Submitted Remand February 24, 2015.
CR100587. Yamhill County Circuit Court. On remand from the Oregon Supreme Court, State v. Heater, 356 Or. 574, 342 P.3d 87 (2014) . Carroll J. Tichenor, Judge.
Peter Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Ernest G. Lannett, Chief Defender, Criminal Appellate Section, and Lindsey Burrows, Deputy Public Defender, Office of Public Defense Services, filed the supplemental brief.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the answering brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Senior Assistant Attorney General, filed the supplemental brief.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[271 Or.App. 540] GARRETT, J.
This case is before us on remand from the Supreme Court, which vacated our prior decision, State v. Heater, 263 Or.App. 298, 328 P.3d 714, vac'd and rem'd, 356 Or. 574, 342 P.3d 87 (2014) ( Heater I ), and ordered reconsideration following a trio of recent decisions: State v. Unger, 356 Or. 59, 333 P.3d 1009 (2014); State v. Musser, 356 Or. 148, 335 P.3d 814 (2014); and State v. Lorenzo, 356 Or. 134, 335 P.3d 821 (2014). In Heater I, we reversed and remanded defendant's conviction for possession of methamphetamine, ORS 475.894, because the trial court erred in denying defendant's motion to suppress evidence that derived from an unlawful seizure. After our decision, the Supreme Court issued Unger, Musser, and Lorenzo, which revised the analytical framework for deciding whether a person's voluntary consent to a search derived from a preceding police illegality. The state contends that, under that new framework, we should conclude that defendant's consent to being searched was not the product of police " exploitation" of the unlawful seizure. Defendant counters that the state is, in effect, urging a basis for affirmance that was never argued below and that we should not consider for the first time on appeal. As explained below, we agree with defendant that, if the state had made the argument at trial that it makes now, the record might have developed differently in a manner that could affect the disposition of the case. Accordingly, we adhere to our decision in Heater I reversing the judgment and remanding for a new trial.
We recite the facts and pertinent procedural history from Heater I :
" On the morning of October 10, 2010, defendant was visiting his grandmother at an assisted living facility in McMinnville. Defendant was returning home to Vancouver, Washington, after an overnight trip to the Oregon Coast. Police received a report from an unidentified caller of a disturbance at the facility. Officers High and Frick were dispatched to the scene with information of a possible domestic disturbance involving defendant and a woman, Lewis. According to the caller, Lewis appeared to be under the influence of drugs. The dispatcher also reported a description of a car parked at the scene that possibly belonged to defendant.
[271 Or.App. 541] " High observed a car matching the dispatcher's description parked in front of one of the residence units. He knocked on the front door of the unit, and defendant answered and came outside voluntarily. Frick approached Lewis, who was also outside, several hundred yards away.
" In response to questions from High, defendant said that he and Lewis were visiting defendant's grandmother. Defendant also said that he and Lewis had had an argument about money but not a physical confrontation. Defendant exhibited physical characteristics--specifically, erratic speech, erratic movements, and an overall demeanor--that suggested prolonged substance abuse.
" High asked defendant whether he had any illegal drugs in his possession. Defendant replied that he did not. High then asked for consent to search defendant's car, and defendant consented. High told defendant that defendant's consent could be revoked at any time. During his search, High found baggies containing what he suspected was (and was later confirmed to be) methamphetamine. When he told defendant that he had found the baggies, defendant revoked his consent, and High stopped the search. High told defendant that he would likely seize the vehicle and seek a search warrant. Defendant again consented to a search, including searches of individual bags and ...