State v. Gill

No. 975 October 14, 2026 657 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL JAMES GILL, Defendant-Appellant. Lane County Circuit Court 24CR00275; A183909 Michelle P. Bassi, Judge. Submitted December 4, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Brett J. Allin, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. SHORR, P. J. Conviction on Count 2 vacated and remanded; remanded for resentencing; otherwise affirmed. 658 State v. Gill SHORR, P. J. Defendant appeals from a judgment of conviction for one count of fleeing or attempting to elude a police officer (attempting to elude), ORS 811.540, and one count of felon in possession of a firearm (FIP), ORS 166.270(1).1 He assigns error to the trial court’s denial of his motion to suppress evidence discovered during a search following a traffic stop. Defendant argues that his consent to the search was not voluntary, and even if it was voluntary, the officer’s conduct exceeded the scope of consent. We conclude that the officer’s search exceeded the scope of defendant’s consent. However, we also conclude that remand is necessary for the court to make further fact finding regarding the state’s alternative basis for affirmance, which is based on an argument that had been raised at trial but not decided by the trial court. As a result, we vacate the FIP conviction. We affirm, how- ever, the conviction for attempting to elude because any error was harmless as to that charge. Accordingly, we vacate and remand in part and affirm in part. We review the trial court’s denial of a motion to suppress for errors of law and are bound by the trial court’s factual findings as long as there is constitutionally sufficient evidence to support them. State v. Tennant, 310 Or App 70, 72, 483 P3d 1226 (2021). We state the relevant facts accordingly. Around midnight one evening, Officer Fanning observed a truck with no plates that was speeding, and he initiated a traffic stop. Defendant, the driver of the truck, kept driving for about another mile, but eventually stopped after turn- ing onto a private road blocked by a closed gate. Fanning handcuffed defendant and secured defendant in the back of his patrol vehicle. When he handcuffed defendant, Fanning believed he had probable cause for the crime of attempt- ing to elude but did not have probable cause for any other crimes. After securing defendant, Fanning walked to defen- dant’s truck and shined a flashlight into the interior to verify that there were no other occupants in the vehicle. He also called dispatch and learned that defendant had outstanding arrest warrants. He returned to defendant and read him the 1 The trial court dismissed Count 3, unlawful possession of a firearm, on the state’s motion. Cite as 353 Or App 657 (2026) 659 Miranda rights, after which defendant admitted that he was not going to stop for the officer “because I got warrants.” Another officer arrived and Fanning asked him to search defendant for weapons while Fanning returned to defendant’s truck to see if anything was in plain view. The front door of the truck was still open, and Fanning noticed two license plates in the front compartment, which he grabbed without asking for defendant’s consent.2 Fanning also noticed a license plate in the back seat, and after run- ning the plate, learned that it was associated with a vehicle reported as stolen. At that point, approximately 12 minutes had elapsed since Fanning handcuffed defendant. After learning that the plate in the back seat was stolen, Fanning believed he had probable cause for theft by receiving. When Fanning returned to his patrol vehicle to talk to defendant, defendant asked whether his mother could come pick up the truck. Fanning ignored that request. Fanning’s body camera footage subsequently recorded the following exchange: “OFFICER FANNING: * * * [W]ould you give me consent to just grab the plate from the rear of the truck? Because if not, I’ve got to talk to Lane County and your truck could be seized. “[DEFENDANT]: Well, I’m pretty sure that you already got something up your—you know, I know there’s—I know there’s a loophole and some kind of trickery— “OFFICER FANNING: No loopholes. I’m being straight up with you. “[DEFENDANT]: You’re just grabbing the plate? “OFFICER FANNING: Yeah. “[DEFENDANT]: That’s it? “OFFICER FANNING: Yeah. I don’t care about the weed in your vehicle or anything like that. You know, as long as you’re not smoking or driving— “[DEFENDANT]: No. 2 Fanning ran the two license plates that he retrieved from the front com- partment and learned that they were associated with the truck. 