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State v. Wright

Court of Appeals of Oregon

September 17, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
KEVIN ANTHONY WRIGHT, Defendant-Appellant

Submitted on Remand July 10, 2014

Marion County Circuit Court. 07C51533. On remand from the Oregon Supreme Court, State v. Wright, 355 Or. 567, 329 P.3d 770 (2014) . Mary Mertens James, Judge.

Peter Gartlan, Chief Defender, and Irene B. Taylor, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the answering brief for respondent. On the supplemental brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the supplemental brief.

Before Wollheim, Presiding Judge, and Sercombe, Judge, and Schuman, Senior Judge.

OPINION

Page 871

[265 Or.App. 481] WOLLHEIM, P. J.

This case is before us for the third time, on remand from the Oregon Supreme Court. In our initial opinion, issued per curiam, we reversed and remanded defendant's conviction for failure to register as a sex offender on the ground that the trial court should have granted defendant's motion to suppress, based on our decision in State v. Anderson, 231 Or.App. 198, 217 P.3d 1133 (2009), adh'd to on recons, 234 Or.App. 420, 228 P.3d 638 (2010), rev'd, 354 Or. 440, 313 P.3d 1113 (2013). State v. Wright, 233 Or.App. 471, 225 P.3d 149 (2010). The Supreme Court vacated our initial decision and remanded the case to us for reconsideration in light of State v. Ashbaugh, 349 Or. 297, 244 P.3d 360 (2010). State v. Wright, 349 Or. 663, 249 P.3d 1281 (2011). On remand, we again concluded that defendant's motion to suppress should have been granted. State v. Wright, 244 Or.App. 586, 260 P.3d 755 (2011). The Supreme Court has again remanded the case to us, State v. Wright, 355 Or. 567, 329 P.3d 770 (2014), to reconsider it in light of State v. Backstrand, 354 Or. 392, 313 P.3d 1084 (2013), State v. Highley, 354 Or. 459, 313 P.3d 1068 (2013), and State v. Anderson, 354 Or. 440, 313 P.3d 1113 (2013). For the reasons set forth below, we now affirm defendant's conviction.

We set forth the facts as recited in our previous opinion:

" One night in October 2007, police officers arrested defendant's friend in an apartment. The friend asked an officer to let defendant know he had been arrested. Defendant and his sister were sleeping in a car in the apartment complex parking lot. The officer approached defendant's car and, as reported, found defendant and his sister sleeping in the car. The officer asked who they were and asked for identification. Defendant gave the officer his Oregon ID card.
" When the officer radioed defendant's name in to dispatch, he learned that defendant was a registered sex offender. The officer returned to the car and asked defendant why he was sleeping in the car; defendant responded that he was transient.

Page 872

The officer asked defendant if he was living in his car instead of the address where he was registered as a sex offender, and defendant replied that he was [265 Or.App. 482] living in his car and had not registered a new address. The officer asked defendant if he knew he had to register even if he did not have a specific address, and defendant admitted that he did. The officer arrested defendant for failure to register as a sex offender."

Wright, 244 Or.App. at 588. Defendant moved to suppress, arguing that he had been unlawfully stopped when the officer took his identification. Our initial reversal was based on our decision, State v. Anderson, 231 Or.App. 198, 203, 217 P.3d 1133 (2009), in which we had held that a defendant had been stopped when officers requested his identification, and in which we had applied a " subjective" test to determine that the defendant had been stopped. Id. at 203. In our second opinion, we acknowledged that the " subjective" approach to the issue had been disavowed in Ashbaugh, but nonetheless concluded that under an objective standard, defendant had been stopped when the officer " asked for identification, and immediately radioed dispatch to determine ...


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