State v. Ferguson, 000666FE; A116493.

• Decision Date: 17 August 2005
• Docket Number: 000666FE; A116493.
• Parties: STATE of Oregon, Appellant, v. William Joel FERGUSON, Respondent.
• Court: Oregon Supreme Court

119 P.3d 794

201 Or. App. 261

STATE of Oregon, Appellant, v. William Joel FERGUSON, Respondent.

000666FE; A116493.

Court of Appeals of Oregon.

On appellant's petition for reconsideration March 16, 2005.

Respondent's response filed June 2, 2005.

Decided August 17, 2005.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General, for petition.

Jamesa J. Drake, Deputy Public Defender, Office of Public Defense Services, for response.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.

ORTEGA, J.

The state petitions for reconsideration of our decision in State v. Ferguson, 197 Or.App. 384, 105 P.3d 872 (2005), on the ground that it is in conflict with statements made in two prior opinions of this court: State v. Williams, 161 Or.App. 111, 984 P.2d 312 (1999), and State v. Sulser, 127 Or.App. 45, 871 P.2d 126 (1994). Our decision in Ferguson holds that the state invited error when, after losing a suppression motion, the state advised the trial court to dismiss the charges against defendant pursuant to ORS 136.120. Ferguson, 197 Or.App. at 389-90, 105 P.3d 872. As explained below, we adhere to our analysis, as modified, and modify the disposition.

We briefly recount the historical and procedural facts at issue. Knapp, who had just been arrested, identified defendant as her drug supplier and, according to the state, agreed to assist police in arresting him. The police recorded a telephone conversation between Knapp and defendant in which defendant agreed to deliver a half-ounce of methamphetamine to Knapp's house that afternoon. Based on the statements they heard during the phone call, the police arrested defendant outside Knapp's home. They searched defendant incident to his arrest and found a zippered pouch next to the driver's seat of his truck that contained several bindles of methamphetamine.

Defendant moved to suppress evidence of the telephone conversation that the police had recorded on the ground that neither he nor Knapp had consented to the recording. Id. at 386-87, 105 P.3d 872. Defendant contended that, without the unlawfully obtained evidence of the telephone conversation, the police lacked probable cause for a warrantless search of defendant and his vehicle.¹ Id. at 387, 105 P.3d 872. Knapp did not testify at the suppression hearing, and the prosecutor sought to introduce hearsay evidence to prove that Knapp had consented to the recording. The trial court ruled that the state could not rely on hearsay to demonstrate Knapp's consent. Accordingly, it held that the telephone recording was made illegally and that the subsequent search was not supported by probable cause.

After that ruling, the prosecutor indicated that she was not prepared to try the case without the evidence in question and sought a continuance in order to appeal the suppression ruling. Id. at 387, 105 P.3d 872. The prosecutor then stated to the court that, although she was not going to dismiss the case, "under ORS 136.120, you could dismiss the case because the prosecution is unprepared for trial." Id. The trial court dismissed the case pursuant to ORS 136.120 and the state appealed both the suppression order and the judgment of dismissal. See State v. Robinson, 158 Or.App. 494, 974 P.2d 713 (1999) (if a trial court dismisses a case after granting suppression, the state must appeal the dismissal as well as the suppression, or the appeal will be rendered moot).

On appeal, the state argued that the trial court erred in suppressing evidence of the telephone conversation and in dismissing the case. Defendant responded, in part, that, in order to prevail, the state not only would have to gain reversal of the suppression, but of the dismissal as well, and argued that the state could not gain reversal of the latter because it had invited any error in that regard by telling the court that it could dismiss the case under ORS 136.120. Defendant relied on State v. Hoare, 20 Or.App. 439, 445-46, 532 P.2d 240 (1975), for the proposition that a prosecutor's refusal to proceed to trial when the state wished to appeal a suppression ruling did not constitute lack of "sufficient cause for postponing the trial" pursuant to ORS 136.120.

We agreed with defendant that Hoare was directly on point, stating:

"In order to prevail on an appeal of this sort—in which the trial court has suppressed evidence and dismissed the case—the state must successfully appeal both the suppression and the dismissal. State v. Robinson, 158 Or.App. 494, 974 P.2d 713 (1999) (if the state appeals an order suppressing evidence but fails to appeal the order of dismissal, the appeal becomes moot). To appeal successfully, the state must therefore show not only that the trial court erred in suppressing evidence but that it erred in dismissing the case.