660 State v. Gill “OFFICER FANNING: —you’re fine. “[DEFENDANT]: Go ahead and grab the plate. “OFFICER FANNING: Okay.” The license plate was leaning against a backpack on the back seat, positioned in between the body of the back- pack and its straps. Fanning moved the front seat forward in order to access the license plate through the open front door. He lifted and moved the backpack and a pillow and then retrieved the license plate. After moving the back- pack, Fanning saw what appeared to be a shotgun that was partially covered with clothing. Fanning moved the cloth- ing and confirmed it was a shotgun. At that time, another officer informed Fanning that defendant wanted to know why Fanning was taking so long to retrieve the plate, and again relayed defendant’s consent for Fanning to “get the plate but nothing else.” Fanning informed defendant that he saw a shotgun in the vehicle after moving the backpack. He obtained defendant’s permission to remove the shotgun from the truck, and later obtained a search warrant and found additional ammunition in the truck. Defendant moved pretrial to suppress all evidence resulting from the warrantless search of his vehicle. He argued that he did not voluntarily consent to the search and that the officer’s conduct exceeded the scope of any consent validly given. At the hearing, Fanning testified about the encounter, and the state admitted his body camera footage as an exhibit. The trial court denied the motion to suppress, concluding that defendant “voluntarily gave limited consent to retrieve the license plate,” and that the officer’s actions were “not beyond the scope of the consent.” The case then proceeded to trial, and a jury found defendant guilty of attempting to elude and felon in possession of a firearm. On appeal, defendant challenges the trial court’s denial of his motion to suppress. Reprising the arguments he made at the hearing, he argues that his consent was not voluntary and that, even if it was voluntary, Fanning’s con- duct exceeded the scope of his consent. The state disputes those arguments and, alternatively, urges us to affirm Cite as 353 Or App 657 (2026) 661 because the intrusion was permissible as a search incident to arrest. A warrantless search violates Article I, section 9, of the Oregon Constitution unless it is done pursuant to “one of the few specifically established and well-delineated excep- tions to the warrant requirement.” State v. Sunderman, 304 Or App 329, 336, 467 P3d 52 (2020) (internal quotation marks omitted). Consent is one such exception. Id. Under the consent exception, the state must prove by a preponderance of the evidence that (1) someone having the authority to do so voluntarily consented to the search and (2) the search did not exceed the scope of the consent given.3 Tennant, 310 Or App at 75. We typically would begin with whether defendant’s consent was voluntary. However, we need not decide that issue here. Even if defendant’s consent was voluntary, we would still, as we discuss below, conclude that Fanning exceeded the scope of defendant’s consent. It is undisputed that defendant told Fanning he could “grab the plate.” The parties dispute whether Fanning exceeded the scope of that consent when he moved a backpack and pillow in the pro- cess of retrieving the plate. The state argues that the scope of defendant’s consent included allowing Fanning to move those objects because doing so was reasonably related to retrieving the plate. Whether a particular search falls within the scope of a defendant’s consent requires the trial court to determine, as a factual matter based on the totality of the circumstances, “what the defendant actually intended.” State v. Blair, 361 Or 527, 537, 396 P3d 908 (2017). We must therefore decide whether the trial court’s factual determi- nation that Fanning did not exceed the scope of defendant’s consent is supported by the record. State v. Cross, 316 Or App 506, 512, 502 P3d 753 (2021). In this case, Fanning asked for defendant’s con- sent to “just grab the plate from the rear of the truck.” Defendant initially expressed suspicion that Fanning was engaged in “some kind of trickery.” But defendant gave con- sent after confirming that Fanning would “just grab[ ] the 3 The parties do not dispute that defendant had authority to consent to the search of his vehicle. 