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State v. Smith

Court of Appeals of Oregon

June 13, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DARRELL SHAWN SMITH, Defendant-Appellant.

          Argued and submitted January 30, 2017

          Multnomah County Circuit Court 14CR32834; John A. Wittmayer, Judge.

          Lindsey Burrows, 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.

          Keith Kutler, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for one count of unlawful possession of cocaine. In his sole assignment of error, defendant contends that the trial court erred by denying his motion to suppress evidence discovered as a result of a purportedly unlawful arrest of defendant by a police officer who, according to defendant, lacked probable cause to believe that defendant had violated the conditions of his probation and that the trial court applied an incorrect legal standard, viz., "reasonable grounds, " to determine the lawfulness of defendant's arrest. Held: The trial court erred in denying defendant's suppression motion on the basis that it did. The appropriate standard to justify a warrantless arrest of a probationer that is not based on an arrest order issued under ORS 144.350(1)(a) by someone authorized to issue such an order is probable cause.

         Reversed and remanded.

         [292 Or.App. 336] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for one count of unlawful possession of cocaine. In his sole assignment of error, defendant contends that the trial court erred by denying his motion to suppress evidence obtained as a result of a purportedly unlawful arrest of defendant by a police officer who, according to defendant, lacked probable cause to believe that defendant had violated the conditions of his probation. We conclude that the trial court erred in denying defendant's motion to suppress because the court applied an incorrect legal standard to determine the lawfulness of defendant's arrest. Accordingly, we reverse and remand.

         We review the denial of a defendant's motion to suppress evidence for legal error and are bound by the trial court's express factual findings if evidence in the record supports them. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). We recite the facts in accordance with that standard.

         Portland Police Officer Dauchy was on patrol in a patrol car in downtown Portland around 5:00 p.m. when he drove by defendant. Dauchy had had "multiple contacts" with defendant over the past several years, including casual encounters and arrests. Dauchy checked the Law Enforcement Data System (LEDS) to determine whether defendant had any outstanding warrants. LEDS indicated that, although defendant did not have any outstanding warrants, he was on probation and the conditions of that probation included "no entry into the D.I. [A.] or the Drug Impact Area" and "no association with drug users." Dauchy was aware that such no-entry conditions had exceptions for "proper travel" by foot, vehicle, or Tri-Met to visit social service providers and the probationer's home, attorney, or probation officer, and that there were many social service providers in the area in which Dauchy and defendant were located. Because the probation officers had already left work that evening, Dauchy called "re-cog down at the jail" to check whether defendant's probation officer had left any notes and whether defendant had been doing "what he's supposed to do and making his appointments." Dauchy was told that defendant had not checked in with his probation officer since his release from jail 11 days earlier.

         [292 Or.App. 337] At around 7:30 p.m., Dauchy saw defendant standing at a MAX station within the DIA, and Dauchy pulled his patrol car near defendant. Dauchy asked defendant to walk over to his patrol car so that he could call defendant's probation officer. Defendant responded by saying that he had not done anything wrong. Dauchy told defendant that he had violated his probation by "hanging around the D.I.A." and by failing to check in with his probation officer since his release from jail. Defendant responded, "No, " and began to walk away. Dauchy told defendant to stop and "walked up and placed [defendant] in handcuffs, " explaining that defendant would be detained until Dauchy had spoken with his probation officer. Dauchy then found physical evidence that led to defendant's charge of unlawful possession of cocaine.

         Defendant moved to suppress the physical evidence obtained as a result of his arrest. At the hearing, defendant testified that he was waiting for the MAX train when Dauchy approached him. Defendant explained that he had just gone to the Portland ...


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