220
Argued and submitted August 23, 2019, reversed and remanded July 1, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
RUDOLPH VALENTINO MARTINEZ,
Defendant-Appellant.
Washington County Circuit Court
17CR54170; A166950
468 P3d 1021
Defendant appeals a conviction for one count of unlawful possession of methamphetamine, ORS 475.894, challenging the denial of his motion to suppress.
A police officer arrested defendant on a misdemeanor warrant and, incident to
arrest, searched his person for weapons and means of escape. An opaque white
plastic bag was protruding from defendant’s jacket pocket. The officer removed
the plastic bag, felt a “hard bulge” in the middle of it, and proceeded to unroll and
open it. The bag contained a piece of foil with heroin residue and a glass pipe with
methamphetamine residue. Before trial, defendant moved to suppress the evidence from the plastic bag, arguing that it was derived from an unlawful search
and seizure under Article I, section 9, of the Oregon Constitution. The trial court
denied the motion. On appeal, defendant challenges the denial of his motion, and
the state concedes that the trial court erred in failing to suppress the evidence
from the plastic bag. Held: The trial court erred in denying defendant’s motion to
suppress the evidence from the plastic bag.
Reversed and remanded.
Eric Butterfield, Judge.
Matthew Blythe, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Adam Holbrook, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Reversed and remanded.
Cite as 305 Or App 220 (2020) 221
AOYAGI, J.
Defendant was convicted of one count of unlawful
possession of methamphetamine, ORS 475.894. On appeal,
he challenges the trial court’s denial of his motion to suppress evidence that he alleges was procured through an
unreasonable seizure and search of his person in violation
of Article I, section 9, of the Oregon Constitution. Defendant
first argues that he was unlawfully stopped by the police,
such that all evidence derived from the encounter should
be suppressed. We reject that argument, because we agree
with the state that defendant was not stopped, and do not
discuss it further. Alternatively, defendant argues that, even
if the initial encounter was lawful, evidence found in a bag
in his jacket pocket should be suppressed as the product of
an unlawful search. The state concedes error on that point,
and we accept the concession as well-taken. Accordingly, we
reverse and remand.1
FACTS
“Determination of the legality of searches and seizures depends largely on the facts of each case.” State v. Ehly,
317 Or 66, 74,
854 P2d 421 (1993). “Our function is to decide
whether the trial court applied legal principles correctly to
those facts.”
Id. In reviewing the denial of a motion to suppress, we are bound by the trial court’s findings of historical
fact if there is constitutionally sufficient evidence to support
them.
Id. at 75. “If findings of historical fact are not made on
all pertinent issues and there is evidence from which such
facts could be decided more than one way, we will presume
that the facts were decided in a manner consistent with the
court’s ultimate conclusion.”
Id. We state the facts in accordance with the foregoing standard, limiting our discussion
to the facts relevant to the seizure of the bag from defendant’s jacket pocket.
Officer Powers encountered defendant while on
patrol and determined that he had an active warrant for
his arrest on a misdemeanor. (By the time of trial, Powers
1
Given our reversal of defendant’s conviction, we do not reach defendant’s
other three assignments of error, which challenge three special conditions of his
probation.
222 State v. Martinez
could not recall what the misdemeanor was.) Incident to
arrest, Powers searched defendant’s person for “weapons
and means of escape.” In doing so, he found an opaque white
plastic bag—apparently akin to a white kitchen garbage
bag—“protruding” from defendant’s front jacket pocket.
Powers could feel a “hard bulge” in the middle of the bag
as he removed it from defendant’s pocket, and he saw that
the bag was “kind of crumpled up.” Powers unrolled the bag,
revealing a piece of foil with heroin residue on it and a glass
pipe with methamphetamine residue on it.
Defendant was subsequently charged with unlawful possession of methamphetamine. Before trial, as relevant here, he moved to suppress the evidence found in the
bag that had been in his jacket pocket. The state opposed
the motion, and the trial court denied it without stating its
reasoning. Defendant proceeded to trial. A jury found him
guilty, and he was convicted. On appeal, defendant contends
that the trial court erred in denying his motion to suppress.
ANALYSIS
Article I, section 9, protects people against unreasonable searches and seizures. Warrantless searches are
per se unreasonable, unless the state establishes the applicability of an exception to the warrant requirement. State
v. Bonilla, 358 Or 475, 480,
366 P3d 331 (2015). Under one
such exception, a police officer may conduct a warrantless
search incident to arrest “(1) to protect a police officer’s
safety; (2) to prevent the destruction of evidence; or (3) to
discover evidence of the crime of arrest.” State v. Delfino,
281 Or App 725, 727,
386 P3d 133 (2016), rev den,
361 Or 525
(2017) (internal quotation marks omitted) (further stating
that “a search incident to arrest must be reasonable in time,
scope, and intensity”).
Powers therefore was permitted, incident to arresting defendant, to search defendant’s person for weapons—
which was the purpose of Powers’ search, according to his
own testimony—for officer safety purposes. The difficulty for
the state is that Powers did not identify any safety concern
related to the bag in defendant’s jacket pocket, so as to justify
unrolling the bag to examine its contents. (Nor did Powers
Cite as 305 Or App 220 (2020) 223
have any reason to believe that the bag contained evidence.)
The state concedes that, under existing case law, the evidence found in the bag therefore must be suppressed—and
we agree. See State v. Coop,
293 Or App 108, 109,
422 P3d
429 (2018) (trial court erred in denying motion to suppress
where, during a search incident to arrest, an officer reached
into the defendant’s pocket to retrieve a pocket knife, felt
something else that was hard and about the size of a AAA
battery, and pulled it out to see what it was; the officer never
testified that he believed the item to be a weapon); State
v. Musalf,
280 Or App 142, 159,
380 P3d 1087 (2016) (trial
court erred in denying motion to suppress, because the mere
fact that an item in the defendant’s pocket felt “hard” was
insufficient to justify removing and inspecting it as part of
an officer-safety search). The state also concedes that the
error was not harmless, and we agree on that point as well.
The trial court therefore erred in denying defendant’s motion to suppress as it pertained to the evidence
from the bag in defendant’s jacket pocket, and defendant is
entitled to a new trial in which that evidence is suppressed.
Reversed and remanded.
