Submitted May 29, 2014
Multnomah County Circuit Court, 130242199. Cheryl A. Albrecht, Judge.
Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[265 Or.App. 533] LAGESEN, J.
This case requires us to resolve a conflict in our decisions regarding the permissible scope and intensity under Article I, section 9, of the Oregon Constitution of a search of a vehicle incident to a lawful arrest for driving under the influence of intoxicants (DUII) in violation of ORS 813.010. In
State v. Brody, 69 Or.App. 469, 473, 686 P.2d 451 (1984), we held that a " full search of the passenger compartment of a vehicle and the closed containers in it" exceeded the permissible scope and intensity of a search incident to a lawful arrest for DUII. We did so based on our conclusion that DUII is " only" a traffic offense. Id.
[265 Or.App. 534] By contrast, without explicitly overruling Brody, in State v. Burgholzer, 185 Or.App. 254, 59 P.3d 582 (2002); State v. Crampton, 176 Or.App. 62, 31 P.3d 430 (2001), overruled in part on other grounds by State v. Caldwell, 187 Or.App. 720, 69 P.3d 830 (2003), rev den, 336 Or. 376, 84 P.3d 1080 (2004); and State v. Augard, 122 Or.App. 485, 858 P.2d 463 (1993), we held, without regard to the fact that DUII is a traffic offense, that an officer may search a glove compartment and other closed compartments or containers in the passenger compartment of a vehicle incident to a lawful arrest of the driver for DUII, provided that evidence of DUII reasonably could be concealed in the parts of the car that the officer searched.
We conclude that the rule of law articulated by our later cases is correct, in the light of the Supreme Court's post- Brody decision in State v. Owens, 302 Or. 196, 729 P.2d 524 (1986). Accordingly, we overrule Brody to the extent that it held that the scope and intensity of a permissible search incident to arrest turns on whether or not the offense of arrest is a traffic offense. Applying the rule of law established by Owens, Burgholzer, Crampton, and Augard, we conclude that the search incident to arrest that led to the discovery of defendant's firearm complied with Article I, section 9. Accordingly, the trial court properly denied defendant's motion to suppress, and we affirm defendant's conviction and sentence.
Defendant was a passenger in a car stopped by Officer Turnage after Turnage observed the driver, Moullet, make an illegal turn. After making contact with the car, Turnage " smell[ed] a strong odor of alcoholic beverage coming out of the car" and observed that Moullet " had bloodshot, watery eyes, fumbling hand movements, [and] was showing some indication of impairment." Moullet told Turnage that he had taken a Percocet nine and one-half hours earlier, that he had used marijuana four and one-half hours earlier, and that he had also consumed two beers and " a couple of shots" of alcohol sometime ...