State v. Stevens

118                 November 15, 2023               No. 589

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               ERIC THOMAS STEVENS,
                  Defendant-Appellant.
             Washington County Circuit Court
                  19CR33850; A176619

   Theodore E. Sims, Judge.
   Argued and submitted April 24, 2023.
   Brett J. Allin, 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.
   Christopher A. Perdue, 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 Powers, Judge, and
Hellman, Judge.
   ORTEGA, P. J.
   Portions of the judgment ordering defendant to pay a
“$40.00 community service fee” and a “supervision fee”
reversed; otherwise affirmed.
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 (2023)   119
120                                          State v. Stevens

        ORTEGA, P. J.
          Defendant appeals from a judgment convicting him
of unlawful possession of cocaine, ORS 475.884, and driving
under the influence of intoxicants (DUII), ORS 813.010. In
his first assignment of error, he challenges the trial court’s
denial of his motion to suppress evidence found during a
search of his car incident to his arrest for DUII. Defendant
acknowledges that State v. Krause, 

, 

 (2016), rev den, 

 (2017), is contrary to
his position but contends that Krause is plainly wrong and
should be overruled. In his second and third assignments
of error, defendant challenges the imposition of two fees
that appeared for the first time in the written judgment. In
response, the state argues that defendant failed to preserve
his argument in support of his first claim of error and that
Krause is not plainly wrong, and it concedes that the trial
court erred in imposing the two fees in the judgment that
were not announced in open court.
         As to defendant’s first assignment of error, we
assume without deciding that his argument is preserved
and conclude that he has not met his burden to establish that
Krause is plainly wrong. We therefore reject that assignment
of error. As to defendant’s second and third assignments of
error, we accept the state’s concession that the trial court
erred in imposing the fees, because the record shows that the
trial court intended to waive all other fees aside from those
announced at sentencing. See State v. Sankey, 

, 847, 

 (2018) (accepting the state’s concession
and reversing financial penalties that were imposed for the
first time in the judgment where the record was clear that
the court intended to waive them). Accordingly, we reverse
the portions of the judgment imposing those fees and other-
wise affirm.
         We review a trial court’s denial of a motion to sup-
press for legal error and are bound by the court’s explicit
and implicit factual findings if evidence in the record sup-
ports them. State v. Keck, 

, 

 (2023). The relevant facts are few and undisputed. An
officer stopped defendant around 1:30 a.m. to investigate
traffic violations. The officer observed signs that defendant
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was impaired by alcohol and saw fresh marijuana and par-
aphernalia in the car. The officer asked for and received
defendant’s consent to perform field sobriety tests (FSTs).
Defendant got out of his car and performed the FSTs near
the front of the officer’s patrol car. The officer then arrested
defendant for DUII, handcuffed him, and placed him in the
back of the patrol car. Within minutes of defendant’s arrest,
officers searched his car for evidence related to DUII—spe-
cifically, alcohol and marijuana—and discovered a container
of cocaine.
        Defendant filed a motion to suppress evidence
seized during the traffic stop. At the suppression hearing,
defendant argued that the search of his car was not justified
incident to his arrest for DUII because the search was not
reasonable in time, scope, and intensity. Specifically, defen-
dant argued that it was not reasonable to search his car for
evidence of drugs because the probable cause to arrest him
for DUII was based on alcohol impairment.
         The trial court denied defendant’s motion. The
court determined that the officer developed probable cause
to arrest defendant for DUII after he completed the FSTs
and that the search of defendant’s car for evidence of alco-
hol and marijuana was justified as a search incident to that
arrest. On appeal, defendant assigns error to that ruling.
         We begin with the relevant legal principles. Article I,
section 9, of the Oregon Constitution guarantees “the right
of the people to be secure in their persons, houses, papers,
and effects, against unreasonable search, or seizure.”
“[A] search or seizure conducted without a warrant is per
se unreasonable, unless that search or seizure falls within
one of the specifically established and well delineated excep-
tions to the warrant requirement.” State v. Fulmer, 

, 

 (2020) (internal quotation marks and
citation omitted). One such exception is a search incident to
arrest, which must relate to a crime that there is probable
cause to believe the arrestee has committed, and it must be
reasonable in scope, time, and intensity. State v. Owens, 

, 

 (1986); State v. Caraher, 

, 

 (1982). “A warrantless search inci-
dent to arrest can be made for any of three purposes: (1) to
122                                            State v. Stevens

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, 

, 

 (2015) (citing
State v. Hoskinson, 

, 

 (1994)).
         In Krause, we explained that only “[t]he first two
of those purposes underlying the exception to the warrant
requirement relate, in some ways, to exigency,” but that “the
same is not true of the third basis for a search incident to
arrest” (i.e., to discover evidence of the crime of arrest). 

