State v. Lipka

                                      154

       Argued and submitted January 14, 2020, reversed and remanded
                            September 1, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     JOSHUA SCOTT LIPKA,
                     aka John Scott Lipka, Sr.,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       17CR82732; A167990
                                   

    In this criminal appeal, defendant challenges his convictions for felon in possession of a firearm, menacing, and harassment. On appeal, defendant argues
that the trial court erred by denying his motion to suppress evidence of a handgun and related statements obtained as a result of a warrantless search, and by
giving instruction allowing and then accepting a nonunanimous jury verdict for
the harassment charge. Held: Even assuming the police officers had probable
cause to arrest defendant for a domestic-violence offense, the record in this case
does not demonstrate that either of the arresting officers had a nonspeculative
basis for searching defendant’s bag for a handgun incident to arrest for menacing
or harassment, and the erroneous admission of that evidence was not harmless
as to those convictions. With respect to defendant’s harassment conviction, it was
error to instruct the jury that it could return a nonunanimous verdict and to
accept and enter a judgment of conviction based on such a verdict.
    Reversed and remanded.



    Karin Johana Immergut, Judge.
   Brett J. Allin, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief was Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    DeHOOG, J.
    Reversed and remanded.
Cite as 

 (2021)                                                155

           DeHOOG, J.
         In this criminal appeal, defendant challenges his
convictions for felon in possession of a firearm, menacing
constituting domestic violence, and harassment. Defendant
raises four assignments of error, asserting that the trial
court erred by (1) denying his motion to suppress evidence
of a gun and related statements obtained as a result of a
warrantless search; (2) denying his post-verdict motion
for a mistrial; (3) instructing the jury that it could return
nonunanimous verdicts, and (4) accepting a nonunanimous
verdict as to the harassment charge (Count 5). For the reasons that follow, we conclude that the trial court erred in
denying defendant’s motion to suppress, in instructing the
jury regarding nonunanimous verdicts, and in accepting the
jury’s nonunanimous verdict on Count 5. Collectively, those
errors were harmful as to each of defendant’s convictions.
Because our disposition as to those assignments of error
entitle defendant to a new trial on all counts, we need not
address whether the court abused its discretion in denying
defendant’s motion for a mistrial. We reverse and remand.1
                           I. BACKGROUND
A.    Standard of Review
         We review the denial of a motion to suppress for
legal error, deferring to the trial court’s express and implicit
findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Brownlee, 

, 

 (2020). If the trial court did
not make findings on a disputed issue of fact, and there is
evidence in the record to support divergent findings, we will
presume the trial court decided the facts consistently with
its ultimate conclusion. 

 Further, we review the denial of
a motion to suppress in light of the record before the trial
    1
      Similarly, we need not reach defendant’s argument that it was structural
and therefore harmful error for the trial court to incorrectly instruct the jury as
to the counts on which it reached unanimous verdicts. However, we note that our
recent case law appears to foreclose that argument. See, e.g., State v. Turay, 

, 

 (2021) (citing State v. Flores Ramos, 

,

 (2020) (nonunanimous jury instruction was not structural error);
State v. Ciraulo, 

, 

 (2020), cert den, ___ US ___, 

 (2021) (unanimous jury verdict rendered erroneous nonunanimous jury
instruction “harmless beyond a reasonable doubt”)).
156                                                           State v. Lipka

court at the time of its ruling, not the record as it later developed at trial. State v. Pitt, 

