State v. Harmon

No. 665             December 20, 2023                    639

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              BRITTANY LYNN HARMON,
                  Defendant-Appellant.
            Washington County Circuit Court
           21CR17744, 20CR52167, 21CR20302;
           A177992 (Control), A177993, A177994

   Ricardo J. Menchaca, Judge.
   Argued and submitted October 27, 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 Case Number 21CR17744, conviction on Count 1
reversed and remanded. In Case Numbers 20CR52167 and
21CR20302 affirmed.
640   State v. Harmon
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 (2023)                                          641

          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 back-
pack 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 inci-
dent to that arrest, the officers found four or five more identi-
fication 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
   1
     Defendant also appeals judgments in case numbers 20CR52167 and
21CR20302 but raises no assignments of error with respect to those judgments.
642                                          State v. Harmon

suppress the evidence derived from the search of her back-
pack, 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) offi-
cer 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, 

,

 (1993). We are bound by the trial court’s fac-
tual findings if there is constitutionally adequate evidence
to support them. State v. Edwards, 

, 

, rev den, 

 (2022) (citing Ehly, 

).
         Article I, section 9, of the Oregon Constitution pro-
tects individuals’ privacy and possessory interests. State
v. Luman, 

, 

 (2009). A war-
rantless 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 war-
rant requirement applies. State v. Bunch, 

, 

 (2020). The state has the burden of proving
that a valid exception applies. State v. Barber, 

, 

 (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 offi-
cer’s safety; (2) to prevent the destruction of evidence; or (3)
to discover evidence of the crime of arrest.” State v. Mazzola,
Cite as 

 (2023)                               643

, 

 (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 require-
ment 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,

, 

 (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, 

, 

 (2020). And an officer’s subjective
concerns must be from an immediate threat. 

         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 hand-
gun 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 back-
pack. 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 jus-
tified only when the area searched is still within the defen-
dant’s control, so that the defendant would be able to obtain
a weapon stashed in the area[.]” State v. Krause, 

, 

 (2016), rev den, 

 (2017). But
here, the officers did not search defendant’s backpack until
after the handgun was secured, an officer stood with defen-
dant 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.
644                                           State v. Harmon

        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, 

, 

(1982). A valid arrest requires police to have both subjective
and objective probable cause to believe that the person com-
mitted a crime. State v. Owens, 

, 

 (1986). An officer’s belief that the person “possibly” com-
mitted a crime is insufficient to satisfy the subjective prong
of probable cause. State v. Demus, 

, 

 (1996). “The test is not simply what a reasonable
officer could have believed when he conducted a warrant-
less search or seizure, but it is what this officer actually
believed[.]” Owens, 

 (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 discuss-
ing the fact that they did not believe her, and one of the offi-
cers 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 find-
ing. 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 back-
pack 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 deci-
sion, defendant argues that she is entitled to suppression
because the search of her backpack exceeded the permissi-
ble 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
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 (2023)                            645

the scope of the search exceeded the space within the driv-
er’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 search incident to arrest is
“reasonableness.” Owens, 

. For a search of an
automobile incident to arrest to be lawful, it must be reason-
able in time, scope, and intensity. State v. Burgholzer, 

, 

 (2002). A search of a vehicle
incident to arrest is reasonable in scope when it is confined
to the space that was in the “immediate control of the sus-
pect at the time of the arrest.” State v. Brownlee, 

, 

 (2020) (internal quotation marks
omitted); State v. Washington, 

, 

 (2014). That scope also extends to items in the arrestee’s
control and where evidence of the crime could reasonably
be concealed, not just possibly be concealed. Ramirez, 305
Or at 215; Washington, 

. It is permissible
to search closed compartments or containers in the passen-
ger compartment of a vehicle, provided that evidence of the
crime could reasonably be concealed in the parts of the car
searched. 

