State v. Hernandez , 299 Or. App. 544 ( 2019 )

544
Argued and submitted September 29, 2017; reversed and remanded
October 2, 2019
STATE OF OREGON,
Plaintiff-Appellant,
v.
CESAR ZAVALA HERNANDEZ,
Defendant-Respondent.
Washington County Circuit Court
C152457CR; A162396
449 P3d 878
The state appeals an order granting defendant’s motion to suppress evidence
found in defendant’s car after his arrest for interfering with a peace officer.
Defendant was arrested after he repeatedly reached under his dashboard during
a traffic stop despite a peace officer’s orders that he not do that. The trial court
concluded that the search was not a valid search incident to arrest on the ground
that the officer could not reasonably have believed that he would find evidence of
the crime of arrest because he already had all evidence necessary to establish a
prima facie case for interfering with a peace officer. On appeal, the state argues
that the search was a valid search incident to arrest because the officer looked
under the dashboard to determine defendant’s motive for disobeying the order.
Held: The trial court erred in granting defendant’s suppression motion. It was
reasonable for the officer to believe that evidence of defendant’s motive would
be concealed in the location where defendant reached, and evidence bearing on
defendant’s motive for disobeying the officer’s orders was reasonably related to
the crime of arrest. Therefore, the officer’s search was a valid search incident to
arrest.
Reversed and remanded.
Beth L. Roberts, Judge.
Leigh A. Salmon, Assistant Attorney General, argued
the cause for appellant. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Erin J. Snyder-Severe, Deputy Public Defender, argued
the cause for respondent. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
Cite as 299 Or App 544 (2019) 545
ARMSTRONG, P. J.
Reversed and remanded.
546 State v. Hernandez
ARMSTRONG, P. J.
The state appeals an order granting defendant’s
motion to suppress evidence found in defendant’s car follow-
ing his arrest for interfering with a peace officer. Because we
conclude that the officer’s search was related to the crime of
arrest and reasonable under the circumstances, we reverse
and remand.
When reviewing a trial court’s decision on a motion
to suppress, we are bound by that court’s factual findings “if
there is constitutionally sufficient evidence in the record to
support those findings.” State v. Ehly, 317 Or 66, 75, 854 P2d
421 (1993). Under that standard of review, the facts are as
follows.
Officer Mace stopped defendant for several traffic
infractions. Defendant got out of his car after Mace stopped
him, but he then sat back down in the driver’s seat, leaving
the door open. Because the car door remained open, Mace
conducted the stop while standing in front of the “wedge”
between the open door and the vehicle frame. During his
interaction with Mace, defendant appeared extremely ner-
vous; he misspelled his last name and told Mace that he had
left his license in his truck, so he did not have it with him in
the car that he was driving.
Mace also saw defendant reach several times beneath
the dashboard of the car. Mace testified that defendant
appeared to be reaching toward the area under the driver’s
side of the dashboard where the fuse box would be located.
Fearing for his safety, Mace told defendant to stop reaching
under the dash. Defendant responded that he was reaching
for his license, which contradicted his earlier statement that
he had left his license in a different vehicle. Less than a
minute later, defendant quickly reached under the dash for
a fourth and final time. At that point, Mace grabbed defen-
dant before defendant’s hand disappeared from view under
the dashboard because he feared that defendant was reach-
ing for a weapon.
Mace then removed defendant from the vehicle to
arrest him for interfering with a peace officer and, with
Cite as 299 Or App 544 (2019) 547
the assistance of his partner, placed defendant against the
side of the vehicle to handcuff him. While defendant was
still pinned against the vehicle, Mace leaned in through
the driver’s side doorway and looked underneath the dash
where defendant had been reaching. Mace saw a plastic
baggie sticking out of the fuse box, which Mace retrieved.
Inside the plastic baggie was a golf-ball-sized piece of meth-
amphetamine.
After finding the methamphetamine in the vehicle,
Mace called for a drug-detecting dog. The officer handling
the dog testified that he obtained consent from defendant to
conduct additional searches of the car; defendant testified to
the contrary. During those searches, the officer discovered
more methamphetamine and a backpack. The officer opened
the backpack and discovered additional drugs and related
paraphernalia. The backpack also contained a small safe,
which the officer pried open. He found methamphetamine,
cocaine, and a digital scale inside the safe.
Before trial, defendant moved to suppress all of the
evidence discovered in the vehicle search on the ground that
Mace’s initial search under the dashboard was unlawful,
and all subsequent searches were derivative of that unlaw-
ful initial search. The state argued that the initial search
was lawful under the “search incident to arrest” exception
to the warrant requirement because Mace was looking for
evidence that was reasonably related to the arrest. The trial
court granted defendant’s motion, concluding that the ini-
tial search was not justified as a search incident to arrest
because the officer already had all the evidence necessary
for the crime of arrest, namely interfering with a peace
officer.