, 

(2012).
B.    Factual Background
          In December 2017, emergency dispatch received an
open-line 9-1-1 call associated with a house in Southeast
Portland.2 Portland Police Bureau patrol officers Ballew and
Adrian were dispatched to that location. Adrian arrived first
and stopped about a block and a half from the house to wait
for Ballew. Using the computer in his patrol car, Adrian confirmed that the phone number matched the address of the
house. The 9-1-1 dispatcher, who had remained on the open
line, informed Ballew and Adrian that a male and female
could be heard arguing on the call. Adrian’s computer
inquiry disclosed that the alleged victim in this case, D,
had reported several prior incidents involving her adult son
(later identified as defendant), who also lived at the house
and had multiple arrests on his record. Adrian was not able
to access defendant’s conviction record at that time, and he
could not tell whether the arrests were for misdemeanors or
felonies.
         Upon Ballew’s arrival, the officers approached the
home on foot. Ballew heard both male and female voices
from inside. Although the female voice was “pretty darn
calm,” the male voice was much more agitated and confrontational. Adrian characterized the voices he heard as a male
yelling and a female trying to calm him down.
        During a lull in the argument, the officers knocked
on the front door. Ballew heard the female tell the male to
open the door. Adrian told the male, whom Adrian believed
to be defendant, someone he had met before, to come to
the door. The female voice said, “Joshua, just let them in.”
According to Ballew, the male voice remained very agitated and said something like, “I’m telling you, if they lay
hands on me, I’m going to lay hands on them.” From what
Adrian could hear from outside, his impression was that
“[D] sounded scared. [Defendant] was really, really, really
    2
      An open-line 9-1-1 call is a type of call where the caller does not directly
speak to the emergency operator.
Cite as 

 (2021)                             157

upset.” Based on those impressions, Adrian requested “more
officers immediately” before entering the house.
        D ultimately told the officers the door was open and
invited them inside. Upon entering the living room area
of the house, the officers observed “overturned everything,
everywhere,” including a water dispenser that had been
knocked over. D was cleaning up puddles of water from the
toppled water dispenser.
        As the officers entered, defendant was standing in the kitchen adjacent to the living room. Defendant
then walked towards the door between the kitchen and
the attached garage, ignoring Adrian’s command to stop.
Adrian noted that defendant was carrying a tan bag.
         Ballew spoke with D. As they began to speak, D said
very quietly to Ballew, “you know, he’s got a gun. [In] [t]he
tan [bag], the one he picked up.” Adrian similarly heard D
say “he’s got a gun in that bag he is carrying.”
         By then, defendant had walked about 10 feet into
the garage, where he paced and shouted at Adrian from a
distance of 10 to 12 feet. Adrian observed that defendant
had placed the tan bag on a chair but remained within a
half step of the bag as the officers sought to control him
with verbal commands. In addition to the bag, Adrian noted
numerous other items in the garage—an axe, a baseball bat,
a weight set, and (sometime later) a makeshift spear—that
he believed might serve as weapons. Adrian gave defendant
several specific commands, telling him, “Josh, I expect you
to do everything I say. I don’t want to use any level of force
on you.” Adrian told defendant that he believed a gun was
involved somehow and asked him whether he was armed.
Defendant responded, “I’m always armed.” At that time,
defendant remained “very animated, agitated,” and he
repeatedly put his hands in his pockets despite being told
not to do so by Adrian.
        Defendant ultimately complied with the officers’
requests by taking two or three steps away from the chair
and towards the officers, who were then able to place him in
handcuffs. The officers patted defendant down for weapons,
and Ballew read him the Miranda warnings. The process of
158                                                           State v. Lipka

removing defendant from the garage and seating him in a
chair in the kitchen took the officers about 30 seconds.
         After defendant had been secured in the kitchen,
Ballew again spoke with D, who told Ballew, “he jabbed me
with something in the back, I don’t know what it was. It
could have been keys. And then another time he pinched
me in the back of the arm.” Ballew noted a bruise on D’s
arm. Ballew understood D to be saying that both the jabbing and pinching had occurred that day. Although D had
speculated that defendant had jabbed her with some keys,
Ballew believed that defendant might have done so with the
gun that D had mentioned. Ballew acknowledged, however,
that “[a]t no point did [D] say [defendant] used the gun today
to threaten her.”
          While Ballew spoke with D, Adrian searched the
bag that defendant had left on the chair in the garage,
“[b]ecause [D] had mentioned that there was a gun in there.
And we were looking at domestic violence investigation.” In
the bag, Adrian found a loaded, .22 caliber, semi-automatic
pistol. Adrian asked defendant about the gun. Defendant
acknowledged that he was a convicted felon and that he was
aware that he could not legally possess a gun, but said that
he carried the pistol for personal protection and had a holster for it in the waistband of the pants he was wearing.
        The officers gave somewhat differing explanations
for why they had handcuffed defendant. Ballew believed
that defendant had been handcuffed for officer-safety purposes. Ballew later developed subjective probable cause to
arrest defendant for assault based on D’s statements and
the injury to her arm.3 She acknowledged, however, that
she did not develop probable cause to arrest defendant until
    3
      Ballew’s testimony at the suppression hearing was not entirely clear regarding the relationship in time between defendant being handcuffed in the garage,
Ballew’s development of subjective probable cause to arrest defendant for assault,
and Adrian’s search of the bag. Ballew suggested that, based on the injury to D,
she had probable cause regarding assault “at the beginning.” However, Ballew’s
testimony also indicated that her discussion with D was interrupted by the statement about the gun in the bag, and that Ballew did not learn about and observe
the injury to D’s arm until after defendant had been handcuffed in the garage
and had been seated in the kitchen for at least some time. Ballew never stated
whether her subjective development of probable cause to arrest defendant for
assault occurred before or after the search of the bag.
Cite as 