"As noted above, the trial court dismissed the case pursuant to ORS 136.120 (providing for dismissal where the district attorney is not ready and `does not show any sufficient cause for postponing the trial') on the ground that the prosecutor wished to appeal rather than go to trial. Under Hoare, a dismissal under those circumstances was error, as taking an appeal from a pretrial suppression order does constitute `sufficient cause' for postponement of trial. Hoare, 20 Or.App. at 445-46, 532 P.2d 240. The problem is that the state is not in a position to argue on appeal that the trial court erred in dismissing the case pursuant to ORS 136.120, because the prosecutor informed the trial court that it was authorized to dismiss the case pursuant to that statute under these circumstances. Invited error cannot serve as the basis for reversal. State v. Maxwell, 165 Or.App. 467, 478, 998 P.2d 680 (2000), rev. den., 334 Or. 632, 54 P.3d 1042 (2002). Because the state cannot successfully challenge the dismissal of the case due to its invited error and cannot prevail simply by demonstrating that the suppression order was erroneous, see Robinson, 158 Or.App. at 499-500, 974 P.2d 713, our only possible disposition under the circumstances is to affirm."

Ferguson, 197 Or.App. at 389-90, 105 P.3d 872. Thus, we concluded that, regardless of the merits of the suppression issue, the state was not in a position to argue for reversal of the dismissal because the prosecutor had invited the trial court's erroneous dismissal of the case.

On reconsideration, the state primarily argues that our holding simply was wrong—that, in cases since Hoare, we have indicated that "an erroneous suppression of evidence may provide the basis for reversing a dismissal that is based on that suppression of evidence," albeit not in quite the same context as presented here. Robinson, 158 Or.App. at 497, 974 P.2d 713. The state further notes that, in fact, we have held that the state's "voluntary dismissal [did not] preclude an appeal from the order of suppression and dismissal." Williams, 161 Or.App. at 115, 984 P.2d 312; see also Sulser, 127 Or.App. at 47 n. 1, 871 P.2d 126 (where a dismissal and suppression were contained in the same order, the dismissal did "not affect the disposition of this appeal"). The state's position, as we understand it, is that, because "an erroneous suppression of evidence may provide the basis for reversing a dismissal that is based on that suppression of evidence," Robinson, 158 Or.App. at 497, 974 P.2d 713, the trial court's motivation or impetus for dismissing the case is irrelevant because reversal of the suppression mandates reversal of the dismissal.

Defendant responds by attempting to carve out a distinction between (1) cases in which the court suppresses evidence and dismisses the case in the same order and (2) cases (like this) in which the court suppresses evidence and dismisses the case in separate orders. Defendant posits that Williams and Sulser are distinguishable from this case because they fell into the former, not the latter, category.

Defendant's proposed distinction is, for present purposes, a distinction without a difference. Such a distinction is useful in cases like Robinson, Williams, and Sulser, in which the court must determine whether the case is moot or whether the state has appealed from the correct order or orders. However, we perceive no principled reason in the context of determining whether a party has invited error by proposing that a case be dismissed under ORS 136.120. Accordingly, we reject defendant's proffered distinction and return to the state's arguments concerning Hoare's continuing vitality.

What the state seems to be suggesting is that, although Hoare's result is correct, its reasoning concerning the propriety of dismissal under ORS 136.120 is obsolete in light of later cases from this court that have not separately analyzed the propriety of suppression and dismissal. That is, we understand the state to be suggesting that the propriety of a dismissal pursuant to ORS 136.120 simply is not at issue in this kind of case because the success of a state's appeal under these circumstances rests solely on whether the suppression of evidence was proper. Thus, under the state's approach, it would follow that, if the propriety of the dismissal is not at issue, it does not matter whether the appellant suggested that the court could dismiss under ORS 136.120.

The state's argument in that regard is not without some force. Hoare was decided in 1975. In the 30 years since then, cases have routinely come before us in which the trial court, after suppressing evidence pretrial, dismissed the case. In analyzing the propriety of the dismissal and the suppression, we have generally treated the two as interdependent. Sometimes, that treatment has been express, as in State v. Wood, 41 Or.App. 31, 33, 596 P.2d 1325 (1979), where we declared that the "correctness of the dismissal turns on the correctness of the suppression," or in State v. Underwood, 53 Or.App. 771, 773, 633 P.2d 803 (1981), aff'd, 293 Or. 389, 648 P.2d 847 (1982), where we de...