328 P.3d 824
Or. Ct. App.2014Background
- Defendant was convicted of two counts of burglary in the second degree and two counts of criminal mischief in the first degree.
- On appeal, defendant challenges (1) the warrantless tow of his Jeep and the subsequent search warrant, (2) whether the search warrant was supported by probable cause, and (3) whether the tents on the PWB site qualify as a "building" under ORS 164.215.
- Police towed the Jeep to an impound lot without a warrant, relying on a Portland ordinance to justify the seizure as an administrative action.
- Lobaugh obtained a search warrant for the Jeep after linking the August break-in to the October scene via a 4x4 decal and a pH pen found in the Jeep.
- Trial court denied suppression motions; the state relied on PCC 16.30.220(H) and argued the tow was lawful; defendant argued the tow was unlawful and tainted subsequent evidence.
- The court ultimately vacated Counts 2 and 3 and remanded for a factual determination on whether the suppressed evidence would have been discovered absent the unlawful seizure; it affirmed the burglary judgment on the building issue for Counts 2 and 4.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Jeep illegally seized warrantlessly under administrative seizure rules? | State: tow was authorized by PCC 16.30.220(H) as administrative seizure. | Defendant: no other disposition; tow driven by criminal-suspect motivation; seizure invalid. | Warrantless seizure unlawful; remand to assess independent discovery. |
| Did the unlawful seizure taint the evidence later found under the search warrant? | State: evidence may be admissible if obtained independently of the seizure. | Defendant: seizure connected to decal/pH pen evidence; suppression required. | Remand to determine whether evidence would have been discovered absent the seizure. |
| Was the search warrant supported by probable cause or was information stale? | State: stale information not fatal; corroborating observations connected to October break-in. | Defendant: information from August is too stale to support probable cause for October search. | Probable cause supported; not stale as a matter of law; warrant valid. |
| Do the tents at PWB constitute a "building" under ORS 164.215 for burglary? | State: tents adapted for Carollo's water-testing business; qualify as buildings. | Defendant: tents do not fit ordinary meaning; not adapted for business use. | Tents sufficiently adapted; count convictions preserved. |
| If the above is decided, should Counts 2 and 3 be vacated pending suppression ruling, and what about Count 4? | State: no automatic vacatur; proceed with counts if warranted. | Defendant: suppression error requires reversal of related convictions. | Counts 2 and 3 vacated and remanded for suppression-determinative proceedings; Count 4 affirmed. |
Key Cases Cited
- State v. Davis, 295 Or 227 (1983) (outlines warrant exceptions; per se unreasonableness of warrantless seizures)
- Katz v. United States, 389 U.S. 347 (1967) (exclusionary principles; warrant requirements)
- State v. Atkinson, 298 Or 1 (1984) (administrative seizure concepts; need for law authorization)
- State v. Stinstrom, 261 Or App 186 (2014) (inventory search requirements; relationship to administrative seizure)
- State v. Gaunce, 114 Or App 190 (1992) (discretion in administrative seizures; suppression standards)
- State v. Penney, 252 Or App 677 (2012) (burden of proof on administrative seizure; hazard vs. suspect motive)
- State v. Smith, 327 Or 366 (1998) (illegality of seizure but admissibility if evidence obtained independently)
- State v. Johnson, 335 Or 511 (2003) (admission standards following suppression review)
- State v. Nollen, 196 Or App 141 (2004) (definition of building; adaptation of structure for business)
- State v. Webb, 262 Or App 1 (2014) (adaptation for carrying on business; considerations for building status)