. In that case, a police officer discovered mari-
juana during an inventory of the defendant’s car, and the
officer arrested the defendant for possession of marijuana
within 1,000 feet of a school. 

. The officer then
searched a closed container found in the defendant’s car and
found additional controlled substances. 

         On appeal, the defendant argued that the officer’s
warrantless search of her car was not a valid search incident
to arrest because she was already out of the car when the
officer developed probable cause to arrest her and therefore
no longer had control over the closed container. 

.
Reviewing our prior cases on searches incident to arrest, we
disagreed and explained that a search to discover evidence
of the crime of arrest “may be justified even if the defendant
has been removed from the area in which the officer believes
that evidence may be located.” 

 (discussing State
v. Washington, 

, 

 (2014), State v.
Clew, 

, 

 (2003), State v. Burgholzer,

, 

 (2002), and State v. Augard,

, 

 (1993)). We held that a search
incident to arrest conducted for the purpose of discovering
evidence of the crime of arrest “will comport with Article I,
section 9, even though the defendant no longer has control
over the area searched, as long as the evidence reasonably
could be found in that area and the search is otherwise rea-
sonable in time, scope, and intensity.” 

 Under the circum-
stances of that case, we concluded that the search of the
closed container found in the defendant’s car was reasonable
in time, scope, and intensity because the search occurred
immediately after the officer developed probable cause for
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the defendant’s arrest, and the defendant had exited the car
only shortly before that occurred. 

.
         In dissent, Judge Egan disagreed with the major-
ity’s conclusion that a search incident to arrest to discover
evidence of the crime of arrest is not based on exigency.

 (Egan, J., dissenting). The dissent reasoned that
“[e]xigency is the backbone of the search-incident-to-arrest
exception to the warrant requirement,” and that the court
should therefore not take a “categorical approach” but
instead “consider the individual circumstances of each case
prior to determining whether the police may search the inte-
rior of a vehicle, and any closed containers within it, upon
the arrest of a driver.” 

 (Egan, J., dissenting). In
the dissent’s view, “[t]he implication of the majority’s view
that exigency is not necessary to justify a search incident to
arrest to obtain evidence of the crime of arrest is that, once
such a search commences, the presumption that a warrant
is required is lifted and the search effectively has no limits,”
reducing the warrant requirement of Article I, section 9, “to
a nullity.” 

 (Egan, J., dissenting).
         Returning to the parties’ arguments in this case,
defendant contends that Krause is plainly wrong because,
in his view, it construed and applied the exception to the
Article I, section 9, warrant requirement for a search inci-
dent to arrest beyond the scope of its animating purpose:
exigency. In defendant’s view, exigency animates all three
purposes for which a lawful search incident to arrest may
be conducted and a search incident to arrest to discover evi-
dence of the crime of arrest must therefore be limited to evi-
dence that reasonably could be concealed on the arrestee’s
person or in the belongings in their immediate possession
at the time of the arrest. That is so, defendant contends,
because the warrant exception does not apply when the
search can be delayed to obtain a warrant.
         Defendant first argues that Krause was incorrectly
decided under then-existing case law. Defendant points to
Mazzola, where the Supreme Court characterized the search
incident to arrest doctrine as one that “exists because ‘[a]n
arrest * * * creates a type of exigency justifying a warrant-
less search of the arrested person,’ ” 

 (quoting
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State v. Milligan, 

, 

 (1988)), and
explained that “where a warrantless search for evidence of
the crime of DUII is supported by probable cause to arrest
the defendant, the issue of exigency should be assessed in
light of the reasonableness of the search in time, scope, and
intensity.” Id. at 819-20. Defendant also argues that Krause
cannot be reconciled with subsequent Supreme Court deci-
sions in Fulmer and State v. McCarthy, 

