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State v. Bennett

Court of Appeals of Oregon

September 10, 2014

STATE OF OREGON, Plaintiff-Appellant Cross-Respondent,
v.
ROBERT LEE BENNETT, Defendant-Respondent Cross-Appellant. STATE OF OREGON, Plaintiff-Appellant Cross-Respondent,
v.
DONAVON RAY MCCALL, Defendant-Respondent Cross-Appellant

Argued and Submitted May 28, 2014

Page 144

Marion County Circuit Court, 12C41087, 12C41088, Claudia M. Burton, Judge.

On appeal, part of orders suppressing evidence found during the first search of the backpack reversed; otherwise affirmed; on cross-appeal, affirmed.

Tiffany Keast, Assistant Attorney General, argued the cause for appellant-crossrespondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Lindsey K. Detweiler, Deputy Public Defender, argued the cause for respondents-crossappellants. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

Page 145

[265 Or.App. 450] DEVORE, J.

This criminal case involves two codefendants, Bennett and McCall, and presents an appeal and cross-appeal of a pretrial ruling on their motion to suppress.[1] The state appeals the trial court's pretrial order partially granting defendants' motion to suppress; defendants cross-appeal the partial denial of that motion. At issue is evidence discovered during a search of McCall's car, a search of a backpack found in the car, and a subsequent search of that same backpack. The state contends that the automobile and officer safety exceptions to the warrant requirement allowed officers to search the car and justify both searches of the backpack. On cross-appeal, defendants argue that officers did not have probable cause to search the car or the backpack. We review for legal error, State v. Warner, 181 Or.App. 622, 624, 47 P.3d 497, rev den, 335 Or. 42, 57 P.3d 581 (2002). We conclude that the trial court erred in partially granting defendants' motion to suppress, because the automobile exception to the warrant requirement properly applied to the first search of the backpack.

The following facts are undisputed. An informant, or " cooperating defendant" from another case, identified Bennett as the source of her drugs and told officers that Bennett participated in a medical-marijuana grow operation run by his roommate, McCall. The informant suggested that she could get pills from McCall. Officers confirmed that both men held medical marijuana cards and that McCall's address was a registered marijuana grow site. Officer Miller set up a controlled buy of 3.3 grams of marijuana in December 2011, between Bennett and the informant.[2] In January 2012, Miller asked the informant to arrange another transaction for two ounces of marijuana in what would be a buy-bust operation. The police recorded the informant's phone conversation with Bennett as they [265 Or.App. 451] set up the deal. McCall could be heard in the background, directing the meeting time and place at a grocery store. The informant told Miller that there were guns at Bennett and McCall's residence, that McCall always carried a handgun, and that McCall was disabled and used a wheelchair. If McCall accompanied Bennett, the informant believed that McCall would be driving a Cadillac.

On January 20, the police arrived at the grocery store parking lot in unmarked vehicles for the buy-bust operation. An officer noticed a Cadillac moving, as it pulled into the lot. The car had a " handicap" tag on the rear-view mirror. The informant identified Bennett as he got out of the car and walked toward the store's garden center. McCall remained in the driver's seat. After confirming the occupants' identity, the officers initiated their arrests. An officer opened the driver's door, told McCall that he was under arrest, and grabbed McCall's arm. McCall broke the officer's grip and leaned away toward the center of the car. Threatening to use a Taser, officers forcibly removed McCall

Page 146

from the Cadillac, handcuffed him, got him into his wheelchair, and moved him to a place ...


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