State v. Dennis

                                  584

Submitted November 23, 2020; conviction on Count 3 reversed and remanded,
       remanded for resentencing, otherwise affirmed March 3, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                  SAMUEL WYATT DENNIS,
                      Defendant-Appellant.
                   Linn County Circuit Court
                     18CR81225; A170278
                               

  David E. Delsman, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John Evans, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge, and
Aoyagi, Judge.
  PER CURIAM
   Conviction on Count 3 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 

 (2021)                                              585

           PER CURIAM
         Defendant appeals a judgment of conviction for multiple crimes. We write mainly to address his challenge to his
conviction for unlawful possession of methamphetamine,
ORS 475.894 (Count 3).1 After a 57-mile vehicle pursuit of
defendant by law enforcement officers, a sheriff’s deputy
searched defendant’s car and discovered in the car’s central
console a methamphetamine pipe with methamphetamine
residue. Before defendant’s trial, defendant moved to suppress the pipe evidence, which was relevant only to Count 3,
on the basis that it was discovered unlawfully without a
warrant. Or Const, Art I, § 9. The trial court denied the
motion to suppress on two grounds: (1) because the deputy
had probable cause to believe that defendant had committed
attempt to elude and that evidence of defendant’s identity
could be inside the car, the search was authorized under
the automobile exception, see State v. McCarthy, 

, 

, rev allowed, 

 (2020) (under
State v. Brown, 

, 

 (1986), and other
cases, so long as the automobile is mobile and officers have
probable cause to search the vehicle, the state does not
need to show any particular exigency under the facts of the
encounter, nor establish that a telephonic warrant was not
available); and (2) because the deputy acted in accordance
with the county’s inventory policy, the search was permitted by the inventory exception to the warrant requirement,
see State v. Krumenaker, 

, 

(2020) (an inventory of the contents of an impounded vehicle
is permitted if three requirements are met).
          On appeal, defendant contends that neither ground
justifies the search of his car. The state concedes that defendant is correct, acknowledging that (1) with respect to probable cause to search the vehicle, defendant’s identification
was neither evidence of failure to present a driver’s license,

    1
      We reject defendant’s second of assignment of error without written discussion. As to defendant’s third assignment of error—that the trial court erred in
instructing the jury that it need not arrive at unanimous guilty verdicts—that
argument is foreclosed by State v. Dilallo, 

, 

 (2020) (holding that, where defendant did not preserve a nonunanimous-jury argument and
the jury was not polled, it was not appropriate to exercise discretion to review
jury-instruction assignment as plain error).
586                                            State v. Dennis

see State v. Banks, 

, 

(1990) (explaining that “[e]vidence of identity is not an element of the offense of failure to present a driver’s license”),
nor evidence of attempting to elude a police officer; and
(2) the state did not rely on the inventory exception at the
suppression hearing, offer a copy of the inventory policy into
evidence, or offer other evidence sufficient to establish two of
the three requirements of the inventory exception. Because
we agree and accept the state’s concession, we reverse and
remand Count 3.
       Conviction on Count 3 reversed and remanded;
remanded for resentencing; otherwise affirmed.