State v. McCall

                                       538

Argued and submitted December 15, 2020, affirmed November 3, 2021, petition
              for review denied March 24, 2022 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     JOE VERNON McCALL,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                      18CR31037, 17CR15569;
                    A170431 (Control), A170424
                                   

     Defendant appeals from a judgment of conviction for the unauthorized use of
a vehicle, ORS 164.135, and possession of a stolen vehicle (PSV), ORS 819.300.
Defendant also challenges the revocation of his probation as a result of his conviction. Defendant assigns error to the trial court’s denial of his motion to suppress evidence obtained as a result of his warrantless arrest. An officer arrested
defendant after running the license plate of a vehicle, discovering it was stolen,
and observing defendant working on the interior of the driver’s side door of that
vehicle with a pair of pliers. After the arrest, the officers found further evidence
indicating the car was stolen, including a key stuck in the door lock. The trial
court rejected defendant’s argument that working on the car door with pliers
coupled with the officers’ knowledge that the car was stolen was insufficient for
probable cause to arrest. Held: The trial court did not err in denying the motion
to suppress because there was probable cause to arrest the defendant for PSV. It
was objectively reasonable for the officers to believe defendant was in possession
of a car that he had reason to believe was stolen.
    Affirmed.



    Benjamin N. Souede, Judge.
   Stacy M. Du Clos, 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.
   Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
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 (2021)   539

  MOONEY, J.
  Affirmed.
540                                                          State v. McCall

         MOONEY, J.
         In this consolidated criminal appeal, defendant
challenges convictions for the unauthorized use of a vehicle (UUV), ORS 164.135 (2007), amended by Or Laws 2019,
ch 530, § 1,1 and possession of a stolen vehicle (PSV), ORS
819.300, as well as the resulting revocation of his probation in another case. Because we conclude that the arresting officer’s subjective belief that he had probable cause to
arrest defendant for PSV was objectively reasonable, we conclude that the trial court did not err in denying defendant’s
motion to suppress the statements and evidence obtained as
a result of that arrest. We also conclude that the trial court
did not err in denying defendant’s motions for judgment of
acquittal without further discussion.
         We review a trial court’s denial of a motion to suppress for legal error. State v. Maciel-Figueroa, 

, 

 (2017). We are bound by the court’s findings of fact that are supported by the record; if the court
did not make an express finding, we will assume “the court
decided the facts in a manner consistent with its ultimate
conclusion.” State v. Williams, 

, 

 (2019). We recite the relevant facts in accordance with
that standard.
         On May 18, 2018, Officers Hughes and Stevens
were on duty with the Transit Police unit and traveling on
a “highly trafficked street.” They passed an apartment complex parking lot and saw defendant standing next to the
open driver side door of a vehicle. Hughes ran the plates and
determined that the vehicle was stolen. The officers pulled
into the parking lot, observed that the defendant was using
a pair of pliers to work on the interior driver’s side door handle, and arrested him. After the arrest, the officers observed
that there was a key stuck in the car door lock and that there
was other evidence indicating that the car had been stolen.
         Defendant was charged with one count of UUV and
one count of PSV.2 Defendant moved to suppress evidence
    1
      All references in this opinion to ORS 164.135 are to the 2007 version of that
statute.
    2
      Defendant was also charged in the same instrument with UUV and PSV
arising out of an incident that occurred a month earlier. The court granted a
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obtained from his warrantless arrest, arguing that the officers lacked probable cause in violation of both Article I, section 9, of the Oregon Constitution and the Fourth Amendment
to the United States Constitution. The trial court concluded
that the officers had probable cause to arrest defendant and
denied the motion to suppress. The court explained:
       “But I believe with respect to the May incident, the
   arresting officers at the time they took [defendant] into
   custody knew that the Mazda had been stolen; they knew
   it was sitting in a parking lot on a well-traveled street or
   next to a well-traveled street near a well-traveled street.
      “They knew the Mazda had been stolen, and they knew
   [defendant] was inside the wingspan of the driver’s side
   door working on the interior of the door; and I think they
   even knew he was working at or near the interior portion of
   the handle with a pair of pliers.
       “Even accepting the defense position that there must be
   something in addition to the defendant exercising dominion or control over a stolen vehicle, I do think that to the
   extent something else, in quotes, is required, I think …
   working on the inside of a door relating to a portion of the
   car that relates to getting in and out of that car with a tool
   [is] a sufficient additional element.
      “Well, I’ll try that again. It falls inside of the lines the
   Court of Appeals ha[s] drawn for what can constitute probable cause. In this case, I think the arresting officer certainly has objective probable cause and I believe that that
   probable cause existed objectively in light of all of those
   factors.”
Defendant waived jury and was found guilty of UUV and
PSV at the conclusion of the bench trial. This appeal followed.
           Article I, section 9, provides that
       “[n]o law shall violate the right of the people to be secure
   in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but
   upon probable cause, supported by oath, or affirmation,

