382
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted September 13, 2021; conviction on Count 1 reversed and
remanded, remanded for resentencing, otherwise affirmed August 10, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
RICO ORLANDO CABRERA,
Defendant-Appellant.
Washington County Circuit Court
19CR48204; A172840
Erik M. Buchér, Judge.
John Evans, 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.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
POWERS, J.
Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 321 Or App 382 (2022) 383
POWERS, J.
Defendant appeals from a judgment of conviction for
one count of unlawful entry into a motor vehicle (UEMV),
ORS 164.272 (Count 1), after the trial court merged the
guilty verdict for second-degree criminal trespass, ORS
164.245 (Count 2) into the UEMV charge. Defendant challenges the trial court’s ruling on his motion to suppress,
arguing that he was entitled to suppression of his identity
and a statement that he made after his arrest because his
arrest was not supported by probable cause and because
the state failed to present evidence sufficient to invoke the
inevitable discovery doctrine. For the following reasons, we
conclude that the trial court erred in denying defendant’s
motion to suppress the evidence gathered after his arrest
because the totality of the circumstances did not establish
objective probable cause that a crime was in progress or had
taken place, and the trial court’s failure to suppress defendant’s statement was not harmless as to Count 1 because
the statement was presented as circumstantial evidence of
defendant’s intent to commit the charged crime. That conclusion obviates the need to address defendant’s remaining
assignment of error challenging the trial court’s denial of
his motion in limine to exclude that same statement on the
basis that it constituted the assertion of his right to remain
silent under Article I, section 12. Accordingly, we reverse
and remand.
We review the trial court’s ruling denying defendant’s motion to suppress for errors of law. State v. Maciel-Figueroa, 361 Or 163, 165,
389 P3d 1121 (2017). In so doing,
we are bound by the court’s explicit factual findings if there
is constitutionally sufficient evidence in the record to support them. State v. Ehly,
317 Or 66, 75,
854 P2d 421 (1993).
Where the court did not make express findings and there
is evidence from which the court could have found a fact in
more than one way, we presume that the court decided the
facts consistently with its ultimate conclusion.
Id. We summarize the facts in accordance with those standards.
At the suppression hearing, Tualatin Police Officer
Lemon testified that he was patrolling a residential neighborhood where “car prowling” was common. At 2:30 a.m.,
384 State v. Cabrera
Lemon drove his marked patrol car down a residential street
lit by streetlights and observed two “shadowy figures” about
100 yards away. Lemon saw the two people run across the
street, away from a driveway, and used the spotlight on his
patrol car to look for them. He got out of his patrol car to look
around with his flashlight, but he did not see them. Lemon
then went to the driveway that the two people had come from
to investigate. A pickup truck and an SUV were parked in
that driveway. Lemon walked in between the pickup and SUV
to see if either was unlocked or if they had signs that they
had been rummaged through. The pickup’s doors were closed
and there was no sign of forced entry. When Lemon looked
into the pickup through the passenger window, he saw defendant sitting in the driver’s seat, “hunched down” or partially
lying down. The pickup’s center console and glove compartment were open. Lemon made eye contact with defendant,
and defendant immediately put his hands up. Lemon then
instructed defendant to get out of the pickup, placed him in
handcuffs, and informed him that he was under arrest for
unauthorized entry into a motor vehicle.
Lemon then asked defendant to identify himself,
requesting his name and age. Defendant responded, “That’s
your job.” Defendant was arrested and detained while
Lemon attempted to identify him.
At the suppression hearing, defendant argued that
Lemon lacked probable cause to arrest him and that all evidence obtained after his arrest should be suppressed including defendant’s identity and his statement in response to
Lemon asking his name. The state remonstrated, among
other arguments, that Lemon had probable cause to believe
that defendant had committed the crime of UEMV. The state
also argued that defendant’s identity would have been inevitably discovered; however, the state did not present evidence
as to what investigatory procedures Lemon would have followed to discover defendant’s identity. The trial court denied
the motion to suppress.