On appeal, the state maintains that the search was
permissible as a search incident to a lawful arrest. The state
argues that Mace’s search was permissible because he was
looking for evidence that was related to the charged offense
of interfering with a peace officer—specifically, Mace looked
where defendant had been reaching to determine defen-
dant’s motive in continuing to reach under the dash after
being ordered to stop doing that. Under ORS 162.247(1)(b),
it is unlawful to refuse to obey a lawful order given by a
548 State v. Hernandez
known peace officer.1 Defendant argues that the search was
not reasonable because any evidence for which the officer
could have been looking was only minimally relevant to the
crime of arrest.
We review for legal error a trial court’s decision to
grant a defendant’s suppression motion. Ehly, 317 Or at 75.
Here, we must determine whether Mace’s search under the
dash of defendant’s car was a valid search incident to arrest
under that exception to the warrant requirement embodied
in Article I, section 9, of the Oregon Constitution. See State v.
Bridewell, 306 Or 231, 235, 759 P2d 1054 (1988) (a warrant-
less search is per se unreasonable unless it “fall[s] within one
of the few specifically established and carefully delineated
exceptions to the warrant requirement”). Under that excep-
tion, officers may conduct a warrantless search incident to a
defendant’s arrest when (1) the search relates to the crime for
which the officer has arrested the defendant or a crime for
which the officer has probable cause to believe that the defen-
dant has committed and (2) the search is reasonable under
the totality of the circumstances. State v. Owens, 302 Or 196,
204, 729 P2d 524 (1986). There are three lawful reasons to
conduct a search incident to arrest: “(1) to protect the officer’s
safety; (2) to prevent the destruction of evidence; and (3) to
discover evidence of the crime of arrest.” State v. Washington,
265 Or App, 532, 536, 335 P3d 877 (2014). However, if an
officer has already secured the defendant before the search,
then the only lawful justification for the search is to discover
evidence related to the crime of arrest. Id.Here, because defendant was secured when Mace
searched under the dashboard, the only possible lawful jus-
tification for the search was to discover evidence related to
the crime for which Mace had probable cause to arrest defen-
dant—viz., interfering with a peace officer by refusing to
obey a lawful order, ORS 162.247(1)(b). The state contends
that Mace was searching for evidence related to the crime
1
ORS 162.247(1)(b) provides, as relevant:
“(1) A person commits the crime of interfering with a peace officer or
parole and probation officer if the person, knowing that another person is a
peace officer or a parole and probation officer * * *
“* * * * *
“(b) Refuses to obey a lawful order by the peace officer or parole and pro-
bation officer.”
Cite as 299 Or App 544 (2019) 549
of arrest because he sought to find evidence of defendant’s
motive for ignoring the lawful order, viz., evidence of the thing
that defendant was reaching to obtain or hide. Defendant
argues that such evidence would not be sufficient to justify a
search incident to arrest because motive is “minimally rele-
vant” to the crime of interfering with a peace officer.
We agree with the state that evidence of a defen-
dant’s motive for refusing to obey a lawful order is “reason-
ably related to” the crime of interfering with a peace officer.
Adopting defendant’s proposed standard would strictly limit
police to searching only for evidence supporting the prima
facie elements of the crime of arrest, which would be more
restrictive than the “reasonably related to” standard identi-
fied in our case law for such searches. See, e.g., Owens, 302
Or at 202. We conclude that evidence of defendant’s motive
is reasonably related to the crime of interfering with a peace
officer because it indicates that defendant had a reason to
disobey the lawful order. Evidence that defendant had a rea-
son to disobey the order would tend to show that defendant
knowingly and intentionally refused to obey Mace’s order,
or did reach under the dash. See State v. Ruggles, 238 Or
App 86, 91, 242 P3d 643 (2010) (to violate ORS 162.247, the
“person must refuse to obey the order, and that verb implies
knowledge and intent (in contrast, for example, to fail to
obey”) (emphases in original)). That evidence would support
the state’s case against defendant by explaining defendant’s
actions and thereby tending to show that defendant had
unlawfully refused to obey the order.
In Fesler, the defendant was stopped for a traffic
violation and was taken into custody for driving with a sus-
pended license and for providing a false name to the officer.