 (2021)                             159

after she had spoken with D a second time, which she did
after defendant was handcuffed and seated in the kitchen.
Later still, clearly after Adrian had searched the bag, Ballew
developed subjective probable cause to arrest defendant for
felon in possession of a firearm.

         Adrian, on the other hand, testified that, at the time
defendant was first put in handcuffs, “we had definitely a
probable cause to believe that he had committed the crime
of at least harassment, if not menacing with a gun.” Adrian
based that assessment on the statements that D had made
about the gun, Adrian’s perception that D had described
defendant’s behavior towards her as “assaultive,” and defendant’s lack of compliance. Adrian also made an “educated
guess” that defendant “[was] probably going to have a felony
on his record.”

         Ballew’s and Adrian’s recollections as to the timing of events also differed. Ballew estimated that defendant had been handcuffed and seated in the kitchen close
to 10 minutes before Adrian searched the tan bag for a gun.
And Ballew’s estimate as to when she developed probable
cause to arrest defendant for felon in possession of a firearm
was closer to 20 minutes after he had been handcuffed, by
which time he had been removed from the kitchen. Adrian’s
timeline was far more condensed. He testified that he
had searched the bag “within a minute” of first handcuffing defendant and that defendant had been escorted to a
patrol car “perhaps one minute” after being moved from the
garage to the kitchen. Similarly to Ballew, however, Adrian
acknowledged that he did not have probable cause to arrest
defendant for felon in possession of a firearm until after he
had interviewed him, which Adrian did not do until after he
had searched the bag and discovered the gun.

C. Procedural Background

         Before trial, defendant moved to suppress all physical evidence and statements obtained as a result of his
seizure, including the gun that Adrian had found in the
bag and defendant’s related admissions. Defendant argued
that, because he had not been validly arrested pursuant to
160                                                            State v. Lipka

probable cause, any search incident to his arrest was unlawful. Defendant further argued that, even if the officers had
probable cause to arrest him for harassment or menacing,
Adrian’s search of the bag exceeded the lawful scope of a
search incident to arrest for either of those offenses, because
“menacing does not require a firearm … [n]or does harassment.” Finally, defendant argued that any exigency that
would otherwise have supported an officer-safety search
dissipated once the officers placed him in handcuffs and,
therefore, the search of the bag could not be justified on that
basis.
        The state responded that the officers had probable
cause to arrest defendant for felon in possession of a firearm
based on Adrian’s belief that defendant probably had a felony conviction due to his extensive arrest record; the state
further argued that Adrian’s discovery of the gun resulted
from a lawful search incident to arrest for that offense. The
state alternatively relied on the officer-safety exception,
arguing that, even though defendant had been reduced to
custody by the time Adrian searched the bag and discovered
the gun, “he [was] still in the kitchen, which [wasn’t] that
far away at the time the search occurred,” which presented
an “ongoing officer safety issue.”
         The trial court concluded that Adrian’s search of
the bag was justified both as an officer-safety search and as
a search incident to arrest. The court reasoned that, under
the circumstances—which included the 9-1-1 call, the condition of the house, the overheard argument, and defendant’s
statement that he was “always armed”—the officers could
lawfully detain defendant and “then do a protective search
in the immediate vicinity as part of public safety.” The trial
court separately concluded that, under the totality of the
circumstances, there was probable cause to arrest defendant and search the bag incident to that arrest. While the
trial court did not expressly identify the particular crime for
which the officers had probable cause,4 it specifically rejected
felon in possession of a firearm as a basis for defendant’s
    4
      The trial court stated that “at a minimum, with an allegation of harassment in the domestic violence context, that [the officers] were entitled to take him
into custody at that point.”
Cite as 