Before trial commenced the next day, defendant
moved in limine to exclude any testimony by Lemon that
defendant told the officer, “That’s your job,” because, in
defendant’s view, Lemon’s testimony on that point would be
Nonprecedential Memo Op: 321 Or App 382 (2022) 385
a comment on defendant’s right against self-incrimination
and his right to remain silent. The trial court denied the
motion in part, ruling that the state could elicit defendant’s
statement because it was “relevant as to the defendant’s
demeanor and the investigation,” but that the officer could
not testify to any other questions that he asked defendant to
which defendant did not provide an answer.
Defendant proceeded to a jury trial, and the jury
found him guilty of both counts. As noted earlier, the trial
court subsequently merged the guilty verdict for second-degree criminal trespass (Count 2) into the UEMV charge
(Count 1). This timely appeal followed.
On appeal, defendant asserts that the trial court
erred in denying his motion to suppress evidence because
he was arrested without probable cause. He argues that
Lemon’s subjective belief that defendant had committed
or was committing a crime was not objectively reasonable
and therefore Lemon lacked probable cause to arrest him.
Defendant contends that, because he was arrested without
probable cause, his identity and statement, “That’s your
job,” should have been suppressed.1 He further asserts that
the inevitable discovery doctrine does not apply because the
state failed to make a record sufficient to support the application of that doctrine.
The state responds that the trial court did not err
in denying the motion to suppress because Lemon had probable cause to arrest defendant. The state further argues
that, in any case, evidence of defendant’s identity was not
the product of the arrest.
Article I, section 9, of the Oregon Constitution protects individuals against unreasonable searches and seizures.2 In accordance with those protections, arrests must
1
To the extent that the state argues that defendant did not adequately make
this argument before the trial court, we reject the state’s contention. Although
defendant did not specifically focus on this statement at the suppression hearing,
the motion to suppress did focus on the “investigation and discovery” of his identity and the challenged statement necessarily would have been part of the remedy that defendant sought from a favorable decision on the motion to suppress.
2
Article I, section 9, provides, in part: “No law shall violate the right of
the people to be secure in their persons, houses, papers, and effects, against
386 State v. Cabrera
be supported by probable cause. State v. Lebanno, 314 Or
App 172, 176,
497 P3d 1280 (2021). Probable cause is present
when an officer subjectively believes that it is more likely
than not that a crime has been committed and that the
person to be arrested has committed it, and that subjective
belief is objectively reasonable under the circumstances.
State v. Miller,
157 Or App 489, 492,
972 P2d 896 (1998),
rev den,
328 Or 365 (1999). In determining whether an officer possessed probable cause, we examine the totality of the
circumstances known to the officer, including reasonable
inferences that may be drawn from those circumstances
in light of the officer’s relevant training and experience.
Lebanno,
314 Or App at 176.
The issue in this case is narrow. Neither party disputes that defendant was arrested when Lemon handcuffed
him and told him that he was under arrest. Nor does either
party dispute that Lemon had a subjective belief that defendant had committed or was committing a crime when he
arrested defendant. The parties’ dispute centers on whether
Lemon’s subjective belief was objectively reasonable. As
explained below, we conclude that Lemon’s subjective belief
that defendant had committed or was committing a crime
was not objectively reasonable under the totality of the circumstances, and, therefore, Lemon did not have probable
cause to arrest defendant.
Although Lemon saw two shadowy figures run away
from a driveway at 2:30 in the morning in a neighborhood
known for car prowling, that circumstance alone is not a
sufficient basis on which to conclude that it was objectively
reasonable that a crime is being or has been committed. It
is true that Lemon then found defendant sitting “hunched
down” in the driver’s seat of a pickup that was parked in
that driveway and that defendant raised his hands after
seeing Lemon, but the officer did not describe anything
else about the circumstances that suggested a crime was
in progress or had taken place. For instance, Lemon did not
describe anything suggesting that there was forced entry
unreasonable search, or seizure[.]” Although defendant also raises a challenge
under the Fourth Amendment, we need not reach that argument given our
disposition.