662 State v. Gill plate” and “[t]hat’s it.” Based on that language, under the circumstances, the only permissible finding for the trial court to make was that defendant meant what he said—that Fanning could just grab the plate and that is it. See Blair, 361 Or at 537 (“[W]hat a person says is often the best indica- tor of what the person intended.”). The record does not allow a finding that defendant impliedly consented to the officer touching other objects in the truck. Cf. State v. Soprych, 324 Or App 659, 665, 527 P3d 808 (2023) (even where the defen- dant did not state any express restrictions, police exceeded the scope of the defendant’s consent to unlock and enter his bedroom when they used the key ring he provided to also open a locked safe in the bedroom). Defendant’s later state- ments confirmed the limits of his consent. Approximately one minute after defendant gave consent and before defen- dant knew that Fanning had discovered the shotgun, defen- dant expressed concern that Fanning was still rummaging in the back seat of the truck and stated that Fanning could “get the plate but nothing else.” Cf. Cross, 316 Or App at 512 (record demonstrated that the defendant intended scope of consent to include a brown leather bag, in part because the defendant never objected to the officer searching it). Fanning’s request for consent was also limited to “just” the license plate. See Blair, 361 Or at 538 (when the requesting officer “make[s] clear to a suspect what the objects of the requested search are and what level of scru- tiny is sought,” that helps to further clarify the defendant’s intent). Fanning testified that he “could have” retrieved the plate without moving anything, but moved the items out of safety concerns. Whether Fanning needed to move the backpack and pillow in order to more easily or safely access the license plate are issues we need not decide.4 Fanning’s request did not indicate to defendant that he needed to take additional actions beyond reaching in and grabbing the license plate. Nor do defendant’s statements demonstrate that he understood Fanning might move other objects in the truck while accessing the plate and intended to consent to that. The record does not support the trial court’s fac- tual determination that defendant intended the scope of his 4 We note, however, that in the video, the license plate appears to be retriev- able without needing to move the backpack or pillow. Cite as 353 Or App 657 (2026) 663 consent to include the actions taken by Fanning. Rather, the record indicates that defendant did not consent to those actions. The trial court erred in determining that Fanning’s conduct had not exceeded the scope of consent and denying the motion to suppress on that basis. We turn to the state’s proposed alternative basis for affirmance. The state argues that Fanning’s search of the truck was justified by the search-incident-to-arrest excep- tion to the warrant requirement because he had probable cause to arrest defendant for theft by receiving. The search- incident-to-arrest exception allows a warrantless search incident to arrest for several purposes, including, as relevant here, “to discover evidence of the crime of arrest.” State v. Mazzola, 356 Or 804, 811, 345 P3d 424 (2015). But “a search incident to arrest need not relate to the crime for which defendant was arrested so long as it relates to another crime for which the officer affecting the arrest also had probable cause.” State v. Nix, 236 Or App 32, 45, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 (2011). The arresting officer may develop probable cause for a new crime, thus justifying a search incident to arrest, during the course of the arrest for the original crime. See State v. Owens, 302 Or 196, 205, 729 P2d 524 (1986) (applying the exception to situations where the officer observed drug par- aphernalia and developed probable cause for narcotics pos- session while lawfully searching the defendant’s purse for stolen items after she had been observed shoplifting); Nix, 236 Or App at 34-35 (the officer developed probable cause for drug-related crimes during a valid pat-down search after arresting the defendant on outstanding warrants). However, in all events, a search must be reasonable in time, scope, and intensity in light of the relevant circumstances. Nix, 236 Or App at 42. The state bears the burden of demonstrating the reasonableness of a warrantless search. State v. Ramirez, 305 Or App 195, 218, 468 P3d 1006 (2020). The state argued below that Fanning had developed probable cause to arrest defendant for theft by receiving, and therefore the search of the truck was justified under the search incident to arrest exception. The trial court, having ruled that the search was lawful pursuant to defendant’s 664 State v. Gill consent, declined to make any findings as to whether or not Fanning had independent probable cause to have searched the truck on that basis. Because fact finding is necessary in order to resolve the issue, both as to the existence of proba- ble cause and the reasonableness of the search under such circumstances, we conclude that it is appropriate to vacate defendant’s conviction and for the trial court to make fur- ther findings on remand. See