 (2021)                             161

arrest, stating that it did not “accept the argument that the
officer gets to guess about criminal history,” without which
the officers could not lawfully arrest defendant for that
offense. Nonetheless, based on its conclusion that the warrantless search of the bag was otherwise justified, the trial
court denied defendant’s motion to suppress.
         Following the denial of his motion to suppress,
defendant tried his case to a jury. The jury found defendant
guilty of felon in possession of a firearm, menacing, and
harassment, and acquitted him of two separate counts of
attempted coercion. The jury’s verdict was unanimous as to
the felon in possession and menacing charges, but not as to
the harassment charge, Count 5. This appeal followed.
                      II. ANALYSIS
A.   Motion to Suppress
         Article I, section 9, of the Oregon Constitution prohibits warrantless searches of “persons, houses, papers, and
effects” unless a search “falls within one of the few specifically established and carefully delineated exceptions to the
warrant requirement.” State v. Mazzola, 

,

 (2015). If a warrantless search occurs, the state
must show that circumstances existing at the time of the
search were sufficient to satisfy an exception. Brownlee, 

.
          Defendant’s argument on appeal largely tracks the
argument he made to the trial court. Specifically, defendant
argues that warrantless search leading to the discovery of
a gun was unlawful because (1) the officers lacked probable
cause to arrest him when Adrian placed him in handcuffs,
and any search incident to that arrest was therefore unlawful; (2) even if the arrest was supported by probable cause,
Adrian’s search exceeded the lawful scope of a search incident to arrest because, at the time of the search, the bag was
no longer in defendant’s immediate possession; and (3) to the
extent that the officers could otherwise lawfully search the
bag incident to defendant’s arrest, the search was nonetheless unlawful because there are “neither instrumentalities
162                                                           State v. Lipka

nor fruits” of the crimes of harassment or menacing for
which Adrian could search.5
         The state, on the other hand, takes a new tack on
appeal. Rather than contending that the search can be justified on officer-safety grounds, the state has now abandoned
that argument, reasoning that “the search was more clearly
valid as a search incident to arrest.” With respect to that
rationale, the state has shifted its focus from the offense
of felon in possession of a firearm and instead argues that
(1) there was probable cause to arrest defendant for a
domestic-violence crime, such as harassment or menacing;
(2) the bag was in defendant’s possession just before the
arrest and the search was “otherwise reasonable in time,
scope, and intensity[,]” and (3) Adrian had reason to believe
that the gun was evidence of the crime of menacing.
          We turn to those arguments. “A warrantless search
incident to arrest can be made for any of three purposes:
(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. Krause, 

, 

 (2016), rev den, 

 (2017). The first two
justifications rely on inherent exigencies—human safety
and preventing destruction of evidence—that may dissipate
once an arrestee is removed from the immediate area to be
searched. 

 The third justification, however, is not wholly
dependent upon such exigencies; thus, a search incident to
arrest for the purpose of discovering evidence of the crime of
arrest may reasonably be conducted at times and locations
somewhat more distant than the first two purposes would
justify. 

 Regardless of the purpose, a search incident to
arrest “must be reasonable in scope, time, and intensity,”
and the search must relate to a crime for which there is
probable cause for arrest. Brownlee, 

. If
     5
       Defendant also challenges the trial court’s alternative rationale that the
search could be upheld as an officer-safety search, contending that any officer-safety concerns had dissipated by the time of the search. The state does not
defend that rationale on appeal. In the absence of any developed argument as to
why the gun—which was in the garage while defendant was in the kitchen, handcuffed, seated, and controlled by at least two officers—presented an imminent
threat to anyone’s safety, we are not persuaded that the officer-safety exception
to the warrant requirement applied here. Accordingly, we reject that basis for the
trial court’s ruling without further discussion.
Cite as 

 (2021)                                                  163

a search conducted incident to arrest is otherwise reasonable in scope, time, and intensity, an officer may search a
closed bag if the bag reasonably could contain evidence of
the crime of arrest. Krause, 

