is required is lifted and the search effectively has no limits,” reducing the warrant requirement of Article I, section 9, “to a nullity.” Id. at 153 (Egan, J., dissenting). Returning to the parties’ arguments in this case, defendant contends that Krause is plainly wrong because, in his view, it construed and applied the exception to the Article I, section 9, warrant requirement for a search inci- dent to arrest beyond the scope of its animating purpose: exigency. In defendant’s view, exigency animates all three purposes for which a lawful search incident to arrest may be conducted and a search incident to arrest to discover evi- dence of the crime of arrest must therefore be limited to evi- dence that reasonably could be concealed on the arrestee’s person or in the belongings in their immediate possession at the time of the arrest. That is so, defendant contends, because the warrant exception does not apply when the search can be delayed to obtain a warrant. Defendant first argues that Krause was incorrectly decided under then-existing case law. Defendant points to Mazzola, where the Supreme Court characterized the search incident to arrest doctrine as one that “exists because ‘[a]n arrest * * * creates a type of exigency justifying a warrant- less search of the arrested person,’ ” 356 Or at 812 (quoting 124 State v. Stevens

State v. Milligan, 304 Or 659, 669, 748 P2d 130 (1988)), and explained that “where a warrantless search for evidence of the crime of DUII is supported by probable cause to arrest the defendant, the issue of exigency should be assessed in light of the reasonableness of the search in time, scope, and intensity.” Id. at 819-20. Defendant also argues that Krause cannot be reconciled with subsequent Supreme Court deci- sions in Fulmer and State v. McCarthy, 369 Or 129, 501 P3d 478 (2021), “which have proven its central assumption to be erroneous,” viz., “that a search incident to arrest for evidence of a crime can be untethered from the exigency rationale.” In defendant’s view, “[i]n light of Fulmer and McCarthy, we now know that warrant exceptions must be strictly limited to their animating purposes, and the Supreme Court’s repu- diation of the automobile exception [in McCarthy] urges a refocusing of the search-incident-to-arrest exception on its animating exigency rationale.” The state responds, first, that defendant failed to preserve the argument he advances on appeal because it is qualitatively different than the argument that he made to the trial court and the purposes of preservation have not been served in this case. The state further contends that, in any event, Krause is not plainly wrong. In the state’s view, the text and history of Article I, section 9, and early Supreme Court case law establish that the rationale under- lying a search incident to arrest to discover evidence of the crime of arrest is not exigency but instead “the general idea” that such searches “are not ‘unreasonable.’ ” The state points to Owens and Caraher, which upheld searches incident to arrest for evidence relevant to the crime of arrest that were “reasonable” in the totality of the circumstances. See Owens, 302 Or at 202 (explaining that a search incident to arrest of “personal ‘effects,’ found on or immediately associated with the arrestee” is permitted “when it is reasonable to believe that evidence of a crime for which the person was arrested could be concealed there,” and that “[t]he test is the reason- ableness of the search in light of the circumstances of the particular case”); Caraher, 293 Or at 759 (explaining that a search incident to arrest for evidence of the crime of arrest is permitted “so long as it is reasonable in light of all the facts”). Cite as 329 Or App 118 (2023) 125

Assuming without deciding that defendant’s argu- ment is preserved, we conclude that he has not met his bur- den to establish that Krause is plainly wrong. The “plainly wrong” standard is a “rigorous stan- dard grounded in presumptive fidelity to stare decisis.” State v. Civil, 283 Or App 395, 406, 388 P3d 1185 (2017). Accordingly, we begin with “the assumption that our prior cases were decided correctly, and the party urging us to abandon precedent must affirmatively persuade us to the contrary that a decision is plainly wrong.” State v. McKnight, 293 Or App 274, 278-79, 426 P3d 669, rev den, 363 Or 817 (2018) (internal quotation marks and citation omitted). Further, where a party is relying on subsequent case law from a higher court for its argument that a case is plainly wrong, “[i]t must ‘plainly be the case’ that sub- sequent Supreme Court decisions undercut the validity of prior Court of Appeals decisions before we will overrule our precedents.” State v. Woods, 317 Or App 506, 513, 505 P3d 432, rev den, 370 Or 198 (2022) (quoting State ex rel Maney v. Hsu, 308 Or App 822, 827, 482 P3d 136, rev den, 368 Or 273 (2021)). Whether one of our cases remains good law in light of a subsequent Supreme Court decision turns on “whether the Supreme Court’s decision overrules our prior holding and, if it does not, whether the court’s analysis demonstrates that our prior decision is ‘plainly wrong,’ such that we should overrule it ourselves.” Id. (internal quotation marks, cita- tion, and brackets omitted). Applying that standard, we are not persuaded that Krause is plainly wrong, either under then-existing case law or in light of subsequent Supreme Court decisions. “[T]o be ‘plainly wrong’ a holding must first be wrong,” not sim- ply one about which reasonable minds can disagree. Civil, 283 Or App at 406, 415; see also Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011) (“We will not depart from established precedent simply because the personal policy preferences of members of the court may differ from those of our predecessors who decided the earlier case.” (Internal quotation marks, citation, and brackets omitted)). The parties’ arguments in this case demonstrate the ten- sion that exists in Supreme Court case law characterizing 126 State v. Stevens

the underlying rationale of the search incident to arrest doctrine as one based on reasonableness in light of all the facts or one grounded solely in exigency. That tension is also evident in the fractured decision in Krause. But defendant has not established that Krause is plainly contrary to con- trolling Supreme Court precedent, and defendant largely echoes the dissent in Krause, which the majority necessar- ily considered and rejected. Further, defendant’s contention that the reasoning in Fulmer and McCarthy casts doubt on Krause depends on the premise, which Krause considered and rejected, that all three purposes of a search incident to arrest are grounded in exigency. Accordingly, the court’s analysis in those cases does not persuade us that our hold- ing in Krause is plainly wrong. Finally, because Fulmer and McCarthy involved different warrant exceptions, neither case overruled our holding in Krause regarding the search incident to arrest exception. See McCarthy, 369 Or at 131- 32 (automobile exception); Fulmer, 366 Or at 226 (inventory exception). We therefore reject defendant’s first assignment of error. Portions of the judgment ordering defendant to pay a “$40.00 community service fee” and a “supervision fee” reversed; otherwise affirmed.