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State v. Durando

Court of Appeals of Oregon

April 16, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
CHARLES EDWARD DURANDO, III, Defendant-Appellant

Submitted: November 26, 2013.

Page 986

Beaverton Municipal Court. UC7594911, UI7594921. Les Rink, Judge pro tempore.

Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

OPINION

Page 987

[262 Or.App. 301] HADLOCK, J.

Defendant appeals a judgment of conviction for one count of failure to carry or present a license and one count of unlawful possession of less than one ounce of marijuana. In his first assignment of error, defendant argues that the trial court erred when it denied his motion to suppress a small bag of marijuana and an expired driver's license located during a search following his arrest for failure to present a license. The state acknowledges that the search was unlawful under Article I, section 9, of the Oregon Constitution and that the trial court should have suppressed the challenged evidence. Although the state concedes that the error requires reversal of defendant's conviction for marijuana possession, the state contends that the error was harmless as to the conviction for failure to present a license. As explained below, we agree with the state on both of those points. In his second assignment of error, defendant argues that the trial court erred when it excluded one of his proffered exhibits, which defendant claimed was a printout from the Washington State Department of Licensing website showing that defendant had a valid driver's license at the time of the stop. We reject that argument for the reasons set out below. Accordingly, we reverse defendant's conviction for unlawful possession of marijuana and otherwise affirm.

The pertinent facts are undisputed. During a June 26, 2011, traffic stop, Beaverton Police Officer McNair asked defendant for his driver's license, registration, and proof of insurance. Defendant gave McNair a paper copy of an expired State of Washington temporary driver's license, which the officer described at trial:

" [McNAIR]: He eventually pulled out a piece of paper which ended up being an expired temporary Washington permit. It was expired, you know, over -- at least a month prior to the date of the stop. It was a -- a very worn -- it had wear marks all through the picture, and that was the only thing he presented.
" [PROSECUTOR]: Okay. So, the license was not valid on June 26th, 2011?
" [McNAIR]: No. The card that he presented me had expired in May."

[262 Or.App. 302] McNair arrested defendant for failure to present a driver's license and took him into custody. McNair searched defendant's person, purportedly incident to the arrest, and found a small bag of marijuana in defendant's pocket along with " an actual hard copy of a Washington license that was also expired, that had been hole-punched." McNair cited defendant for failure to carry or present a license under ORS 807.570 and for possession of less than an ounce of marijuana under ORS 475.864.

Defendant, who appeared pro se, moved before trial to suppress the evidence from McNair's search, arguing that he had been unlawfully searched under both the state and federal constitutions. The trial court denied defendant's motion, finding that McNair properly searched defendant incident to arrest.

Page 988

At trial, the state called McNair as its only witness, and he testified as described above. Defendant also presented a case, which was primarily directed to the defense that is described in ORS 807.570(3). That is, defendant attempted to establish that he had been a validly licensed driver on the date of the traffic stop even though he had not presented a license during the stop.[1] Defendant testified that he had applied for a Washington driver's license and was issued a series of temporary licenses, evidently as proof of licensure while the permanent " hard copy" of the license was being processed and mailed to defendant. He went on to explain that he had multiple temporary licenses because he had not received the permanent license as expected (defendant speculated that it had been lost in the mail or stolen [262 Or.App. 303] from his mailbox) and had needed to request a new copy of his license on several occasions.

Defendant introduced five Washington driver's licenses into evidence, including three expired temporary licenses, the expired, hole-punched license that he had moved to suppress at trial, and a non-expired, permanent " hard copy" license that was valid on the date of trial. Each temporary license listed the dates on which it was issued and expired, along with the license expiration date. Defendant asserted that he had " been a licensed driver during the entire thing," pointing out that even though the three temporary licenses and the non-expired, permanent license had different issue dates, they all shared the same license expiration date in May 2015. Defendant's argument appears to have been that the shared 2015 expiration date confirmed that he was validly licensed to drive on the date of the stop, even if the temporary license was expired. However, defendant was not able to produce a permanent or temporary license that had been valid on the date of the stop; the permanent license was issued after the stop and the three temporary licenses either expired before the stop or were issued after the stop.

In closing argument, the state emphasized that it had proven that defendant had failed to present a valid license to McNair during the traffic stop and asserted that defendant had " failed to show at any time, including today, that he had a valid license on" June 26, 2011. In defendant's closing argument, he again directed the jury to the defense in ORS 807.570(3) and argued that he had been licensed to drive at the time of the stop and that he merely had not received his current license in the mail. The jury found defendant guilty of the license offense and the court found defendant guilty of unlawful possession of marijuana.

In his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress. Defendant argues, and the state concedes, that McNair's search of defendant's pockets, purportedly as incident to defendant's arrest, was unlawful under Article I, section 9, of the Oregon Constitution. For the reasons that follow, we accept the state's concession.

[262 Or.App. 304] " Under Article I, section 9, there are three valid justifications for a search incident to lawful arrest: to protect the officer's safety, to prevent the destruction of evidence, and to discover evidence relevant to the crime for which the defendant was arrested." State v. ...


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