Argued and Submitted: December 20, 2013.
Washington County Circuit Court. C072951CR. Thomas W. Kohl, Judge.
Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael R. Salvas, Assistant Attorney General, argued the cause for respondent. On the brief were Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General.
Before Ortega, Presiding Judge, and DeVore, Judge, and De Muniz, Senior Judge.
[265 Or.App. 656] ORTEGA, P. J.
Defendant challenges his conviction for possession of a controlled substance, arguing that the trial court erred in denying his motion to suppress. The case is before us on appeal for the second time. In the first appeal, State v. Gonzales, 236 Or.App. 391, 236 P.3d 834 ( Gonzales I ), adh'd to as modified on recons, 238 Or.App. 541, 243 P.3d 116 (2010) ( Gonzales II ), the trial court had denied defendant's suppression motion after concluding that a police officer was justified in impounding defendant's car and conducting an inventory search of the car under the " community-caretaking doctrine." On appeal, we determined that the trial court had
erred because the community-caretaking doctrine did not authorize the seizure of defendant's car. Gonzales I, 236 Or.App. at 402. Accordingly, we concluded that the evidence discovered in the inventory search should have been suppressed, and we reversed and remanded. However, on reconsideration, we modified our opinion to allow the state to raise alternative arguments on remand that it had not raised in the original suppression hearing. Gonzales II, 238 Or.App. at 545. On remand, the state argued that the " good-faith exception" to the exclusionary rule of the Fourth Amendment to the United States Constitution applied and that suppression was not required. The trial court agreed, and denied defendant's motion to suppress. Defendant appeals, contending that the officer reasonably should have known that impoundment of defendant's car was unconstitutional in the circumstances of this case and, thus, the trial court erred in determining that the good-faith exception applied. We agree with defendant, and reverse and remand.
We take the facts from our opinion in Gonzales I.
" In November 2007, Officer Blood of the Cornelius Police Department saw defendant commit a traffic violation and activated the overhead lights on his patrol car, signaling defendant to stop. Defendant continued to drive for two or three blocks and then pulled into his own driveway and stopped. He informed Blood that his driver's license was suspended and gave him an expired insurance card. ORS 809.720 and Cornelius City Code section 10.40.030 both provide that a police officer may impound a vehicle if the driver was driving while suspended or without insurance. [265 Or.App. 657] Blood decided to impound the car that defendant was driving and, in preparation for having it towed, conducted an inventory. He found defendant's wallet under one of the seats and, in the wallet, a small plastic bag containing cocaine. Defendant moved to suppress the evidence resulting from the inventory, arguing that Blood did not have authority to impound the vehicle and that the inventory was therefore unlawful. The trial court denied the motion and subsequently convicted defendant."
236 Or.App. at 393.
In Gonzales I, the parties argued, as they had in the trial court, about whether the community-caretaking exception to the Fourth Amendment's warrant requirement authorized the impoundment of defendant's car. Id. at 396. The state also 20 made two alternative arguments in the original appeal: (1) the exclusionary rule should not apply because the officer impounded the care in good-faith reliance on ORS 809.720 and Cornelius City Code (CCC) section 10.40.030 and (2) defendant had no possessory interest in the car, and thus could not benefit from the exclusionary rule. Id. We disposed of the state's alternative arguments first, concluding that we could not consider them because the state had raised those alternative grounds for the first time on appeal, and the record might have developed differently if the state had presented those arguments in the trial court. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001) (concluding that, if the question is not purely one of law, we will affirm a trial court decision on an alternative ground only if, among other requirements, " the record [is] materially * * * the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below" ).
As for the community-caretaking exception, we concluded, relying in part 6 on the Ninth Circuit Court of Appeals' reasoning in Miranda v. City of Cornelius, 429 F.3d 858 (9th Cir 2005), that, " under the circumstances of this case, community caretaking does not extend to impounding a car from the defendant's driveway." Gonzales I, 236 [265 Or.App. 658] Or.App. at 403. Accordingly, we stated that " [i]t follows that the warrantless seizure of the car was ...