motion to suppress with regard to the earlier incident and then granted a motion
to dismiss those unrelated charges. Those dismissed charges are not part of this
appeal.
542                                           State v. McCall

   and particularly describing the place to be searched, and
   the person or thing to be seized.”
A warrantless arrest is permitted when the arresting officer has “probable cause to believe that the person has committed” a crime. ORS 133.310(1); State v. Owens, 

, 

 (1986). “Probable cause” to arrest is
defined as a “substantial objective basis for believing that
more likely than not an offense has been committed and a
person to be arrested has committed it.” ORS 131.005(11).
Probable cause to arrest exists under Article I, section 9,
when the arresting officer subjectively believes that the person to be arrested committed a crime and that subjective
belief is objectively reasonable. State v. Hudson, 

, 

 (2012). We determine objective reasonableness by examining the totality of the circumstances
to discern whether the officer had a basis to believe that,
“more likely than not,” an offense had been committed by
the person to be arrested. 

         Defendant was arrested for UUV and PSV. A person commits the crime of UUV when he “knowingly takes,
operates, exercises control over or otherwise uses another’s
vehicle, boat or aircraft.” ORS 164.135(1)(a). A person commits the crime of PSV when he “possesses any vehicle which
the person knows or has reason to believe has been stolen.”
ORS 819.300(1). The parties agree that the arresting officer subjectively believed that defendant had committed the
crimes of UUV and PSV. The state does not dispute that
the officer must have had an objective basis to believe that
defendant engaged in the proscribed conduct, with the requisite mental state, for at least one of those crimes in order
to have had constitutionally sufficient probable cause to
arrest him without a warrant. See State v. Gibson, 

, 

 (2015); State v. Ayvazov, 

, 

, rev den, 

 (2012); State v.
Rayburn, 

, 

 (2011), rev den, 

 (2012).
        For UUV, the officers must have had an objective
basis to believe that defendant exercised control over or
otherwise used the vehicle knowing that the vehicle was stolen. ORS 164.135(1). For PSV, the officers must have had an
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objective basis to believe that defendant was in possession of
the vehicle when defendant had “reason to believe” that the
vehicle was stolen. ORS 819.300; State v. Noe, 