.
         Here, the state relies on the third justification for
searches incident to arrest—the discovery of evidence of the
crime of arrest.6 Defendant responds that, for three reasons,
that rationale does not apply. According to defendant, (1) the
arrest itself was unlawful because it was not supported by
probable cause; (2) the bag was not in defendant’s immediate
control; and (3) Adrian did not search the bag for evidence
related to the crime of arrest. Defendant argues that each of
those reasons is sufficient to render Adrian’s search unlawful. As explained below, we agree with defendant that, to the
extent that Adrian may have had probable cause to arrest
defendant for any offense, his search of the bag was not
reasonably related to that offense. That implicates the first
and third of defendant’s arguments. Because we conclude
that the trial court erred on that basis, we need not reach
defendant’s second argument, namely, that the bag was not
sufficiently within his control to fall within the lawful scope
of a search incident to arrest. See Brownlee, 

 (relevant inquiry is not whether arrestee was holding or
carrying item at the exact moment of arrest, but “whether
the item or area searched was immediately associated with
the arrestee at that time” (emphasis in original)).
         We begin with defendant’s argument that the officers lacked probable cause to arrest him for any offense. “A
warrantless arrest is permissible under Article I, section 9,
of the Oregon Constitution if the arresting officer has probable cause to believe that the person has committed a crime.”
State v. Sanchez-Anderson, 

, 

 (2019). “Probable cause has two aspects: (1) the officer
    6
      The freestanding officer-safety exception articulated in State v. Bates, 

, 

 (1987), and the officer-safety justification for searches incident to arrest are functionally equivalent. See State v. Hoskinson, 

, 

 (1994). Given the state’s decision not to defend the trial court’s
reliance on a freestanding officer-safety rationale, we do not understand the state
to rely on the corresponding justification for searches incident to arrest, and we
do not consider that rationale further. Similarly, the state does not contend that
the search was reasonably necessary to prevent the destruction of evidence, and
we likewise do not consider that possibility.
164                                                           State v. Lipka

must subjectively believe that a crime has been committed, and (2) that belief must be objectively reasonable under
the totality of the circumstances.” State v. Gibson, 

, 

 (2015). Defendant does not dispute that Adrian had at least subjective probable cause
to make an arrest; rather, defendant claims that Adrian’s
subjective probable-cause determination was objectively
unreasonable.7
          The facts relevant to the objective probable-cause
prong are those that the arresting officer knew at the time
of the arrest. 

 In considering whether objective probable
cause exists, we consider the totality of the circumstances
presented to the officer, together with the reasonable inferences that may be drawn from them. State v. Sinkey, 

, 

 (2020). Moreover, the facts that
the officer perceived, either personally or as relayed to the
officer, must in fact satisfy the elements of a crime. See, e.g.,
State v. Tiffin, 

, 

 (2005) (facts,
as perceived by officer, must actually constitute a violation
for officer’s belief that violation has been committed to be
objectively reasonable).
          That is not to say that an officer must know exactly
what law has been violated or how the facts relate to certain
elements of the crime. Indeed, probable cause may be based
on a mistake of fact or a mistake as to precisely “which law
the defendant violated.” State v. Boatright, 

, 

, rev den, 

 (2008) (emphasis in
original). What matters is whether the facts that the officer perceives “establish the elements of an offense, even if
not the offense that the officer believed the defendant committed.” Id. (emphasis in original); see also State v. Miller,

, 

 (2008) (“the officer’s expressed
reason for making an arrest does not control a court’s determination of that arrest’s legality”); State v. Cloman, 

, 

 (1969) (“We hold that if the officers had
probable cause to arrest, the arrest made is not rendered
illegal because the officers expressed another and improper
cause for arrest.”).
    7
      The state does not argue that Ballew’s subjective probable cause to arrest
defendant for assault was objectively reasonable. We therefore do not further consider that purported justification for defendant’s arrest and the ensuing search.
Cite as 

 (2021)                                               165

          Additionally, to support probable cause, an officer
need only perceive facts sufficient to establish the essential
elements of a statutory violation, not necessarily facts with
respect to every element, attendant circumstance, or culpable mental state required to ultimately convict a person
of the crime. Boatright, 

