Multnomah County Circuit Court, No. 111034516 Christopher J. Marshall, Judge. On appellant's petition for reconsideration filed July 3, 2014, respondent's response to petition for reconsideration filed July 24, 2014, and appellant's reply to respondent's response to petition for reconsideration filed July 31, 2014. Opinion filed June 18, 2014. 263 Or.App. 683, 328 P.3d 824 .
Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, for petition.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jennifer S. Lloyd, Attorney-in-Charge, for response.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[265 Or.App. 744] GARRETT, J.
Defendant has petitioned for reconsideration of our decision in State v. Lambert, 263 Or.App. 683, 328 P.3d 824 (2014). We held that the trial court erroneously denied defendant's motion to suppress " all evidence discovered pursuant to the warrantless and unlawful 'seizure' of his vehicle." Id. at 689. The trial court relied on the " administrative seizure" exception to the warrant requirement, but we concluded that the state had failed to demonstrate the applicability of that exception. Rather than reverse defendant's convictions outright, however, we concluded that the proper disposition of defendant's convictions on Counts 2 and 3 was to vacate and remand so that the trial court could consider whether the disputed evidence was " actually obtained" from the unlawful seizure. Id. at 699. In his petition for reconsideration, defendant argues that that disposition was incorrect because we should have decided that question of law on the existing record. For the reasons that follow, we agree with defendant and modify our opinion accordingly.
The relevant facts are taken from our opinion in Lambert, 263 Or.App. at 685-89. That case involved two different break-ins at a facility owned by the Portland Water Bureau (PWB). The facility is enclosed by a chain-link fence and is adjacent to " a piece of publicly accessible property that includes a nature path, a boat launch, and a parking area." Id. at 685.
The first break-in occurred in August 2011. A hole, which was large enough to drive a car through, was cut into the perimeter fence. Police discovered a " '4x4' decal, which appeared to have become detached from a vehicle, lying on the ground near the hole in the fence." Id. at 686. During the August break-in, numerous items were taken from the property, including a " pH pen," which is a small handheld device used to measure the pH of water. Id. at 686 n 1.
The second break-in occurred on the night of October 14, 2011. During that break-in,
" PWB security observed a vehicle parked just outside the PWB site, on the adjacent public property, near the perimeter fence. They also observed an unknown person moving inside one of the tents. Portland police responded to [265 Or.App. 745] the scene. The vehicle, a Jeep Grand Cherokee, appeared to have been driven through the parking lot for the boat launch and onto a grassy area so that it was concealed behind a row of trees. Police also found that the lock on the PWB facility gate had been cut. Police observed defendant walk into one of the tents and eventually approach the fence. Defendant was arrested."
Id. at 686-87. After the arrest, defendant's vehicle was towed to the police impound lot, " a secure facility where police send cars 'as a matter of course.'" Id. at 687. Police " put a 'hold' on the vehicle, which served the purpose of notifying the police bureau's burglary task force so that they would 'eventually look at the vehicle.'" Id. at 687-88 (brackets in original).
Four days after defendant's vehicle was towed, Officer Lobaugh, a member of the burglary task force, " took the 4x4 decal to the vehicle impound lot. Upon examining the exterior of defendant's Jeep, Lobaugh discovered that it appeared to be missing a decal, and that the decal from the scene ...