State v. Baca

                                    485

Submitted July 23; portion of judgment imposing special condition of probation
 reversed, remanded for resentencing, otherwise affirmed September 9, 2021;
           petition for review denied January 20, 2022 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   JAIME ALFREDO BACA,
                     Defendant-Appellant.
                Washington County Circuit Court
                     19CR41938; A172152
                                

   D. Charles Bailey, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
   Before James, Presiding Judge, and Kamins, Judge, and
Kistler, Senior Judge.
   PER CURIAM
   Portion of judgment imposing special condition of probation reversed; remanded for resentencing; otherwise affirmed.
486                                             State v. Baca

        PER CURIAM
          Defendant appeals from a conviction for unlawful
possession of methamphetamine, raising two assignments
of error. In his first assignment, defendant argues that the
trial court erred by denying his motion to suppress the evidence. On appeal, he argues that, by questioning defendant
about drugs during a stop that was initially based on the
officer’s suspicion about a trespass, police violated the subject matter limitation on investigative activities adopted
in State v. Arreola-Botello, 

, 

 (2019).
However, before the trial court defendant did not advance a
subject matter limitation argument. In State v. Hallam, 

, 

 (2020), we concluded that
the defendant’s arguments to the trial court under State v.
Rodgers/Kirkeby, 

, 

 (2010), were insufficient to preserve a subject matter limitation argument.
Hallam compels the conclusion that defendant’s arguments
here are unpreserved, and defendant has not demonstrated
that the error was plain.
         In his second assignment of error, defendant challenges the trial court’s imposition of a special condition of
probation requiring him to submit to searches by his supervising officer. The state concedes the probation condition
is unlawful, and that concession is well taken. As we have
repeatedly held, probation conditions cannot operate to constitute a “waiver of the probationer’s Article I, section 9,
rights, the probationer is entitled to refuse to allow the
search, and must be given a reasonable opportunity to do so.”
State v. Tennant, 

, 

 (2021)
(internal quotation marks and citation omitted; emphasis
in Tennant).
        Portion of judgment imposing special condition of
probation reversed; remanded for resentencing; otherwise
affirmed.