State v. Harmon

329 Or.App. 639

541 P.3d 267

STATE of Oregon, Plaintiff-Respondent,

v.Brittany Lynn HARMON, Defendant-Appellant.

A177992 (Control), A177993, A177994

Court of Appeals of Oregon.

Argued and submitted October 27, 2023

December 20, 2023

Rond Chananudech, 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.

Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and David B. Thompson, Assistant Attorney General.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

KAMINS, J.

In this consolidated appeal, in case number 21CR17744, defendant appeals a judgment of conviction for aggravated identity theft, ORS 165.803. She raises a sole assignment of error, challenging the trial court's denial of her motion to suppress.¹ We reverse and remand.

I. BACKGROUND

Late in the evening, a police officer initiated a traffic stop of a car in which defendant was a passenger. After the driver produced an identification card that did not belong to him, the officer arrested him for identity theft and giving false information to a peace officer. Once the driver was taken into police custody, a second officer noticed a handgun between the driver's seat and the center console. A third officer approached the front passenger side of the car, where defendant sat, and asked defendant to step out of the vehicle for officer safety purposes. Defendant held a small black backpack-style purse on the seat between her and the passenger-side door during that interaction, and as she exited the car, she held a pink wallet, but placed the backpack on the passenger floorboard. The officer then directed defendant to stand beside another officer behind the car.

The officers notified defendant that they had removed her from the car because of the handgun that they found. Defendant claimed the handgun belonged to her, but the officers did not believe her. An officer then proceeded to search the passenger compartment of the vehicle for evidence pertaining to the driver's arrest. While searching, the officer opened defendant's backpack and found a black wallet inside that contained numerous identification, debit, and credit cards belonging to people other than defendant. The officers arrested defendant for aggravated identify theft based on the contents of her backpack. While searching her person incident to that arrest, the officers found four or five more identification cards in the pink wallet defendant was holding.

In case number 21CR17744, defendant was charged with aggravated identity theft, ORS 165.803. She moved to suppress the evidence derived from the search of her backpack, arguing that the police violated her constitutional rights by searching it without a warrant or a valid exception to the warrant requirement. Following a hearing, the trial court denied defendant's motion and identified a number of exceptions justifying the search of the backpack: (1) officer safety; (2) search incident to defendant's arrest; and (3) search incident to the driver's arrest.

Defendant waived trial by jury and proceeded to a bench trial. The trial court found defendant guilty and sentenced her to 36 months’ probation. Defendant timely appealed.

II. DISCUSSION

In her sole assignment of error, defendant asserts that the trial court erred in denying her motion to suppress. She raises a number of arguments addressing each of the exceptions to the warrant requirement identified by the trial court in its ruling.

We review a trial court decision denying a motion to suppress for errors of law. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's factual findings if there is constitutionally adequate evidence to support them. State v. Edwards , 319 Or App 60, 62, 509 P.3d 177, rev. den. , 370 Or. 212, 519 P.3d 538 (2022) (citing Ehly , 317 Or. at 75, 854 P.2d 421 ).

Article I, section 9, of the Oregon Constitution protects individuals’ privacy and possessory interests. State v. Luman , 347 Or. 487, 492, 223 P.3d 1041 (2009). A warrantless search of an individual's personal property is an unreasonable interference with that individual's privacy interest in the property unless a valid exception to the warrant requirement applies. State v. Bunch , 305 Or App 61, 65, 468 P.3d 973 (2020). The state has the burden of proving that a valid exception applies. State v. Barber , 279 Or App 84, 89, 379 P.3d 651 (2016). One such exception is the search-incident-to-arrest exception, which permits a warrantless search "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. Mazzola , 356 Or. 804, 811, 345 P.3d 424 (2015). In support of its ruling the trial court cited: (1) officer safety concerns; (2) search incident to defendant's arrest; and (3) search incident to the driver's arrest. On appeal, defendant challenges all three justifications. Although the state defends the trial court's ruling only under the third justification, we address each of them in turn.

A. Officer Safety Concerns

The officer-safety exception to the warrant requirement allows an officer to "take reasonable steps to protect himself or others if * * * the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present." State v. Bates , 304 Or. 519, 524, 747 P.2d 991 (1987) (emphasis added). The standard has both an objective and a subjective component, and the state bears the burden of proof and persuasion with regard to both components. State v. Ramirez , 305 Or App 195, 205, 468 P.3d 1006 (2020). And an officer's subjective concerns must be from an immediate threat. Id.

Here, the trial court ruled that the officers could search defendant's backpack because of the officer safety concerns that arose following their discovery of the handgun between the driver's seat and the center console. We conclude for two reasons that officer safety concerns did not justify the search. First, the officers did not articulate a specific safety concern with respect to defendant's backpack. Second, at the time that police searched defendant's backpack, there was no immediate threat to the officers. A warrantless search to protect an officer's safety "will be justified only when the area searched is still within the defendant's control, so that the defendant would be able to obtain a weapon stashed in the area[.]" State v. Krause , 281 Or App 143, 146, 383 P.3d 307 (2016), rev. den. , 360 Or. 752, 388 P.3d 725 (2017). But here, the officers did not search defendant's backpack until after the handgun was secured, an officer stood with defendant behind the car, and the driver was in custody. At that point, there was no risk of the driver or defendant accessing the backpack or any potential weapons that may have been inside it.

Under those circumstances, it was not objectively reasonable to believe that defendant's backpack posed an immediate threat of physical injury to the officers. Therefore, the trial court erred in relying on officer safety to justify denying defendant's motion to suppress.

B. Search Incident to Defendant's Arrest

A warrantless search incident to arrest requires a valid arrest. State v. Caraher , 293 Or. 741, 757, 653 P.2d 942 (1982). A valid arrest requires police to have both subjective and objective probable cause to believe that the person committed a crime. State v. Owens , 302 Or. 196, 203-04, 729 P.2d 524 (1986). An officer's belief that the person "possibly" committed a crime is insufficient to satisfy the subjective prong of probable cause. State v. Demus , 141 Or App 509, 513, 919 P.2d 1182 (1996). "The test is not simply what a reasonable officer could have believed when he conducted a warrantless search or seizure, but it is what this officer actually believed[.]" Owens , 302 Or. at 204, 729 P.2d 524 (emphasis in original).

Here, the officers did not have a subjective belief that defendant had committed a crime. Although defendant told the police that the gun found in the car belonged to her, the police body-camera footage showed the officers discussing the fact that they did not believe her, and one of the officers testified as much at the suppression hearing. Indeed, the trial court found that the officers did not believe the gun belonged to defendant, and we are bound by that finding. Because the officers lacked subjective probable cause to arrest defendant for the firearm offense (or any other offense at the time the backpack was searched), a search of the backpack could not be justified based on defendant's arrest. The trial court therefore erred in denying defendant's motion based on the search-incident-to-arrest exception.

C. Search Incident to the Driver's Arrest

Turning to the final basis for the trial court's decision, defendant argues that she is entitled to suppression because the search of her backpack exceeded the permissible scope of a search incident to the driver's arrest, as the backpack was not within the "immediate control" of the driver prior to his arrest. To support her contention that the scope of the search exceeded the space within the driver's immediate control—and was therefore unreasonable—defendant points to the facts that the backpack was on the passenger-door side of her seat beside her, the police knew it belonged to her, and there was nothing to independently connect the driver to the backpack. The state responds that, because the backpack held by defendant was within arm's reach of the driver just before his arrest, it was within his "immediate control," permitting the police to search the backpack incident to his arrest.

The touchstone of a...