.
         Under Oregon law, vehicle passengers maintain an
independent, constitutionally protected privacy interest,
which is not diminished merely upon entering a vehicle with
others. See State v. Tucker, 

, 

(2000) (rejecting the argument that “a passenger in an auto-
mobile has no protected privacy interest or property interest
in the automobile or its contents”); see also State v. Snyder,

, 

 (2016) (holding that a
passenger held a protected interest in a vehicle and its con-
tents); State v. Silva, 

, 

 (2000)
(holding that both a driver and a passenger maintained
constitutionally protected interests in a duffel bag found in
646                                          State v. Harmon

a vehicle in which they had both been traveling); State v.
Fulmer, 

, 

 (2020) (protecting
a vehicle occupant’s constitutionally protected privacy and
possessory interests in readily retrievable personal items
within a vehicle).
         In resolving the tension between privacy rights of
passengers and law enforcement’s need to search for evi-
dence of a crime after arresting a driver, we have empha-
sized the importance of a nexus between an arrestee and
the item to be searched incident to arrest. For example, in
Burgholzer, we upheld a lawful search of a cigarette pack
incident to the defendant’s arrest for driving under the influ-
ence of a controlled substance. 

. When
the police stopped the defendant, he had a cigarette in his
mouth, and a pack of cigarettes was located between the
driver’s seat and the center console. 

. We upheld
the search, because the cigarette pack “was plainly within
[the] defendant’s immediate possession shortly before the
arrest and, consequently, could be said to have been inti-
mately associated with [the] defendant at the time of his
arrest.” Id.; see also State v. Hartley, 

,

, rev den, 

 (1989) (holding that a
car trunk was lawfully searched incident to the defendant’s
arrest when officers had seen the defendant close the trunk
just before his arrest and learned from witnesses that the
defendant had placed a gun in the trunk); State v. Askay,

, 

, rev den, 

(1989) (upholding the search of a rolled-up paper bag that
the defendant had handed to another person immediately
prior to arrest).
         Here, the state did not meet its burden to demon-
strate that the search of defendant’s backpack qualified
for the search-incident-to-arrest exception to the war-
rant requirement, because it was not immediately associ-
ated with the driver or within the driver’s immediate con-
trol—it belonged to and was controlled by the passenger.
Defendant was holding the backpack at her side when the
officer ordered her to exit the vehicle, and the same officer
testified at the suppression hearing that he watched defen-
dant remove the backpack from her seat and place it on
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 (2023)                                                647

the floor before she exited the vehicle. The bodycam video
further reveals that defendant first looked to the backpack
when looking for her identification card before seeing her
wallet on the seat. The police knew the backpack belonged
to defendant, it was within her possession at the time of the
driver’s arrest, and there was no independent connection
between it and the driver. Critically—and unlike the cases
discussed above—there was no nexus between the driver
and defendant’s backpack other than their presence inside
the car, and it certainly cannot be said that the backpack
was “intimately associated” with or in the “immediate con-
trol” of the driver at the time of his arrest. The arrest of
a person in a vehicle, without more, does not provide the
authority to search through the personal effects of another,
nonarrested individual. To construe the search-incident-to-
arrest exception so broadly would chip away at the narrow
limits of the exception at the expense of constitutionally pro-
tected privacy rights. Accordingly, we hold that police may
not search a nonarrested vehicle passenger’s property if it
clearly belongs to the passenger, is within the passenger’s
control, and no independent facts connect it to the arrestee.2
Because the search of the backpack exceeded the scope of a
valid search incident to arrest for evidence of the crime of
arrest, the trial court erred in denying defendant’s motion
to suppress the evidence that flowed from that search.
        In Case Number 21CR17744, conviction on Count 1
reversed and remanded. In Case Numbers 20CR52167 and
21CR20302 affirmed.




    2
       We find support for that conclusion in the reasoning employed by a neighbor-
ing jurisdiction. In State v. Parker, 139 Wash 2d 486, 501, 

 (1999),
the Washington Supreme Court, consistent with the Washington Constitution’s
recognition of individuals’ privacy rights, rejected the argument “that personal
belongings clearly and closely associated with nonarrested vehicle occupants are
subject to full blown police searches merely because some other occupant in the
vehicle is arrested.” The court explained that “vehicle passengers hold an inde-
pendent, constitutionally protected privacy interest. This interest is not dimin-
ished merely upon stepping into an automobile with others.” Id. at 496, 

.