, 

 (2011). Our assessment of probable cause
necessarily takes into account that the type of conduct—
exercising control over or using for UUV versus being in
possession for PSV—and the level of criminal intent—
knowingly for UUV versus reason to believe for PSV—are
less specific for PSV than for UUV with a corresponding
differential in the evidentiary requirements of each.
         A review of our cases illustrates the important role
that the unique facts of each case plays in discerning the
objective reasonableness of an officer’s subjective belief that
he or she has probable cause to make a warrantless arrest.
Three cases are particularly instructive here. In Rayburn,
the officers had received a report that a car was being
driven recklessly with objects being thrown from it. 246 Or
App at 488. They located the vehicle on a long driveway and,
when the vehicle began approaching the officers head-on,
they ordered the occupants to stop and demanded that the
driver shut off the engine and remove the key from the ignition. Id. The defendant, the driver, was unable to remove
the key from the ignition, which, in the officer’s experience
and training, indicated that the car was likely stolen. Id. at
491. We concluded that the officer’s subjective belief that the
driver was committing UUV was corroborated by his observation that the defendant could not remove the key aided by
the officer’s understanding through experience and training
that the inability to remove the key meant that it likely was
stolen. Id. That was enough to establish probable cause to
arrest. Id.
         We also concluded that there was probable cause
to arrest for UUV in Gibson, where the officers knew that
the vehicle was reported stolen and they observed that the
defendant was unable to locate the vehicle registration or
insurance information when they asked him to do so. 

. We concluded that “defendant’s inability to
locate the car’s registration and insurance information is a
factor on which the police could reasonably rely in concluding that, more likely than not, defendant knew the vehicle
was stolen.” 

544                                                         State v. McCall

         We likewise concluded that there was probable
cause to arrest for UUV in Ayvazov, where the facts known
to the arresting officer at the point he encountered the
defendant were that “a green Honda with the license plate
of the car defendant was in had been stolen and that it had
very recently been seen near the site of the arrest. They also
knew that, when it was seen, it was being driven by a man
who appeared to be attempting to run down a woman.” 246
Or App at 647 (emphasis in original). Although the defendant was sitting in the passenger seat when the officer
encountered the car, we concluded that those facts were sufficient to establish the objective reasonableness of the officer’s subjective belief that the defendant had recently been
driving that stolen vehicle. Id.
         Here, the arresting officers knew (1) that the vehicle had been stolen, (2) that defendant was standing within
the open driver’s side door, and (3) that defendant was working on the inside door handle with a pair of pliers. That was
enough. This is not a case of “mere proximity,” which would
not alone support probable cause to arrest. State v. Hebrard,

, 

 (2011). As the trial court
aptly described it, defendant was standing within the “wingspan” of the driver’s side door and he was working on the
door handle with a pair of pliers. We understand the court’s
use of the term “wingspan”3 to refer to the distance by which
the open driver’s side door extended the interior reach of
the car and, as a practical matter, the reach of the driver or
other person positioned within that extended area.
        This case is similar to Ayvazov, where, as noted
above, the officers knew that the vehicle was stolen, that
it had recently been seen being driven by a man chasing
down a woman, and that the defendant was in the front
passenger seat when the officers encountered him. Ayvazov,

. Here, the officers encountered defendant
standing within the driver’s side wingspan of a vehicle that
they knew had been stolen, and they saw him working on
the door handle with a pair of pliers. Given that one could
reasonably view defendant’s work on the door as facilitating

   3
     “[T]he distance from the tip of one of a pair of wings to that of the other.”
Merriam-Webster’s Collegiate Dictionary 1435 (11th ed 2003).
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access without a key—as might be necessary for a stolen
vehicle—it was objectively reasonable for the officers to form
a belief that defendant “at least had reason to believe” that
the car was stolen. State ex rel Juv. Dept. v. Hal, 

, 

 (2000) (citing ORS 819.300(1)). Based on
the circumstances known to the officers at the time of the
arrest, we conclude that it was reasonable for the officers to
infer that defendant was in possession of a car that he would
have had reason to believe was stolen. At a minimum, the
officers had probable cause to arrest for PSV and that is all
they needed to make the arrest.
          In addition to his argument under Article I, section
9, defendant argues that exclusion of the challenged evidence is also required under the Fourth Amendment. We
note that he made little more than passing reference to that
argument before the trial court and that his development
of it on appeal lacks the type of “thorough and focused constitutional analysis” necessary for us to address it. State v.
Thompson, 

, 254 n 3, 

, cert den, 

 (1999) (explaining that court would not address constitutional claims in the absence of “thorough and focused
constitutional analysis”). We, thus, decline to do so.
        Affirmed.