State v. Plummer, 134 Or App 438, 442, 895 P2d 1384 (1995) (concluding that the trial court erred when it concluded that the defendant’s arrest for assault precluded any warrantless search incident to arrest for contraband when the officer might have had prob- able cause to arrest the defendant for possession of a con- trolled substance, and remanding for fact finding regard- ing the existence of probable cause and whether the search was reasonable in view of all the facts); see also Sherertz v. Brownstein Rask, 314 Or App 331, 341, 498 P3d 850 (2021), rev den, 369 Or 338 (2022) (“When an alternative argument was made in the trial court * * * [and] is properly presented again on appeal and raises a question of law, we may sim- ply resolve it, typically remanding only if it is necessary for the trial court to make factual findings from conflicting evi- dence, exercise discretion, or the like.”).5 Finally, we turn to whether the error of exceeding the scope of consent was harmless. We must affirm despite error if there was “little likelihood” that the error affected the jury’s verdict. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). As to Count 2, the FIP charge, we readily con- clude that the erroneous denial of defendant’s motion to suppress evidence of the firearm was not harmless. Without 5 We additionally note that the scope of the search incident to arrest excep- tion is currently pending before the Oregon Supreme Court. State v. Barajas, 332 Or App 252 (nonprecedential memorandum opinion), rev allowed, 372 Or 763 (2024). The issue before the court in that case pertains directly to this matter: “May police rely on the search incident to arrest exception under Article I, section 9, of the Oregon Constitution to search the inside of a car when the arrestee is physically removed from the car, is handcuffed in police custody, and where no other exigent circumstances prevent the state from seeking a warrant?” Amended Petition for Review of Defendant-Appellant at 7, State v. Barajas, 332 Or App 252 (nonprecedential memorandum opinion), rev allowed, 372 Or 763 (2024) (SC S071120). Any resulting refinement of the search incident to arrest doctrine can be applied on remand. Cite as 353 Or App 657 (2026) 665 the firearm, discovered after Fanning exceeded the scope of defendant’s consent, the state would have had no evidence to support that charge. We conclude, however, that the error was harm- less as to Count 1, attempting to elude. The jury watched Fanning’s body-cam video that showed defendant admit that he was not going to stop “[b]ecause I got warrants.” That admission occurred before Fanning exceeded the scope of defendant’s consent. The state repeatedly referred to defen- dant’s admission in closing argument when it contended that defendant was knowingly attempting to elude the offi- cer.6 Defendant did not address that evidence in closing. Instead, defense counsel argued that defendant did not drive for “very long” after the officer turned his police lights and siren on. Defense counsel contended that defendant slowed down and pulled over within half a mile at the first safe spot when he realized that the officer was signaling him with his siren. The jury necessarily rejected that defense. Although the fact that he was a felon in possession of a firearm may also have given defendant a reason to elude and put him in a negative light before the jury, defendant stated that he did not pull over “[b]ecause I got warrants” and the state relied on that admission in its closing. In those circumstances, we conclude that the trial court’s error in denying the motion to suppress, which led to the admission of the firearm evi- dence, was harmless and had little likelihood of affecting the verdict as to Count 1. We therefore vacate and remand Count 2 (FIP) but affirm the conviction on Count 1 (attempt- ing to elude). Conviction on Count 2 vacated and remanded; remanded for resentencing; otherwise affirmed. 6 Defendant contends that the prosecutor’s closing argument made the admission of the shotgun evidence not harmless on the attempting-to-elude charge. At the conclusion of its closing, the prosecutor argued that defendant “made a choice to keep [the shotgun] with him in his backseat. And when he saw Officer Fanning driving behind him, he made a choice to speed away.” In context, we understand the prosecutor to be summarizing the evidence on the two dif- ferent charges, FIP and attempting to elude. The prosecutor earlier had argued that defendant had intended to elude based on his knowledge of his outstanding warrants, which is what defendant had admitted to the officer. In either case, we conclude that any error was harmless on the attempting-to-elude charge.