State v. Saiz ( 2023 )

523
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted December 7, 2022, affirmed August 16, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
CYNTHIA ANTONIA SAIZ,
Defendant-Appellant.
Union County Circuit Court
19CR19118; A175647
Matthew B. Shirtcliff, Judge.
John Evans, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Affirmed.
524 State v. Saiz
MOONEY, J.
Defendant appeals from a judgment of conviction for
unlawful possession of methamphetamine, ORS 475.894.1
On appeal, she assigns error to (1) the trial court’s denial
of her motion to suppress evidence, and (2) the trial court’s
refusal to give a requested jury instruction explaining what
constitutes constructive possession. As explained below, nei-
ther assignment is well taken. A lengthy recitation of the
facts would not benefit the bench, the bar, or the public. We
affirm.
We first reject the second assignment, noting that a
trial court is “not required to give a requested instruction if
another instruction adequately addresses the issue.” State v.
Ashkins, 357 Or 642, 648, 357 P3d 490 (2015); see also State
v. Guzek, 358 Or 251, 276, 363 P3d 480 (2015), cert den, ___
US ___, 137 S Ct 1070 (2017) (trial court not required to
give requested instruction that is legally correct and sup-
ported by record if other instructions cover its substance).
The trial court gave the uniform criminal jury instruction
on constructive possession, UCrJI 1045. That was sufficient
under the circumstances here.
Moving to the first assignment, we review the
denial of a motion to suppress for legal error. State v. Brown,
293 Or App 772, 774, 427 P3d 221 (2018). We “accept as true
all findings of fact that the trial court expressly made, along
with those findings that may be presumed from the trial
court’s ultimate conclusion, as long as those findings are
supported by evidence in the record.” State v. Madden, 363
Or 703, 706, 427 P3d 157 (2018). We state the pertinent facts
in accordance with that standard to supply context for our
decision.
Defendant was riding as a passenger in her car
when an Oregon State Trooper, McDowell, stopped the vehi-
cle for two traffic violations—suspended registration and
unsafe lane change. Once stopped, defendant voluntarily
stated that the car was hers. When asked for identification,
1
ORS 479.894 provides, as pertinent here:
“(1) It is unlawful for any person knowingly or intentionally to possess
methamphetamine unless the substance was obtained directly from, or pur-
suant to, a valid prescription * * *.”
Nonprecedential Memo Op: 327 Or App 523 (2023) 525
the driver, Garcia, said he did not have his wallet with him,
and he gave his brother’s name to the trooper as if it were
his own name. Defendant provided her ID card. McDowell
returned to his vehicle and ran both names through dis-
patch. The description and photograph of the person whose
name was provided as the driver’s name caused him to sus-
pect that he had been given a false name. He returned to
defendant’s car and Garcia acknowledged his true identity.
McDowell arrested Garcia for providing false infor-
mation to a peace officer and escorted him over to the patrol
car. While doing so, McDowell spoke to defendant saying,
“stand by, ma’am.” Garcia told McDowell that his wallet
was on the floorboard of the car, and with Garcia’s consent,
McDowell retrieved the wallet. McDowell ran Garcia’s crim-
inal history and learned that Garcia was a convicted felon,
on “abscond status,” that he was wanted for a parole viola-
tion, and that he had a “weapons” restriction attached to his
parole. Garcia also told McDowell that he had a pocketknife
in the center console of the car.
McDowell testified that, at that point, he returned
to the car to search for any evidence that Garcia might be
a felon in possession of a weapon. According to McDowell’s
testimony, when he returned to the car,
“[defendant] voluntarily stepped out. We obviously had
a problem; we didn’t have a valid driver. I was also seeing
criminal indicators that I’m trained to look for. And I asked
[defendant] if I could search her car, and she said, ‘Yes, sir.’
“So she was, I believe probably talking to the cover
officer, Senior Trooper Chris Davis, and I started on the
passenger side. I looked up, noticed a folded piece of paper
stuck in a piece of plastic between the visors from the pas-
senger side.