 (whether the
defendant knowingly violated ORS 803.550 was not material
to determination of objective probable cause, even if state
arguably would be required to prove knowledge to obtain a
conviction); see also Gibson, 

 (officer had
probable cause to arrest for unauthorized use of a vehicle
even though it was not clear whether the defendant was the
driver or the passenger of the stolen vehicle). However, when
the facts an officer perceives do not meet the essential elements of the violation, probable cause is lacking. See Sinkey,

 (holding that the officer did not have sufficient information to make it more likely than not that the
driver was physically or mentally impaired, an essential
element of DUII); State v. Keller, 

,

 (2016) (absence of facts indicating that defendant was in actual or constructive possession of heroin, an
essential element of possession charge, precluded finding of
objective probable cause to arrest for that offense).
         Here, as noted, the state contends that Adrian had
probable cause to arrest defendant for a domestic-violence
crime, such as harassment or menacing, and that Adrian
had reason to believe that the gun in the tan bag was evidence of the crime of menacing. As potentially relevant here,
a person commits the crime of harassment when the person
intentionally harasses or annoys another person by subjecting the other person to “offensive physical contact.” ORS
166.065(1)(a)(A).8 To be convicted of menacing, defendant
would have had to “intentionally attempt to place [D] in fear
of imminent serious physical injury by words and conduct.”
See ORS 163.190. Thus to constitute probable cause, there
must have been information from which an officer could
conclude that defendant more likely than not had either

    8
      ORS 166.065, the statute defining harassment has been amended several
times since the alleged crime in ways that are not material to our analysis. See
Or Laws 2017, ch 430, § 1; Or Laws 2019, ch 304, § 3. For convenience, we refer to
the present version of the statute.
166                                                            State v. Lipka

(1) intentionally harassed or annoyed D by subjecting her to
offensive physical contact, or (2) intentionally attempted to
place D in fear of imminent serious physical injury.
         For purposes of discussion, we agree with the state,
that, under the totality of the circumstances, it was objectively reasonable for Adrian to conclude that some form of
“assaultive” conduct had occurred during the argument.9
Given the open-line 9-1-1 call in which the dispatcher could
overhear an argument, D’s apparent unwillingness to communicate aloud with the dispatcher, Adrian’s own perception
of the verbal confrontation, and D’s report to Ballew that
defendant had jabbed her with something and pinched her
arm, causing visible bruising, Adrian could at a minimum
    9
      As a general matter, we understand “assaultive conduct” to encompass conduct that, under appropriate circumstances, might constitute either harassment
or menacing. With respect to harassment,
         “The act of striking another can be one of four different crimes depending
    upon the circumstances. The crime of harassment, ORS 166.065, a Class B
    misdemeanor, covers ‘trivial slaps, shoves, kicks, etc.’ State v. Sallinger, 

, 

 (1972), quoting from Commentary, Proposed
    Oregon Criminal Code 93. Third degree assault, ORS 163.165, a Class A misdemeanor, covers causing ‘physical injury to another.’ The draftsmen state
    that third degree assault is ‘the basic offense,’ which can be aggravated to
    a greater offense by the ‘seriousness of the injury actually inflicted’ or the
    ‘dangerousness of the means employed … to inflict injury.’ Commentary,
    Proposed Oregon Criminal Code 93. Thus, second degree assault, ORS
    163.175, a Class C felony, covers causing serious physical injury or causing
    any physical injury ‘by means of a deadly or dangerous weapon.’ (The most
    serious offense, first degree assault, ORS 163.185, a Class B felony, is not
    germane for present purposes.)”
State v. Wier, 

, 

 (1975) (omissions and parentheses in original). With respect to menacing,
    “At early common law, assault encompassed two separate concepts, the crime
    of attempted battery and the civil action for intentionally placing another
    in apprehension of an immediate battery. … [T]he definition of criminal
    assault …, at the time of the criminal code revisions, … could be summarized as including both ‘an act which reasonably puts one in fear of corporal injury’ and ‘an act intended to cause corporal injury by one who has the
    present ability to carry out such intent.’ Commentary to Proposed Oregon
    Criminal Code 95, § 94 (1970).
         “Among other amendments to the criminal code in 1971, the Oregon legislature defined the crime of assault. Assault now occurs when one intentionally, or with another specified mental state, causes some degree of physical
    injury to another. The alternative meaning of assault was not abandoned,
    however. ‘[T]he tort law derived concept of ‘intentional creation of the apprehension of receiving a battery’ … will be retained under the proposed law
    as the newly designated offense of menacing.’ Id. at 94.”
State v. Garcias, 