Nonprecedential Memo Op: 321 Or App 382 (2022) 387
into the pickup, nor did Lemon describe any information
from which he could objectively conclude that defendant did
not have permission to be in the pickup or was not the owner
of the pickup. Rather, Lemon saw two people run away and
then observed defendant in the pickup’s cab, where he was
attempting to position himself so that he would not be seen
and then raised his hands when confronted by law enforcement. Without more, we conclude that the state failed to
prove that there was probable cause that a crime was in
progress or had taken place based on the totality of the circumstances as articulated by Lemon, including all reasonable inferences that can be drawn from those circumstances.
Having concluded that the state failed to prove that
the officer’s belief was objectively reasonable under the circumstances, and that, therefore, Lemon lacked probable
cause to arrest defendant, we next consider the state’s argument that the inevitable discovery doctrine applies.
The right to be free from unreasonable searches
and seizures under Article I, section 9, also encompasses
the right to be free from the use of evidence obtained in violation of that state constitutional provision. State v. Jordan,
308 Or App 547, 558,
481 P3d 1017 (2021). When the state
obtains evidence in violation of a person’s rights under
Article I, section 9, “it is presumed that the evidence was
tainted by the violation and must be suppressed.” State v.
Jackson,
268 Or App 139, 151,
342 P3d 119 (2014). That is
a rebuttable presumption that the state can overcome by
establishing that “the police inevitably would have obtained
the evidence through lawful procedures.” State v. Unger,
356
Or 59, 64,
333 P3d 1009 (2014). To satisfy its burden, the
state is required to show by a preponderance of evidence
that (1) certain proper and predictable investigatory procedures would have been utilized in the instant case, and
(2) those procedures inevitably would have resulted in the
discovery of the evidence in question. State v. Hensley,
281
Or App 523, 535,
383 P3d 333 (2016). The state cannot meet
that burden by merely showing that evidence might or could
have been otherwise obtained; instead, a “conclusion that
predictable investigatory procedures would have produced
the evidence at issue must be substantiated by factual findings that are fairly supported by the record.”
Id.
388 State v. Cabrera
In this case, the state failed to meet its burden with
respect to both defendant’s identity and his statement. The
record contains no evidence showing that proper and predictable investigatory procedures would have been utilized
and resulted in deducing defendant’s identity. Nor does the
record contain evidence that police would have inevitably
obtained defendant’s statement through lawful procedures.
For those reasons, the state did not meet its burden to show
that police would have obtained defendant’s identity and
statement through lawful procedures.
Finally, having concluded that the state did not satisfy its burden to prove that defendant’s identity and statement would have been inevitably discovered, we consider
whether the trial court’s erroneous denial of the motion to
suppress was harmless. Under the Oregon Constitution,
error is harmless if there is “little likelihood that the particular error affected the verdict.” State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003). Defendant argues that the erroneously
admitted evidence was not harmless.
The trial court’s erroneous denial of the motion to
suppress was not harmless as to Count 1, the only count we
understand defendant to challenge, as it related to defendant’s statement, “That’s your job.” The state elicited that
statement at trial and referenced it during closing arguments as circumstantial evidence that defendant unlawfully entered the pickup with the intent to commit a crime.
Defendant did not dispute that he committed trespass but
disputed whether he entered the pickup with the intent
to commit theft. By referencing defendant’s statement as
part of its argument to the jury, the state used defendant’s
unwillingness to cooperate as evidence of his intent to commit a crime. For that reason, we cannot say that there was
little likelihood that its erroneous admission affected the
verdict on Count 1. Consequently, we conclude that the trial
court’s error in denying defendant’s motion to suppress his
statement was reversible error as to Count 1, which obviates the need to address defendant’s second assignment of
error challenging the admission of defendant’s statement as
to only Count 1 on alternative grounds. Further, by reversing and remaining on Count 1 and remanding the case for
Nonprecedential Memo Op: 321 Or App 382 (2022) 389
resentencing, the trial court on remand may enter a new disposition on the merged count, Count 2. See State v. Cockrell,
170 Or App 29, 31,
10 P3d 960 (2000) (explaining that reversal of conviction and affirmance of another conviction that
had been merged with it “has the effect of ‘unmerging’ those
crimes” such that the trial court is free to enter judgment
and sentence the defendant on the merged count).
Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.
