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State v. Uroza-Zuniga

Supreme Court of Oregon

April 18, 2019

STATE OF OREGON, Respondent on Review,
v.
VICTOR UROZA-ZUNIGA Petitioner on Review.

          Argued and Submitted September 11, 2018

          On review from the Court of Appeals, (CC C141815CR) (CA A159939) [*]

          Anna 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.

          Jordon 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.

          Philip 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.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson and Garrett, Justices. [**]

         [364 Or. 683] Case Summary:

         Defendant 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.

         Held:

         (1) ORS 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.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

         [364 Or. 684] BALMER, J.

         This 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.

         The 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 public drinking.

         One of 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 430.402.[1]

         BC 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 transportation."[2]

         ORS 430.402 provides,

"(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 prohibited.
"(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 controlled substances.
"(e) Using or being under the influence of cannabis or controlled substances."

(Emphasis added.)

         [364 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.

         Defendant appealed, assigning error to the denial of his motion to suppress and renewing the argument that he made in the trial court. The state ...


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