Argued and submitted on August 29, 2012.
Multnomah County Circuit Court 100343558 Kelly Skye, Judge.
Jonah Morningstar, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
ORTEGA, P. J.
Defendant appeals his conviction for unlawful possession of a firearm under ORS 166.250 and assigns error to the trial court's denial of his motion to suppress. He argues that the officer's discovery of a valid arrest warrant did not purge the taint of his unlawful stop of defendant because the officer did not receive adequate notice of the warrant's existence to satisfy ORS 133.310(2) and did not show defendant the outstanding warrant as required by ORS 133.235(3). We hold that the officer received the requisite notice of the outstanding warrant and that he was not required to show defendant the outstanding warrant under these circumstances. Accordingly, we affirm.
Where, as here, the facts are undisputed, we review the trial court's application of the law to those facts for legal error. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). A Gresham police officer responded to a dispatch call at about 12:30 a.m. based on a citizen report of a car driving with flat tires. The officer found a car with two flat tires parked against a curb and approached to investigate whether the driver might have been driving under the influence of intoxicants (DUII). The car was not running, and the officer knocked on the window to wake defendant, who was sleeping in the driver's seat. Without asking any questions, the officer requested defendant's identification, used it to run a search on the computerized Law Enforcement Data System (LEDS) and National Crime Information Center (NCIC) databases, and discovered a Clackamas County warrant for defendant's arrest. Another officer then placed defendant under arrest and conducted a pat-down search, which led to the discovery of a handgun in defendant's back pocket.
After being charged with unlawful possession of a firearm, defendant moved to suppress evidence of the handgun. The trial court denied that motion based on its conclusion that, although defendant was unlawfully stopped because the officer did not have reasonable suspicion of DUII, the taint of the illegal stop was purged by the intervening discovery of the arrest warrant under State v. Dempster, 248 Or 404, 434 P.2d 746 (1967). In that case, the Supreme Court held that an arrest based on an outstanding warrant can serve to attenuate the link between unlawful police conduct and subsequently discovered evidence, thereby purging that evidence of the taint of the prior unlawful conduct so that suppression is not required. Following the trial court's application of Dempster, defendant entered into a conditional guilty plea pursuant to ORS 135.335(3).
On appeal, defendant argues that he was unlawfully seized in violation of Article I, section 9, of the Oregon Constitution because the officer stopped him without reasonable suspicion that he had committed a crime. He contends that the officer's discovery of the outstanding arrest warrant did not attenuate the discovery of the incriminating evidence from the initial unlawful stop under Dempster because the officer did not lawfully arrest him under ORS 133.310(2), which reads as follows:
"A peace officer may arrest a person without a warrant when the peace officer is notified by telegraph, telephone, radio or other mode of communication by another peace officer of any state that there exists a duly issued warrant for the arrest of a person within the other peace officer's jurisdiction."
Defendant argues that in State v. Bentz, 211 Or.App. 129, 158 P.3d 1081 (2007), this court concluded that Dempster does not apply where an officer violates ORS 133.310(2) by failing to confirm the validity of an arrest warrant before conducting a search incident to arrest. Defendant maintains that, in this case, the LEDS database report of an outstanding warrant is not the legal equivalent of an officer "actually being 'notified' that there is a valid warrant for the individual's arrest" as required by the statute. Defendant contends that, in order to comply with ORS 133.310(2), an officer must verify the existence of the warrant with the issuing agency before making the arrest. Defendant further argues that, in Bentz, this court ruled that an underlying arrest is invalid when any statute governing arrests is violated and that, here, the arrest was also unlawful because the officer violated ORS 133.235(3) by not showing defendant the arrest warrant.
The state responds that, even if the officer's initial stop of defendant was unlawful, the officer's discovery of an outstanding warrant dissipated the taint of any prior illegality. The state contends that defendant's reliance on Bentz is misplaced because, there, the court held only that Dempster did not apply when an officer learned of an out-of-state warrant directly from a defendant, and, here, the officer learned of the instate warrant from a law enforcement database. Accordingly, the state contends that Dempster applies and that the discovery of the outstanding warrant purged the taint of the stop if the stop was unlawful.
We first address the state's argument that Bentz is not controlling in this case. In Bentz, a police officer entered a private residence without a warrant. 211 Or.App. at 131. During questioning, the defendant informed the officer that there was an outstanding warrant for his arrest. Id. at 132. Relying solely on the defendant's word as to the existence and validity of the warrant, the officer arrested and searched the defendant. Id. This court explained that the officer "had authority to conduct a warrantless search incident to arrest only if the arrest itself was lawful." Id. at 139. We explained that, under ORS 133.310(2), "a police officer receiving notice of an out-of-state warrant from the person named in the warrant, and not from a police officer, does not have authority to arrest the person" without first verifying the existence of the warrant. Id. We therefore concluded that, if the warrant was from out of state, until the officer verified its existence under ORS 133.310(2), the arrest ...