Submitted April 26, 2017
County Circuit Court C112623CR, C140104CR; Janelle F. Wipper,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erik Blumenthal, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Peenesh Shah, Assistant Attorney General, fled
the brief for respondent.
DeHoog, Presiding Judge, and Hadlock, Chief Judge, and
Sercombe, Senior Judge.
Summary: In this criminal case, defendant challenges the
trial court's decision to strike his motion to suppress.
The court struck defendant's motion on the ground that it
failed to adequately apprise the court as to the issues and,
therefore, failed to comply with Uniform Trial Court Rule
(UTCR) 4.060(1). On appeal, defendant asserts that the trial
court erred in striking the motion because (1) the motion
satisfied UTCR 4.060(1), and (2) a defendant is not required
to allege specific facts and arguments when contesting
whether a warrant less search violates Article I, section 9,
of the Oregon Constitution. Held: Under the
circumstances, the trial court erred in striking
defendant's motion for failure to comply with UTCR
4.060(1). Defendant's motion cited authority on which
defendant relied, apprised the court and the state that
defendant challenged specific searches and seizures, laid out
the evidence that defendant sought to have suppressed, and
set forth defendant's position that the searches and
seizures had been warrant less and, therefore, per se
unreasonable. Defendant was entitled to have his suppression
motion considered on its merits.
Or.App. 581] SERCOMBE, S. J.
consolidated criminal case, defendant challenges the trial
court's decision to strike his motion to suppress and its
subsequent entry of judgments revoking his probation and
convicting him of felon in possession of a firearm, ORS
166.270, unlawful manufacture of a destructive device, ORS
166.384, and unlawful possession of methamphetamine, ORS
475.894. The trial court struck defendant's motion to
suppress on the ground that the motion failed to
"adequately appris[e] the Court as to what the issues
are, " and, therefore, failed to comply with Uniform
Trial Court Rule (UTCR) 4.060(1). On appeal, defendant
contends that the court erred in striking the motion because
"(1) defendant's motion satisfied UTCR 4.060(1), and
(2) a defendant is not required to allege specific facts and
arguments when contesting whether a warrantless search
violates Article I, section 9, of the Oregon
Constitution." As explained below, we reverse and remand
the judgments of the trial court in this case.
was arrested and indicted for, among other things, felon in
possession of a firearm, unlawful manufacture of a
destructive device, and unlawful possession of
methamphetamine. He had previously been convicted of felon in
possession, and was on probation for that conviction at the
time of his arrest. Defendant filed a pretrial motion to
suppress evidence. In his motion to suppress, defendant
moved, pursuant to Article I, section 9, for an order
suppressing "the stop and seizure of the defendant,
search of defendant's residence and personal room, and
the seizure of any and all evidence obtained as a result
therefrom, including the firearms and explosive device, and
all oral derivative [287 Or.App. 582] evidence." Citing
State v. Miller, 269 Or. 328, 334, 524 P.2d 1399
(1974), he asserted that he had been subject to a warrantless
search and seizure, which was "per se unreasonable,
" and the "state has the burden of proving
otherwise." Also relying on Miller, defendant
further stated that he was "not required to allege any
additional facts in a motion to suppress."
brief in support of his motion to suppress, defendant
discussed UTCR 4.060, Miller, and related cases at
length. It was his position that his motion complied with the
rule and that, in view of the rule and applicable case law,
"the burden of production shifts to the state upon a
claim that the search was warrantless, and the
defendant's motion must be granted unless and until the
state produces evidence and argument to overcome the per se
unreasonable search against which the defendant has
pretrial scheduling hearing, defendant's counsel
discussed scheduling for the suppression motion. The
following exchange ensued:
"THE COURT: Is this one of those motions where you
didn't file the affidavit, all that stuff? Didn't
comply with the [U]TCRs?
"[COUNSEL]: It's hard to say I believe I am
complying with [U]TCR.
"THE COURT: So this is one of those motions. I think
your answer to my question is, yes, it is one of those. I
just want to make sure, so I get a good idea of which judge I
need to send it to * * * to make sure it's dismissed
without even being heard[.]"
later hearing relating to the motion to suppress, the court
observed that the state had not moved to strike and it
appeared that the state did not intend to file such a motion.
However, the court, on its own motion, struck defendant's
motion, stating that, "as far as the Court is concerned,
what you filed in this case is not sufficient."
as noted, defendant was convicted of felon in possession,
unlawful manufacture of a destructive device, and unlawful
possession of methamphetamine. In [287 Or.App. 583] addition,
the court revoked defendant's probation on his existing
felon-in-possession conviction, based on the finding that
defendant had "violated the terms and conditions of his
probation by committing new crimes (in [the consolidated
case, ] C140104CR)."
appeal, defendant asserts that the court erred in striking
the motion to suppress. We review the trial court's
ruling in this case for legal error. See State v.
Roth, 235 Or.App. 441, 449, 234 P.3d 1019 (2010).
"All motions to suppress evidence:
"(a) must cite any constitutional provision, statute,
rule, case, or other authority upon which it is based; and
"(b) must include in the motion document the moving
party's brief, which must sufficiently apprise the court
and the adverse party of the arguments relied upon."
noted, defendant asserts that his motion satisfied the
requirements of that rule and was "sufficient under
Miller and this court's decisions." The
state responds that the motion was insufficient to frame the
issues in the case. We conclude that defendant has the better
argument: The motion satisfied the requirements of the UTCR
and was sufficient to require shifting the burden to the
state to demonstrate the legality of the warrantless search.
begin by observing that, in our view, the requirements of
UTCR 4.060(1) are clear on their face. The motion must cite
the authority on which it is based and, along with the
accompanying brief, must "sufficiently apprise" the
court and the state of the "arguments" relied upon
by the moving party. The rule contains no requirement that a
suppression motion contain detailed factual arguments.
Instead, a motion that generally identifies a search or
seizure by the state, asserts that the search or seizure was
warrantless and, therefore, per se unreasonable
unless the state demonstrates otherwise, cites authority in
support of the motion, and requests suppression of evidence