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State v. George

Court of Appeals of Oregon

August 23, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
LEWIS SPENCER GEORGE, Defendant-Appellant.

          Argued and Submitted June 21, 2016

         Wasco County Circuit Court 1200327CR; Janet L. Stauffer, Judge.

          Anna Melichar, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Susan G. Howe, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant appeals a judgment of conviction for one count of delivery of marijuana for no consideration. In his sole assignment of error, defendant challenges the trial court's denial of his motion to suppress, which was based upon its determination that the search of the car in which defendant was a passenger was justified under the automobile exception to the warrant requirement and therefore did not violate Article I, section 9, of the Oregon Constitution. Defendant challenges whether a warrantless search of an automobile is permitted under the automobile exception when the suspected criminal activity that formed the basis of an officer's stop no longer exists at the time of the automobile search, which is based on probable cause for a different offense.

         Held: Under the pertinent case law, the automobile exception continues to supply the per se exigency necessary to conduct a warrantless search of the vehicle that was mobile when stopped so long as the officer has probable cause to believe that the vehicle contains evidence of a crime or contraband, even where that probable cause is unrelated to the reason for initially stopping the vehicle.

         Affirmed.

         [287 Or. 313] ORTEGA, P. J.

         Defendant appeals a judgment of conviction for one count of delivery of marijuana for no consideration, ORS 475.860(2)(b). In his sole assignment of error, defendant challenges the trial court's denial of his motion to suppress, which was based upon its determination that the search of the car in which defendant was a passenger was justified under the automobile exception to the warrant requirement, see State v. Brown, 301 Or. 268, 274, 721 P.2d 1357 (1986) (announcing exception), and therefore did not violate Article I, section 9, of the Oregon Constitution. Defendant challenges whether a warrantless search of an automobile is permitted under the automobile exception when the suspected criminal activity that formed the basis of an officer's stop no longer exists at the time of the automobile search, which is based on probable cause for a different offense. We conclude that the search in this case comports with Oregon law regarding the automobile exception, and therefore affirm.

         We review defendant's motion to suppress for legal error and state the facts consistently with the trial court's factual findings and its decision denying defendant's motion to suppress. See State v. Bliss, 283 Or.App. 833, 837, rev allowed, 361 Or. 543 (2017); State v. Juarez-Godinez, 326 Or. 1, 3, 942 P.2d 772 (1997).

         Trooper Jubitz was dispatched to Celilo Village, a community of 12 to 15 residences, to provide backup to officers investigating a reported assault, and was told to look for a woman wearing a purple jacket. Jubitz arrived at the village and shortly thereafter saw a tan station wagon pass by him that was driven by a woman fitting the description he had been given. Defendant, whom Jubitz recognized, was sitting in the passenger seat. Believing that the driver was the suspect he was looking for, Jubitz ran across the street and up a driveway to where the car had pulled into a carport. He saw defendant get out and distance himself from the car. Jubitz approached the driver's side, quickly recognized the driver, Frank, and determined that she was not the suspect he was looking for. However, while he was speaking to her, he noticed an open beer can lying on the passenger seat, which is a traffic violation under ORS 811.170. Jubitz did not [287 Or. 314] detect an odor of alcohol on Frank; however, when he spoke with defendant, he did detect the smell of alcohol. Jubitz informed defendant that he intended to remove the open beer can and, when Jubitz opened the passenger-side door, he was "hit with an overwhelming odor of green marijuana." Jubitz noticed a small blue duffel bag on the floorboard and picked it up. The bag smelled of marijuana, and he opened it enough to see that it contained more than an ounce of marijuana. Defendant asserted that Jubitz needed a search warrant and that his search was illegal. Jubitz arrested defendant.

         Defendant filed a written motion to suppress any statements that he had made and all evidence seized from him and the car on the grounds that the warrantless search of the car violated his state and federal constitutional rights. The bulk of defendant's written motion concerned arguments that he was unlawfully stopped and had not consented to the search. However, anticipating that the state would argue that the automobile exception applied to the warrantless search of the car, defendant cited Brown, the Supreme Court case recognizing the exception, and argued that the exception did not apply because the car was parked when Jubitz first encountered it and that, "[m]ore importantly, the trooper immediately knew that the driver was not the suspect of the crime he was investigating, and [therefore] * * * had no valid basis to arrest[d]efendant." At the suppression hearing, the state asserted that the automobile exception applied because the car was mobile when Jubitz contacted it and that the trooper then had probable cause to investigate an open container violation.

         Defendant replied by reiterating that he never consented to the search and that he had demanded that Jubitz ...


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