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State v. Heater

Court of Appeals of Oregon

May 29, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT MERLE HEATER, Defendant-Appellant

Argued and Submitted February 19, 2014

Yamhill County Circuit Court. CR100587. Carroll J. Tichenor, Judge.

Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.[*]

OPINION

Page 715

[263 Or.App. 300] GARRETT, J.

Defendant was convicted of one count of unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant moved to suppress evidence obtained from a warrantless search of the car he was driving. After the trial court denied defendant's motion, defendant entered a conditional guilty plea, reserving his right to appeal the trial court's ruling on his motion to suppress. For the reasons that follow, we conclude that the trial court erred in denying defendant's motion to suppress. We reverse and remand.

BACKGROUND

On the morning of October 10, 2010, defendant was visiting his grandmother at an assisted living facility in McMinnville. Defendant was returning home to Vancouver, Washington, after an overnight trip to the Oregon Coast. Police received a report from an unidentified caller of a disturbance at the facility. Officers High and Frick were dispatched to the scene with information of a possible domestic disturbance involving defendant and a woman, Lewis. According to the caller, Lewis appeared to be under the influence of drugs. The dispatcher also reported a description of a car parked at the scene that possibly belonged to defendant.

Page 716

High observed a car matching the dispatcher's description parked in front of one of the residence units. He knocked on the front door of the unit, and defendant answered and came outside voluntarily. Frick approached Lewis, who was also outside, several hundred yards away.

In response to questions from High, defendant sad that he and Lewis were visiting defendant's grandmother. Defendant also said that he and Lewis had had an argument about money but not a physical confrontation. Defendant exhibited physical characteristics--specifically, erratic speech, erratic movements, and an overall demeanor--that suggested prolonged substance abuse.[1]

[263 Or.App. 301] High asked defendant whether he had any illegal drugs in his possession. Defendant replied that he did not. High then asked for consent to search defendant's car, and defendant consented. High told defendant that defendant's consent could be revoked at any time. During his search, High found baggies containing what he suspected was (and was later confirmed to be) methamphetamine. When he told defendant that he had found the baggies, defendant revoked his consent, and High stopped the search. High told defendant that he would likely seize the vehicle and seek a search warrant. Defendant again consented to a search, including searches of individual ...


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