State v. Fesler, 68 Or App 609, 611, 685 P2d 1014, rev den,
297 Or 547 (1984). The defendant’s crime of arrest did not
require the state to prove intent, but simply that the defen-
dant acted “knowingly.”2 After placing the defendant in the
2
The defendant in Fesler was convicted under former ORS 482.610(4),
repealed by Or Laws 1983, ch 338, § 978, which provided:
“No person knowingly shall * * *
“* * * * *
“(4) Use or give a false or fictitious name, address, or date of birth to any
police officer for any violation of the motor vehicle laws.”
550 State v. Hernandez
patrol car, the officer searched the defendant’s vehicle for
the defendant’s wallet. Id. While searching the back seat,
the officer discovered marijuana. Id. Even though posses-
sion of identification was not a necessary element of the
defendant’s crime of arrest, viz., providing a false name to a
police officer, we upheld the search as related to that offense
for two reasons: The search would “serve to identify defen-
dant” after he misled the officers about his identity, and,
if the officers found that he had hidden his wallet before
interacting with the police, then that “would further tend
to show defendant’s consciousness of guilt” and would help
to explain his motive for giving a false name. Id. at 613. We
determined that evidence bearing on the defendant’s men-
tal state was sufficiently “related to” the defendant’s crime
of arrest to justify a search incident to his arrest. See State
v. Smith, 82 Or App 636, 640, 729 P2d 10 (1986), rev den,
302 Or 614 (1987) (“[In Fesler,] hiding the wallet would tend
to show that the defendant knew that his license was sus-
pended, which in turn would explain his motives for giving
a false name.”).
As in Fesler, we conclude that defendant’s motive for
reaching under the dashboard “tend[ed] to show” that he
reached under the dash and knowingly disobeyed the offi-
cer’s order, and evidence bearing on motive therefore was
related to his crime of arrest. Because defendant’s motive for
reaching under the dashboard was “related to” his crime of
interfering with a peace officer, it was “reasonable to believe
that evidence” of defendant’s crime of arrest could be found
there, and Mace was permitted to search that area incident
to defendant’s arrest. Owens, 302 Or at 202.
Defendant also argues that the search exceeded the
scope of the search-incident-to-arrest exception because the
crime of interfering with a peace officer “ordinarily has nei-
ther instrumentalities nor fruits.” See id. at 200 (“[I]f the
person is arrested for a crime which ordinarily has neither
instrumentalities nor fruits which could reasonably be con-
cealed on the arrestee’s person or in the belongings in his
or her immediate possession, no warrantless search for evi-
dence of that crime would be authorized as incident to that
arrest.”). The language from Owens on which defendant
Cite as 299 Or App 544 (2019) 551
relies was meant to highlight the larger point that the court
was making in Owens: To initiate a search incident to arrest,
“the arrest must be for a crime, evidence of which reason-
ably could be concealed on the arrestee’s person or in the
belongings in his or her immediate possession at the time of
the arrest.” Id. As discussed above, evidence of defendant’s
crime—specifically, evidence of his motive for disobeying
Mace’s order to stop reaching under the dash—“reasonably
could be concealed” under the dash, which was located “in
his * * * immediate possession.” We do not agree with defen-
dant’s assertion that the crime of interfering with a police
officer is a type of crime that would never justify conducting
a search incident to arrest to find evidence of the arrest-
ee’s crime. Instead, we consider the specific circumstances
surrounding Mace’s search of defendant’s car to determine
whether it was reasonable to believe that evidence reason-
ably related to the crime of arrest could be concealed in the
location being searched. Id. at 202 (“The test [for validity
of a search incident to arrest] is the reasonableness of the
search in light of the circumstances of the particular case.”).
A search that is related to the crime of arrest must
still be reasonable under the totality of the circumstances.
Id. In particular, a search must be reasonable in time, scope,
and intensity. Washington, 265 Or App at 537. A search is
reasonably limited in time when it occurs shortly after the
arrest. See State v. Zigler, 100 Or App 700, 704-05, 788 P2d
484 (1990) (upholding a search performed 45 minutes after
arrest when officer performed “necessary and appropri-
ate tasks in the interim”). A search is reasonably limited
in scope and intensity when it is confined to the area that
was in the immediate control of the defendant at the time of
the arrest and extends only to places where evidence of the
crime of arrest reasonably could be concealed. Washington,
265 Or App at 537.
Here, Mace searched the area under the dashboard
seconds after arresting defendant. The search was limited
in scope and intensity because Mace searched only the spe-
cific area that had been within defendant’s reach at the
time of arrest and that likely contained evidence of defen-
dant’s motive for reaching under the dashboard. As such,
552 State v. Hernandez
that search was reasonable under the totality of the circum-
stances and was a valid search incident to arrest. Hence, the
trial court erred in granting defendant’s motion to suppress.
Reversed and remanded.