State v. Durando, 323 P.3d 985

During a June 26, 2011 traffic stop Officer McNair asked defendant for license, registration, and insurance; defendant showed an expired Washington temporary permit.
McNair arrested defendant for failure to present a license, searched him incident to arrest, and found a hole‑punched expired hard copy license and a small bag of marijuana.
Defendant moved to suppress the items; the trial court denied the motion, and at trial the jury convicted him of failure to present a license and the court convicted him of possession of <1 ounce of marijuana.
Defendant, pro se, sought to introduce a Washington Department of Licensing printout showing he had a valid license on the stop date; the trial court excluded that printout for lack of authentication and later excluded witness testimony about the printout as hearsay.
On appeal the state conceded the pocket search was unlawful under Article I, §9 of the Oregon Constitution and that the marijuana conviction must be reversed, but argued the erroneous admission of the hole‑punched expired license was harmless as to the license offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the search incident to arrest lawful under Article I, §9?	Search was lawful incident to arrest for failure to present license.	Search was unlawful; suppression required.	Search was unlawful; no evidence officer had reasonable suspicion to justify more than a pat‑down.
Must the marijuana conviction be reversed given suppression error?	Concedes reversal required because marijuana was discovered during unlawful search.	Argues suppression error requires reversal.	Marijuana conviction reversed.
Was erroneous admission of the hole‑punched expired license harmless as to the license charge?	Admission harmless; jury already saw the expired temporary license defendant presented at the stop.	Admission may have prejudiced defendant’s statutory defense (ORS 807.570(3)).	Error was harmless; evidence was duplicative and unlikely to affect verdict.
Did the trial court err by excluding the DMV website printout for lack of authentication?	Trial court correctly excluded for inadequate authentication; exclusion upheld.	Defendant argues he authenticated by (1) inviting the court to view the website and (2) offering witness testimony that she printed the record.	No reversible error: defendant did not effectively request a judicial view and did not use the witness to authenticate before the court excluded the document; witness testimony was offered as hearsay and excluded.

State v. Hoskinson, 320 Or. 83, 879 P.2d 180 (Or. 1994) (limits lawful searches incident to arrest to officer safety, evidence destruction, or evidence of the charged crime)
State v. Bishop, 157 Or. App. 33, 967 P.2d 1241 (Or. Ct. App. 1998) (search incident to arrest for failure to display license is ordinarily limited to a weapons pat‑down)
State v. Owens, 302 Or. 196, 729 P.2d 524 (Or. 1986) (pat‑down for officer safety justified whenever person is taken into custody)
State v. Davis, 336 Or. 19, 77 P.3d 1111 (Or. 2003) (harmless‑error standard: affirm if little likelihood error affected verdict)
State v. Kayfes, 213 Or. App. 543, 162 P.3d 308 (Or. Ct. App. 2007) (harmless‑error analysis considers record as a whole and context)
State v. Timmermann, 220 Or. App. 458, 187 P.3d 744 (Or. Ct. App. 2008) (defense under ORS 807.570(3) is an ordinary defense; state bears burden to disprove once raised)