and Submitted September 11, 2018
review from the Court of Appeals, (CC C141815CR) (CA A159939)
Belais, Deputy Public Defender, Office of Public Defense
Services, Salem, argued the case and filed the briefs for the
petitioner on review. Also on the briefs was Ernest G.
Lannet, Chief Defender.
R. Silk, Assistant Attorney General, Salem, argued the cause
and filed the brief for respondent on review. Also on the
brief were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Thoennes, Assistant General Counsel, and Jayme Hafner,
Assistant General Counsel, League of Oregon Cities, Salem,
filed the brief for amici curiae League of Oregon Cities and
City of Beaverton.
Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan,
Nelson and Garrett, Justices. [**]
Or. 683] Case Summary:
moved to suppress evidence derived from an arrest under
Beaverton's public drinking ordinance, arguing that the
ordinance was preempted by ORS 430.402(1)(b). The trial court
denied the motion and the Court of Appeals affirmed.
430.402(1)(b) preempts local ordinances that ban public
drinking selectively with respect to time and type of
alcohol, but does not prevent local governments from
prohibiting drinking in all public places; (2)
Beaverton's public drinking ordinance is not preempted.
decision of the Court of Appeals and the judgment of the
circuit court are affirmed.
Or. 684] BALMER, J.
case began with an arrest for public drinking, in violation
of the Beaverton City Code. That arrest led to a search, a
charge of drug possession, a denied motion to suppress, a
trial to the court, a conviction for unlawful possession of
methamphetamine, and an unsuccessful appeal. On review,
defendant directs our focus to the beginning of this chain of
events, the arrest. Beaverton prohibits drinking alcoholic
beverages in any public place. Beaverton Code (BC) 5.02.083.
Yet, ORS 430.402(1)(b), a state statute, prohibits Beaverton,
along with all other local governments, from regulating or
proscribing "[p]ublic drinking, except as to places
where any consumption of alcoholic beverages is generally
prohibited." Defendant argues that that statute preempts
Beaverton's public drinking ordinance, making his arrest
illegal and the fruits of that arrest subject to suppression.
The state, along with amid curiae the City of
Beaverton and the League of Oregon Cities, argues that it
falls within ORS 430.402(1)(b)'s exception, and it is
therefore not preempted. We hold that Beaverton's public
drinking ordinance is not preempted by ORS 430.402(1)(b) and
affirm defendant's conviction.
pertinent facts are not in dispute. In August 2014, a
Beaverton police officer responded to a call from a Plaid
Pantry employee, reporting people drinking in the store's
parking lot. When the officer arrived, he observed defendant
and two other men drinking beer next to a van. The officer
saw defendant put his beer into the van. Another officer
arrived, and the two officers obtained consent to search the
van. The search turned up four open beer bottles. Defendant
was arrested for violating Beaverton's prohibition on
the officers inventoried defendant's property. He
discovered a small quantity of methamphetamine in
defendant's wallet. Defendant was charged with unlawful
possession of methamphetamine, ORS 475.894. He moved to
suppress the evidence discovered during the inventory on the
grounds that it was the product of an unlawful arrest.
Defendant argued that the arrest was invalid because BC
5.02.083, the municipal ordinance under which [364 Or. 685]
he had been arrested, is preempted by a state statute, ORS
5.02.083 provides, "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
Commission or by subsection B of this section." In turn,
"public place" is defined by BC 5.02.010 as
"[a] place to which the general public has access and
includes, but is not limited to, hallways, lobbies and other
parts of apartment houses and hotels not constituting rooms
or apartments designed for actual residence and highways,
streets, schools, places of amusement, parks, playgrounds,
and premises used in connection with public passenger
"(1) A political subdivision in this state shall not
adopt or enforce any local law or regulation that makes any
of the following an offense, a violation or the subject of
criminal or civil penalties or sanctions of any kind:
"(a) Public intoxication.
"(b) Public drinking, except as to places where any
consumption of alcoholic beverages is generally
"(c) Drunk and disorderly conduct.
"(d) Vagrancy or other behavior that includes as one of
its elements either drinking alcoholic beverages or using
cannabis or controlled substances in public, being an
alcoholic or a drug-dependent person, or being found in
specified places under the influence of alcohol, cannabis or
"(e) Using or being under the influence of cannabis or
Or. 686] The trial court denied defendant's motion,
reasoning that BC 5.02.083 is not preempted because it falls
within the exception in ORS 430.402(1)(b). Defendant waived
his right to a jury trial and was convicted by the court
after a trial on stipulated facts.
appealed, assigning error to the denial of his motion to
suppress and renewing the argument that he made in the trial
court. The state ...