, 

 (2021), “which have proven its central assumption to be
erroneous,” viz., “that a search incident to arrest for evidence
of a crime can be untethered from the exigency rationale.”
In defendant’s view, “[i]n light of Fulmer and McCarthy, we
now know that warrant exceptions must be strictly limited
to their animating purposes, and the Supreme Court’s repu-
diation of the automobile exception [in McCarthy] urges a
refocusing of the search-incident-to-arrest exception on its
animating exigency rationale.”
         The state responds, first, that defendant failed to
preserve the argument he advances on appeal because it is
qualitatively different than the argument that he made to
the trial court and the purposes of preservation have not
been served in this case. The state further contends that,
in any event, Krause is not plainly wrong. In the state’s
view, the text and history of Article I, section 9, and early
Supreme Court case law establish that the rationale under-
lying a search incident to arrest to discover evidence of the
crime of arrest is not exigency but instead “the general idea”
that such searches “are not ‘unreasonable.’ ” The state points
to Owens and Caraher, which upheld searches incident to
arrest for evidence relevant to the crime of arrest that were
“reasonable” in the totality of the circumstances. See Owens,

 (explaining that a search incident to arrest of
“personal ‘effects,’ found on or immediately associated with
the arrestee” is permitted “when it is reasonable to believe
that evidence of a crime for which the person was arrested
could be concealed there,” and that “[t]he test is the reason-
ableness of the search in light of the circumstances of the
particular case”); Caraher, 

 (explaining that a
search incident to arrest for evidence of the crime of arrest
is permitted “so long as it is reasonable in light of all the
facts”).
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        Assuming without deciding that defendant’s argu-
ment is preserved, we conclude that he has not met his bur-
den to establish that Krause is plainly wrong.
         The “plainly wrong” standard is a “rigorous stan-
dard grounded in presumptive fidelity to stare decisis.”
State v. Civil, 

, 

 (2017).
Accordingly, we begin with “the assumption that our
prior cases were decided correctly, and the party urging
us to abandon precedent must affirmatively persuade us
to the contrary that a decision is plainly wrong.” State v.
McKnight, 

, 

, rev den,

 (2018) (internal quotation marks and citation
omitted). Further, where a party is relying on subsequent
case law from a higher court for its argument that a case
is plainly wrong, “[i]t must ‘plainly be the case’ that sub-
sequent Supreme Court decisions undercut the validity of
prior Court of Appeals decisions before we will overrule our
precedents.” State v. Woods, 

, 

, rev den, 

 (2022) (quoting State ex rel Maney v.
Hsu, 

, 

, rev den, 

(2021)). Whether one of our cases remains good law in light of
a subsequent Supreme Court decision turns on “whether the
Supreme Court’s decision overrules our prior holding and, if
it does not, whether the court’s analysis demonstrates that
our prior decision is ‘plainly wrong,’ such that we should
overrule it ourselves.” 

 (internal quotation marks, cita-
tion, and brackets omitted).
         Applying that standard, we are not persuaded that
Krause is plainly wrong, either under then-existing case
law or in light of subsequent Supreme Court decisions. “[T]o
be ‘plainly wrong’ a holding must first be wrong,” not sim-
ply one about which reasonable minds can disagree. Civil,

; see also Farmers Ins. Co. v. Mowry,

, 

 (2011) (“We will not depart
from established precedent simply because the personal
policy preferences of members of the court may differ from
those of our predecessors who decided the earlier case.”
(Internal quotation marks, citation, and brackets omitted)).
The parties’ arguments in this case demonstrate the ten-
sion that exists in Supreme Court case law characterizing
126                                          State v. Stevens

the underlying rationale of the search incident to arrest
doctrine as one based on reasonableness in light of all the
facts or one grounded solely in exigency. That tension is also
evident in the fractured decision in Krause. But defendant
has not established that Krause is plainly contrary to con-
trolling Supreme Court precedent, and defendant largely
echoes the dissent in Krause, which the majority necessar-
ily considered and rejected. Further, defendant’s contention
that the reasoning in Fulmer and McCarthy casts doubt on
Krause depends on the premise, which Krause considered
and rejected, that all three purposes of a search incident
to arrest are grounded in exigency. Accordingly, the court’s
analysis in those cases does not persuade us that our hold-
ing in Krause is plainly wrong. Finally, because Fulmer and
McCarthy involved different warrant exceptions, neither
case overruled our holding in Krause regarding the search
incident to arrest exception. See McCarthy, 

-
32 (automobile exception); Fulmer, 

 (inventory
exception). We therefore reject defendant’s first assignment
of error.
        Portions of the judgment ordering defendant to pay
a “$40.00 community service fee” and a “supervision fee”
reversed; otherwise affirmed.