Defendant petitions for reconsideration of our decision in
State v. Parker,
In framing our analysis at the beginning of our opinion, we explained that defendant had also raised a federal constitutional challenge, but that we would not reach that contention because our disposition rested on state constitutional grounds:
“Defendant also contends that he was unlawfully seized under the Fourth Amendment to the United States Constitution. Because we remand under Article I, section 9, *416 of the Oregon Constitution, we do not reach defendant’s federal constitutional claims. See MacPherson v. DAS,340 Or 117 , 125-26,130 P3d 308 (2006) (Oregon courts analyze state constitutional challenges before turning to federal constitutional challenges).”
We then addressed the proper application of Article I, section 9, to the circumstances of defendant’s encounter with the police, applying the analysis of
State v. Ashbaugh,
In the final paragraph of our opinion, we prescribed the scope of remand:
“If the court finds that the state has proved that defendant did not have the requisite subjective belief, the court should reinstate defendant’s conviction. If the court determines that defendant did subjectively hold that belief, however, the evidence found during the search of defendant’s person must be suppressed.”
Id. at 617 (emphasis added).
The gravamen of defendant’s argument on reconsideration is that our instruction to the trial court was incorrect because we should have directed the trial court that, if it renders a finding adverse to defendant as to the Holmes “type (b)” subjective component, it cannot reinstate his conviction unless it also considers, and rejects, his Fourth Amendment arguments. Defendant does not contend that we should have reached his Fourth Amendment contentions on appeal before directing a remand.
Defendant’s position is puzzling. In moving to suppress, defendant did invoke the Fourth Amendment, albeit in cursory fashion (see below) — and the trial court, in denying *417 suppression, necessarily rejected defendant’s reliance on the Fourth Amendment. It makes no sense to remand to the trial court with an explicit direction to consider a federal constitutional challenge that it has already rejected. Indeed, such a direction on remand would only make sense, practically from defendant’s perspective, in order to give defendant the opportunity to raise a “new and improved” Fourth Amendment argument to the trial court — in effect, to give defendant a “second bite” at the federal constitutional “apple” in the context of a remand necessitated solely by the exigencies of the state constitutional analysis. That we will not do.
What does make sense, prudentially and practically, is for us to now consider defendant’s Fourth Amendment challenge, instead of requiring defendant to reiterate that challenge on a second appeal in the event that his conviction is reinstated on remand. Not coincidentally, reaching defendant’s federal constitutional contentions now would comport with our course in Ashbaugh.
In
Ashbaugh,
as here, we similarly remanded to the trial court for a finding of defendant’s subjective belief under a
Holmes
“type (b)” inquiry with instruction to reinstate defendant’s conviction should the trial court find defendant did not have the requisite subjective belief.
We turn, then, to defendant’s federal constitutional challenge. That challenge, as framed on appeal, was unpre-served. Defendant’s three-sentence Fourth Amendment argument in his written motion to suppress, which was never again raised or argued at the suppression hearing, was so undeveloped that it failed to alert the trial court as to the substance of the contention now being advanced on appeal.
See State v. Wyatt,
*418 Reconsideration allowed; former opinion modified and adhered to as modified.
Notes
In
State v. Holmes,
“(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.”
Defendant raises an additional ground for reconsideration, which we reject without discussion.