, 

 (1984).
Cite as 

 (2021)                                                167

reasonably believe that defendant more likely than not had
subjected D to offensive physical contact, which would satisfy the essential elements of harassment.
         Whether Adrian had probable cause to arrest defendant for menacing presents a closer call.10 Upon entering the
house, the officers were confronted by a chaotic scene, with
defendant behaving angrily and defiantly, a water dispenser
and “everything, everywhere” being overturned, and D, at
least to Adrian, sounding scared. Before placing defendant
in handcuffs—and therefore well before the search—Adrian
also had heard from D that defendant had a gun, which
could be perceived as signifying her fear of either defendant
or what he might do with the gun. And even though arguably
“furtive” actions, such as immediately walking away with a
bag purported to hold a gun when the officers entered, do
not alone “give rise to probable cause, they may add to a
finding of probable cause when they are contemporaneous
with the officer’s observations of other information consistent with criminal activity.” State v. Pham, 

, 

 (2018), rev den, 

 (2019) (internal
quotation marks omitted).
         On the other hand, although D gave Ballew information from which Ballew could reasonably have believed
that defendant had at a minimum harassed her by poking
and pinching her, D did not suggest that he had threatened
her with serious physical harm, with or without the handgun. In its ruling, the trial court did not articulate how it
interpreted those circumstances. See Sinkey, 

 (whether an officer’s subjective probable cause is objectively reasonable depends upon the totality of the circumstances). Indeed, the court never expressly relied on menacing as a basis for its ultimate ruling, stating instead that
“at a minimum, with an allegation of harassment in the
domestic violence context, that [the officers] were entitled to
take him into custody at that point.” (Emphasis added.) The
    10
       Indeed, it is not entirely clear that Adrian himself believed that he had
probable cause as to menacing. His testimony on that point was arguably ambiguous, in that he told the court that “we had definitely a probable cause to believe
that he had committed the crime of at least harassment, if not menacing with a
gun.” Given defendant’s apparent concession that Adrian had subjective probable
cause regarding menacing, we likewise assume that Adrian purported to have
probable cause as to that offense.
168                                              State v. Lipka

parties, on the other hand, appear to assume that the trial
court concluded that Adrian had objective probable cause to
arrest defendant for menacing.
         Ultimately, we need not conclusively decide whether
that ruling—if in fact the trial court made it—was legally
correct. That is, even assuming that Adrian had probable
cause to arrest defendant for both harassment and menacing, Adrian’s subsequent search of the bag was not a reasonable search for evidence of either offense; it therefore cannot
be upheld as a lawful search incident to arrest. As noted,
defendant argues that, even if Adrian had probable cause to
arrest him for a domestic-violence offense, he could not have
been searching for evidence of either harassment or menacing, because, under the circumstances, those offenses would
have had neither “instrumentalities nor fruits.” Although
we do not wholly agree with defendant’s reasoning, we agree
that, under these circumstances, Adrian’s search of the bag
was not a reasonable search for evidence of the offenses for
which defendant was arrested. As a result, the search of
defendant’s bag exceeded the permissible scope or intensity
of a lawful search incident to arrest.
         In support of his argument, defendant cites State v.
Owens, 

, 

 (1986), for the proposition that
   “if the person is arrested for a crime which ordinarily has
   neither instrumentalities nor fruits which could reasonably
   be concealed on the arrestee’s person or in the belongings
   in his or her immediate possession, no warrantless search
   for evidence of that crime would be authorized as incident
   to that arrest.”
         While defendant’s proposition may be true in the
abstract, we do not agree that it necessarily controls here.
The difficulty we see for the state’s position is not so much
that harassment and menacing are crimes that ordinarily
have neither fruits nor instrumentalities, a matter on which
we express no opinion. Rather, under the specific circumstances of this case, Adrian had no nonspeculative grounds
to believe that a search of the bag would disclose evidence of
the specific offenses that supported defendant’s arrest. We
recently addressed a similar circumstance as follows:
Cite as 

