and submitted April 5, 2017, Tillamook High School,
County Circuit Court C141815CR; Rick Knapp, Judge.
E. Melichar, Deputy Public Defender, argued the cause for
appellant. With her on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Contreras, Assistant Attorney General, argued the cause for
respondent. On the brief were Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Cecil A.
Reniche-Smith, Assistant Attorney General.
K. Haium and Sean O'Day fled the brief amicus curiae for
City of Beaverton and League of Oregon Cities.
Armstrong, Presiding Judge, and Shorr, Judge, and Wilson,
appeals from a judgment of conviction for unlawful possession
of methamphetamine, ORS 475.894. On appeal, defendant assigns
error to the trial court's denial of his motion to
suppress evidence that police off-cers obtained when they
arrested defendant for drinking alcohol in a public place, in
violation of Beaverton City Code ordinance (BCC) 5.02.083.
Defendant contends that the arrest was unlawful because BCC
5.02.083 is preempted by state law, ORS 430.402.
Alternatively, defendant argues that the city may not
establish a criminal penalty for violation of BCC 5.02.083
because it imposes a greater punishment than does ORS
811.170, Oregon's "open container" law, for
what defendant contends is substantially similar conduct.
trial court did not err when it denied defendant's motion
to suppress. First, BCC 5.02.083 does not confict with [287
Or.App. 215] ORS 430.402 in a way that preempts BCC 5.02.083
so as to make it unconstitutional under Article XI, section
2, of the Oregon Constitution. Second, the conduct regulated
in ORS 811.170 and BCC 5.02.083 is not similar in nature
because it is different both in specifcs and in essence.
Accordingly, the maximum punishment for a violation of ORS
811.170 does not control the permissible maximum punishment
for a violation of BCC 5.02.083.
Or.App. 216] WILSON, S. J.
appeals a judgment of conviction for unlawful possession of
methamphetamine, ORS 475.894. He raises a single assignment
of error on appeal, arguing that the trial court erred when
it denied his motion to suppress evidence that police
officers obtained following defendant's arrest for
violating a Beaverton city ordinance that prohibits drinking
alcohol in a "public place, " as defined in
Beaverton City Code (BCC) 5.02.083. Defendant asserts that
his arrest, and the subsequent inventory of his wallet, was
unlawful because state law-specifically ORS 430.402-preempts
BCC 5.02.083. Therefore, according to defendant, the Oregon
Constitution requires suppression of any evidence obtained as
a result of the arrest. In the alternative, defendant argues
that the city may not establish a criminal penalty for a
violation of that ordinance because BCC 5.02.083 imposes a
greater punishment than the state imposes for substantially
similar conduct under Oregon's "open container"
law, ORS 811.170. In response, the state contends that ORS
430.402 specifically permits the type of ordinance that the
city adopted. Further, the state argues that ORS 811.170 and
BCC 5.02.083 are different in specifics and in essence. We
agree with the state and, accordingly, affirm.
state the facts consistently with the trial court's
explicit and implicit factual findings, which the record
supports. See State v. Suppah. 358 Or. 565, 567 n 1,
369 P.3d 1108 (2016) (applying that standard in reviewing
denial of suppression motion). On August 6, 2014, Beaverton
police officer Coplin responded to a Plaid Pantry store to
investigate a report of people drinking in the parking lot.
Upon arriving, Coplin saw three men standing around a car and
a van drinking beer. As he approached the men, Coplin saw
defendant place a bottle of beer inside the van. A second
officer arrived as backup, and Coplin received consent from
the men to search the vehicles and found four open beer
bottles. Coplin placed all three men under arrest for
violating BCC 5.02.083(A), which prohibits consumption of
alcohol in public places, and states, in relevant part,
[287 Or.App. 217] "No person shall consume alcoholic
liquor or possess an open container of an alcoholic beverage
while in or upon any public place, unless authorized by the
[Oregon Liquor Control] Commission or by subsection B of this
inventory of defendant's wallet at the Beaverton police
station revealed methamphetamine.
state charged defendant by information with unlawful
possession of methamphetamine, ORS 475.894. Defendant filed a
pretrial motion to suppress the evidence, pursuant to Article
I, section 9, of the Oregon Constitution, on the grounds that
his arrest was unlawful and that the evidence derived from
his illegal seizure must be suppressed.In his motion,
defendant argued that BCC 5.02.083, which provided probable
cause for his ...