Argued and Submitted October 28, 2014
Yamhill County Circuit Court. CR110615. John L. Collins, Judge.
Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Attorney-in-Charge, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[268 Or.App. 402] DEVORE, J.
Defendant appeals a judgment of conviction for unlawful delivery of marijuana for consideration, ORS 475.860. Defendant assigns error to the trial court's denial of his motion to suppress evidence, arguing that the search was unlawful under Article I, section 9, of the Oregon Constitution, because the automobile exception did not apply to a warrantless search of his car. We review for legal error. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993); State v. Getzelman, 178 Or.App. 591, 595, 39 P.3d 195, rev den, 334 Or. 289, 49 P.3d 798 (2002). We reverse and remand.
Police responded to a suspicious-person call at a bank. When the officers arrived, they found defendant walking toward his Dodge Neon parked in the parking lot behind the bank. Before defendant reached his car, Officer Fair approached him, attempting to " [make] some conversation with him" and asking " if he was okay, if everything went okay in the bank." Defendant's speech was initially incomprehensible. He admitted that he had smoked methamphetamine earlier in the day and that it would not be safe for him to drive. Defendant consented to a search of his person, but the search did not reveal any evidence other than " a lot of cash." He refused to consent to a search of his car.
The officers suggested that defendant walk home and return for his car later. Defendant appeared to do so.
After defendant left, the officers walked around his car and looked through the windows. Fair saw a duffel bag from which a baggie containing marijuana protruded. With a limited view, Fair thought that the baggie contained " maybe less than an ounce." Fair told the bank's manager to call him if defendant returned and attempted to drive. About that time, defendant reappeared at the bank and asked the bank manager to drive the car for him. The manager declined, and defendant appeared to depart again on foot.
Just before the officers left the parking lot, defendant emerged from behind the building accompanied by another man. Fair saw defendant hand his keys to the man. [268 Or.App. 403] Because it appeared that defendant was trying to leave, Fair approached the pair of men, holding out his hand, and procured defendant's keys. Fair asked defendant about the marijuana in his car. Defendant admitted that there was " at least" half of a pound. Fair opened the car door using the keys, looked through the duffel bag, and pulled out four gallon-sized baggies of marijuana. When weighed, the baggies totaled 402 grams.
Officers searched the car and the duffel bag and discovered drug-related evidence. They found a box containing a small methamphetamine pipe, some methamphetamine, two joints, and a small plastic baggie containing methamphetamine residue. They also found bank statements from Oregon and California and other " numerous papers that appeared to be drug-related with phone numbers and amounts of marijuana purchased, and ready for purchase."  Defendant was charged with unlawful delivery of marijuana and unlawful possession of methamphetamine.
At a motion to suppress hearing, defendant argued that the automobile exception did not apply to his case and that the evidence in his car should be ...