 (2021)                                           169

       “The language from Owens on which defendant relies
   was meant to highlight the larger point that the court was
   making in Owens: To initiate a search incident to arrest,
   ‘the arrest must be for a crime, evidence of which reasonably could be concealed on the arrestee’s person or in the
   belongings in his or her immediate possession at the time
   of the arrest.’ … We do not agree with defendant’s assertion that the crime of interfering with a police officer is a
   type of crime that would never justify conducting a search
   incident to arrest to find evidence of the arrestee’s crime.
   Instead, we consider the specific circumstances surrounding [the officer’s] search of [the] defendant’s car to determine whether it was reasonable to believe that evidence
   reasonably related to the crime of arrest could be concealed
   in the location being searched.”
State v. Hernandez, 

, 

(2019), rev den, 

 (2020) (internal citations omitted). “The test for validity of a search incident to arrest is the
reasonableness of the search in light of the circumstances of
the particular case.” Id. at 551 (brackets omitted).
         As in Hernandez, we must consider “whether it was
reasonable to believe that evidence reasonably related to
the crime of arrest could be concealed in the location being
searched.” We conclude that it was not reasonable under
the circumstances for Adrian to believe that a search of the
bag—which Adrian acknowledged was for the gun that D
had identified—would disclose evidence of the crimes for
which defendant was arrested. D specifically told Ballew
that defendant had jabbed her in the back with something—
perhaps keys—and Ballew merely speculated that defendant might have done so with the gun that D mentioned.
Mere speculation is not a basis to reasonably believe that
the gun was evidence of defendant’s alleged harassment.11
         Similarly, even if Adrian had probable cause to
arrest defendant for menacing, any belief that he had used
the gun for that purpose would be impermissibly speculative. As discussed above, although D described defendant’s
conduct towards her and had previously told the officers
    11
       The state does not posit that Adrian could have been searching for anything other than the gun that might have served as evidence of either harassment or menacing.
170                                            State v. Lipka

that defendant was in possession of a gun, at no point did
she suggest that the gun had played any part in defendant’s
conduct. Thus, while Adrian certainly had a basis to believe
that the bag would contain the gun, he had no nonspeculative reason to believe that it was used to menace D and
would therefore be evidence of that crime. Accordingly, the
trial court erred in denying defendant’s motion to suppress
the discovery of the gun and his related admissions that
followed that discovery.
          We conclude that the erroneous denial of defendant’s
motion to suppress was harmful to defendant in connection
with his charges for felon in possession of a firearm and
menacing, and the state does not argue against that conclusion. We conclude otherwise as to the harassment charge.
Accordingly, we reverse the menacing and felon in possession convictions due to that error asserted in defendant’s
first assignment, but we proceed to separately address defendant’s harassment charge under his supplemental assignments of error.
B. Nonunanimous Jury Instructions and Verdict
         Turning to defendant’s first and second supplemental assignments of error, we first note that we need not
address them insofar as they relate to the menacing and
felon in possession charges, as we have just reversed them
on other grounds. 314 Or App at 155 n 1. However, we must
consider defendant’s contention in his second supplemental
assignment of error that, as to the harassment count, Count
5, it was error for the trial court to receive the jury’s 11-1
verdict and to enter that conviction.
         Defendant concedes that these arguments are not
preserved and asks that we review for plain error. We agree
that the trial court plainly erred and that it is appropriate to reverse defendant’s harassment conviction on that
basis. As we recently concluded, due process considerations
require that, like more serious offenses subject to the Sixth
Amendment unanimous-jury right, when a class B or less
serious misdemeanor is tried to a jury, the jury must return
a unanimous verdict to find the defendant guilty. See State
v. Heine, 

, 

 (2021). These due
Cite as 

 (2021)                            171

process considerations turn on the same fairness considerations underlying the prohibition on nonunanimous guilty
verdicts for serious offenses, and, for the reasons explained
in State v. Ulery, 

, 

 (2020), we exercise our discretion to correct the plainly erroneous conviction for harassment.
        Reversed and remanded.