State v. Briggs

No. 230                 April 10, 2024                       819

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               BILLY JUDD WADE BRIGGS,
                   Defendant-Appellant.
               Malheur County Circuit Court
                   19CR11374; A178717

   Lung S. Hung, Judge.
   Submitted February 7, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
   JACQUOT, J.
   Affirmed.
820                                            State v. Briggs

        JACQUOT, J.
         Defendant appeals a judgment of conviction for one
count of possession of methamphetamine. He argues that
the trial court erred (1) in denying his motion to suppress
evidence that police discovered in the car in which they
found defendant and another occupant; and (2) in denying
his motion for a judgment of acquittal on the possession
charge. We affirm.
        Motion to suppress. In his first assignment of error,
defendant contends that the trial court erred in denying his
motion to suppress evidence found in the car. Within that
assignment, he advances two distinct arguments: First,
defendant contends that police conducted an unlawful
search when they directed him to get out of the car, which
allowed police to view a baggie on the passenger seat that
was otherwise obstructed while he was sitting on it. Second,
he contends that a subsequent search of a black bag behind
the passenger seat was not a lawful search incident to arrest
because there was no exigency to justify it.
         With respect to defendant’s first argument, the
state responds that defendant either waived or failed to
preserve that issue for appeal. We disagree. Defendant’s
written motion to suppress included an argument that the
state “ordering occupants out of a vehicle is a search,” citing
State v. Finlay, 

, 

 (2000). Although
defendant at one point in the suppression hearing told the
court that he was arguing that ordering him to exit the car
constituted a seizure and not a search, he later clarified that
he was, in fact, arguing under Finlay and State v. Dorado,

, 

 (2020), that the order
had resulted in an unlawful search. Defendant’s arguments,
viewed as a whole, were sufficient to put the trial court and
the state on notice of the issue that defendant now raises
on appeal: that police had conducted an unlawful search by
ordering defendant to exit the car. See State v. Parkins, 

, 

 (2009) (explaining that “the preservation rule is a practical one, and close calls … inevitably will turn on whether, given the particular record of
a case, the court concludes that the policies underlying the
rule have been sufficiently served”).
Nonprecedential Memo Op: 

 (2024)             821

          Turning to the merits of defendant’s argument, we
agree with the state that police did not violate Article I, section 9, of the Oregon Constitution when they directed him
out of the car in connection with the arrest of the driver.
At the time that defendant was awakened and told to exit
the car, officers had observed a methamphetamine pipe with
white residue in the center console; the driver of the car had
denied ownership of that pipe and said that it was “probably his”—referring to defendant; with the consent of the
driver, police had opened a green glasses case in the car
that included methamphetamine and a second pipe; and the
driver, who was on probation, had been arrested. In that
context, police lawfully directed defendant out of the car so
that they could collect the pipes that had already been discovered in the car in immediate proximity to the passenger
seat. See State v. Amaya, 

, 

(2004) (“[A]n officer may take reasonable steps respecting
the passengers, including, for example, asking the passengers to exit the vehicle so the officer may search the vehicle, assuming that the driver has consented to the search or
that it otherwise is justified.”). And, for that reason, this is
not a case like Finlay or Dorado where police, without any
lawful basis for the order, directed individuals to move in
order to reveal something that was otherwise concealed. Cf.
Dorado, 

 (“[The officer’s command to ‘open
the door’ of his home]—without a lawful basis—compelled
defendant to open the door. That was an unconstitutional
search.”); Finlay, 

 (“[The officer] had no
lawful basis to order defendant and his passenger from the
car so that he could inspect the doorpost VIN. That is, [the
officer] compelled defendant to open the car door to reveal
that which was otherwise concealed.”).
         Defendant’s second argument regarding the suppression motion is that police were not permitted to search a
black bag found behind the passenger seat as a search incident to arrest without evidence that an exigency justified
that search. Defendant acknowledges that we held otherwise in State v. Krause, 

, 

(2016), rev den, 

 (2017), but he urges us to overrule that decision as plainly wrong in light of then-existing
case law and subsequent Supreme Court decisions. We
822                                          State v. Briggs

recently considered the same argument in State v. Stevens,

, 

 (2023), and we decline to
overrule Krause for the reasons expressed in Stevens.
         Judgment of Acquittal. In his second assignment,
defendant argues that the trial court erred in denying his
motion for a judgment of acquittal because the evidence was
legally insufficient to prove that he possessed methamphetamine. We agree with the state that the evidence in this
record—including that defendant was sitting on the baggie
of methamphetamine—would allow a reasonable trier of
fact to infer that defendant exercised control over the methamphetamine. State v. Tacia, 

, 

 (2024) (“Constructive possession ‘may be established
by circumstantial evidence.’ ” (Quoting State v. Leyva, 

, 

, rev den, 

 (2009).)).
The trial court did not err in denying the motion for a judgment of acquittal on the possession charge.
        Affirmed.