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In re D.C.

Court of Appeals of Oregon

March 18, 2015

In the Matter of D. C., a Youth.
v.
D. C., Appellant STATE OF OREGON, Petitioner-Respondent,

Argued and Submitted October 28, 2014.

Malheur County Circuit Court 8628J. Petition Number 8628J02. J. Burdette Pratt, Judge.

Christa Obold-Eshleman argued the cause and filed the briefs for appellant.

Pamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 563

[269 Or.App. 870] TOOKEY, J.

Youth appeals a juvenile court judgment finding him within the jurisdiction of the court for committing acts, which, if committed by an adult, would constitute burglary in the first degree, ORS 164.225,[1] and theft in the second degree, ORS 164.045.[2] He assigns

Page 564

error to the court's denial of his motion to suppress evidence that was discovered during a search of his backpack incident to his arrest, arguing that that search was unlawful because the arresting officers lacked subjective and objective probable cause to believe that he had committed a crime. We write to address only youth's contention that the officers lacked objective probable cause to believe that he had committed a crime, review for legal error,[3] and affirm. See State v. Mitchele, 240 Or.App. 86, 88, 251 P.3d 760 (2010) (" We review the denial of a motion to suppress for legal error and defer to the trial court's findings of historical fact if there is sufficient evidence to support them." ).

The following factual summary is based upon the facts that were presented to the juvenile court at the suppression hearing. See State v. Pitt, 352 Or. 566, 575, 293 P.3d 1002 (2012) (" If a party rests his or her argument on appeal on a trial court's pretrial order declining to exclude certain evidence, we ordinarily will evaluate that argument in light of the record made before the trial court when it issued the [269 Or.App. 871] order, not the trial record as it may have developed at some later point." ). The police were called to investigate a residential burglary involving the theft of an Xbox. Three officers reported to the victim's residence: Toll, Harnden, and Ballou. Ballou was a patrol officer and school resource officer who knew youth because he had " dealt with him in the past" regarding in-school discipline issues.

Toll asked the victim if he knew who may have taken the Xbox, and the victim, who knew youth, identified youth by name. The victim suspected youth because he had " seen him by his house during that time when [the crime] could have occurred[.]" The victim gave the officers a description of youth, stating that youth was wearing a blue jacket, black pants, black shoes, and a backpack. The victim also pointed to youth's house, which was two or three blocks away. Toll and Harnden went looking " for a subject matching the description that [the victim] gave [them]." Ballou " went looking for the suspect that he [knew] as [youth]."

Only a " short *** time" after the call came in to the police to investigate the residential burglary, and approximately 10 minutes after the officers had interviewed the victim, Ballou saw youth walking down a sidewalk " a block to two blocks" from the victim's house. The victim's description of youth was " consistent with what [youth] was wearing." Ballou contacted Toll and Harnden, who parked a half block away from youth and began walking toward him. Ballou pulled his vehicle over near the curb, alongside youth.

Youth was wearing " an average size backpack" that could " reasonably contain a[n] Xbox console." As Ballou was pulling over alongside youth, youth took off the backpack, dropped it behind him near a fence, and took " a step or two away" from it. Ballou got out of his ...


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