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State v. Mejia

Court of Appeals of Oregon

July 26, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
MIGUEL BRAVO MEJIA, Defendant-Appellant.

          Argued and Submitted February 18, 2016

         Klamath County Circuit Court 1101275CR; Cameron F. Wogan, Judge.

          Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, Garrett, Judge, and Duncan, Judge pro tempore. [*]

         [287 Or.App. 18] Case Summary:

         Defendant appeals a judgment of conviction for unlawful delivery of marijuana for consideration and unlawful possession of marijuana. He assigns error to the denial of his motion to suppress evidence that the police discovered following a traffic stop. Among other contentions, he argues that the trial court should have suppressed evidence that was the product of a warrantless search of his person, because the state failed to prove any exception to the warrant requirement. The state argues that defendant's contention regarding the search of his person was not preserved, because, although defendant raised that contention in his written motion to suppress, he did not reiterate his argument during the suppression hearing or take issue with the trial court's failure to explicitly address it.

         Held:

         The trial court erred in denying defendant's motion to suppress. Defendant's written memorandum sufficiently apprised the court and the state of defendant's challenge to the lawfulness of the search of his person under State v. Walker, 350 Or 540, 258 P.3d 1228 (2011). On the merits, the state did not offer any justification for the warrantless search of defendant's person. Because it is the state's burden to prove an exception to the warrant requirement, the court erred in denying the motion to suppress the evidence that was the product of the warrantless search.

         Reversed and remanded.

         [287 Or.App. 19] DEVORE, P. J.

         Defendant appeals a judgment of conviction for unlawful delivery of marijuana for consideration and unlawful possession of marijuana. He assigns error to the denial of his motion to suppress evidence that the police discovered following a traffic stop. Among other contentions, he argues that the trial court should have suppressed evidence that was the product of a warrantless search of his person, because the state failed to prove any exception to the warrant requirement. The state, in response, does not offer any justification for the warrantless search; rather, the state argues that defendant's contention regarding the search of his person was not preserved, because, although defendant raised that contention in his written motion to suppress, he did not reiterate his argument during the suppression hearing or take issue with the trial court's failure to explicitly address it. As we will explain, the state's preservation argument is unavailing under State v. Walker, 350 Or. 540, 258 P.3d 1228 (2011). Accordingly, we proceed to the merits of defendant's argument and conclude that the trial court erred in denying his motion to suppress.

         An officer stopped the car that defendant was riding in for crossing the center line twice and leaving its headlights on high beam when another car approached and passed. The officer had also used his spotlight to look into the rear of the car and observed that defendant was not wearing his seatbelt, a failure constituting a traffic violation. ORS 811.210. During the stop, the officer initiated a records check using defendant's identification card and the driver's license. While the records check was occurring, the officer spoke with defendant and the driver separately, asking questions about their trip and, in defendant's case, his history of drug related convictions, which he denied.[1] The officer received information from dispatch that defendant had an extensive criminal history including drug offenses, contradicting defendant's earlier statements. At that point, the officer believed that he had probable cause, but at a minimum, reasonable suspicion of criminal activity, as well as [287 Or.App. 20] a suspicion that his safety might be in jeopardy. The officer handcuffed defendant and advised him of his Miranda rights, which defendant said he understood. Next, the officer searched defendant and removed a cell phone and a Walmart receipt for space bags, which the officer knew could be used for packaging drugs.[2] The officer placed defendant in the back of his patrol car. After both the driver and defendant denied consent to search the car, the officer called another officer with a police dog. The dog positively reacted to the odor of the car. The officer proceeded to search the car, discovering 27 bags of marijuana.

         Defendant moved to suppress evidence discovered as a result of the officer's search of his person and the car he was riding in. In his motion, defendant argued, among other things, that the officer safety exception to the warrant requirement did not justify handcuffing him and the search of ...


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