“I pulled that piece of paper out, unfolded it, and meth
started falling onto the passenger seat.
“I immediately went back up, handcuffed [defendant],
told her she was under arrest for possession of a controlled
substance, methamphetamine.”
McDowell asked Garcia whether he knew anything about the
methamphetamine and Garcia responded that he had some
526 State v. Saiz
methamphetamine “in a piece of paper.” It was McDowell’s
impression that Garcia was “taking the fall for [defendant.]”
He arrested defendant at that point.
In her first assignment of error, defendant contends
that the trial court erred when it denied her motion to sup-
press the methamphetamine as evidence. Defendant argues
that defendant was unlawfully stopped and that, because
her consent was obtained during that unlawful stop, the
subsequent search of the car was not constitutionally justi-
fied. The state does not contest that the record lacks suffi-
cient information to justify McDowell’s request for consent
to search the car under State v. Arreola-Botello, 365 Or
695, 451 P3d 939 (2019). We agree. The state argues that
the search was nevertheless lawful as a search incident to
Garcia’s arrest for violating the conditions of his parole.
Defendant counters that McDowell had already concluded
his investigation of Garcia when he conducted the search,
and that the search was therefore not justified as incident
to arrest. The question of preservation was raised at oral
argument of this appeal. We are satisfied that the state and
the defendant each preserved their respective arguments
regarding search incident to arrest and we, thus, proceed to
the merits.
Under Article I, section 9, of the Oregon Constitution,
a police officer may search a car incident to the arrest of the
driver for the purpose of looking for evidence of the crime
of arrest after the driver has been secured away from the
car. State v. Washington, 265 Or App 532, 536, 335 P3d 877
(2014). Such a search may serve to (1) protect the police offi-
cer’s safety, (2) prevent the destruction of evidence, or to
(3) discover evidence of the crime of arrest. State v. Krause,
281 Or App 143, 146, 383 P3d 307 (2016), rev den, 360 Or
752 (2017). Such a search must be reasonable in time, scope,
and intensity. State v. Delfino, 281 Or App 725, 727, 386 P3d
133 (2016), rev den 361 Or 525 (2017). The reasonableness of
a warrantless search for evidence of the crime of arrest is
further “constrained by three factors: (1) the crime of arrest,
(2) the nature of the evidence establishing that crime,
and (3) whether the location searched could reasonably be
understood to conceal such evidence.” State v. Ramirez, 305
Or App 195, 214-15, 468 P3d 1006 (2020).
Nonprecedential Memo Op: 327 Or App 523 (2023) 527
Here, Garcia was arrested for giving false informa-
tion to a peace officer. In the course of making that arrest,
McDowell retrieved Garcia’s wallet and identification which,
in turn, led to information that there was an outstanding
warrant for a parole violation, and Garcia was arrested for
violating parole as well. McDowell knew that as a felon,
Garcia would be subject to weapons restrictions, which he
confirmed through dispatch. Garcia told McDowell that he
had a knife in the car. McDowell did not know the details of
Garcia’s weapons restriction, and it appears from the record
that McDowell did not know the precise nature of the parole
violation for which Garcia was wanted.
A search incident to arrest is a recognized excep-
tion to the warrant requirement. State v. Edwards, 319
Or App 60, 64, 509 P3d 177, rev den, 370 Or 212 (2022). The
arrest must be lawful, either supported by a valid warrant
or probable cause. State v. Owens, 302 Or 196, 203, 729 P2d
524 (1986). Probable cause requires a subjective belief by
the officer that a crime was committed and that the officer’s
belief is objectively reasonable under the circumstances.
State v. Smith, 292 Or App 335, 340, 424 P3d 755, adh’d to as
modified on recons, 295 Or App 135 (2018). We conclude that
it was objectively reasonable for McDowell to believe that
Garcia had violated his parole. And, given that McDowell
had information that there was a knife in the car, he was
authorized to search the car for the knife and other evidence
of a parole violation. The trial court did not err in denying
defendant’s motion to suppress.
Affirmed.