State v. Lambert, 111034516

• Decision Date: 03 July 2014
• Docket Number: A151279.,111034516
• Citation: 338 P.3d 160,265 Or.App. 742
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jeff Edward LAMBERT, Defendant–Appellant.
• Court: Oregon Court of Appeals

265 Or.App. 742

338 P.3d 160

STATE of Oregon, Plaintiff–Respondent

v.Jeff Edward LAMBERT, Defendant–Appellant.

111034516

A151279.

Court of Appeals of Oregon.

July 3, 2014.

July 24, 2014.

July 31, 2014.

Decided October 1, 2014.

Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, for petition.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jennifer S. Lloyd, Attorney–in–Charge, for response.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

Opinion

GARRETT, J.

Defendant has petitioned for reconsideration of our decision in State v. Lambert, 263 Or.App. 683, 328 P.3d 824 (2014). We held that the trial court erroneously denied defendant's motion to suppress “all evidence discovered pursuant to the warrantless and unlawful ‘seizure’ of his vehicle.” Id. at 689, 328 P.3d 824. The trial court relied on the “administrative seizure” exception to the warrant requirement, but we concluded that the state had failed to demonstrate the applicability of that exception. Rather than reverse defendant's convictions outright, however, we concluded that the proper disposition of defendant's convictions on Counts 2 and 3 was to vacate and remand so that the trial court could consider whether the disputed evidence was “actually obtained” from the unlawful seizure. Id. at 699, 328 P.3d 824. In his petition for reconsideration, defendant argues that that disposition was incorrect because we should have decided that question of law on the existing record. For the reasons that follow, we agree with defendant and modify our opinion accordingly.

The relevant facts are taken from our opinion in Lambert, 263 Or.App. at 685–89, 328 P.3d 824. That case involved two different break-ins at a facility owned by the Portland Water Bureau (PWB). The facility is enclosed by a chain-link fence and is adjacent to “a piece of publicly accessible property that includes a nature path, a boat launch, and a parking area.” Id. at 685, 328 P.3d 824.

The first break-in occurred in August 2011. A hole, which was large enough to drive a car through, was cut into the perimeter fence. Police discovered a “ ‘4x4’ decal, which appeared to have become detached from a vehicle, lying on the ground near the hole in the fence.” Id. at 686, 328 P.3d 824. During the August break-in, numerous items were taken from the property, including a “pH pen,” which is a small handheld device used to measure the pH of water. Id. at 686 n. 1, 328 P.3d 824.

The second break-in occurred on the night of October 14, 2011. During that break-in,

“PWB security observed a vehicle parked just outside the PWB site, on the adjacent public property, near the perimeter fence. They also observed an unknown person moving inside one of the tents. Portland police responded to the scene. The vehicle, a Jeep Grand Cherokee, appeared to have been driven through the parking lot for the boat launch and onto a grassy area so that it was concealed behind a row of trees. Police also found that the lock on the PWB facility gate had been cut. Police observed defendant walk into one of the tents and eventually approach the fence. Defendant was arrested.”

Id. at 686–87, 328 P.3d 824. After the arrest, defendant's vehicle was towed to the police impound lot, “a secure facility where police send cars ‘as a matter of course.’ ” Id. at 687, 328 P.3d 824. Police “put a ‘hold’ on the vehicle, which served the purpose of notifying the police bureau's burglary task force so that they would ‘eventually look at the vehicle.’ ” Id. at 687–88, 328 P.3d 824 (brackets in original).

Four days after defendant's vehicle was towed, Officer Lobaugh, a member of the burglary task force, “took the 4x4 decal to the vehicle impound lot. Upon examining the exterior of defendant's Jeep, Lobaugh discovered that it appeared to be missing a decal, and that the decal from the scene of the August break-in ‘fit [the Jeep] like a puzzle.’ ” Id. at 688, 328 P.3d 824.

Lobaugh applied for a warrant to search the interior of defendant's Jeep. In his affidavit in support of the search warrant, Lobaugh stated:

“[P]olice at the scene of the August break-in had discovered a hole in the fence ‘large enough to allow a vehicle to drive through’; that forensic specialists identified ‘indistinct tire tracks visible on the ground, leading from a perimeter path through the hole in the fence’; and that police found ‘a plastic 4x4 vehicle decal that had possibly been scraped off the side of a vehicle.’ ”

Id. at 688, 328 P.3d 824. With respect to the October break-in, Lobaugh averred:

“[D]efendant had been driving a ‘Jeep Cherokee’ and had ‘made entry into the property by cutting though the fence’; that police observed blankets in the rear of defendant's vehicle that were ‘clearly’ concealing something from view; and that when Lobaugh compared the 4x4 decal that had been recovered in August with the spot on defendant's vehicle that appeared to be missing a decal, ‘[t]he glue to where the decal had been was still obvious and the decal seemed to fit exactly to that spot.’ ”

Id. The affidavit explained that police intended to search defendant's vehicle for items reported taken during the August break-in, including a red pH pen. Id. at 689, 328 P.3d 824. After the warrant was issued, police discovered a red pH pen in defendant's vehicle that was identical to the type of pen stolen in the August break-in. Id.

Before trial, defendant filed two motions to suppress. The first asked the trial court “for an Order suppressing evidence arising out of the search, pursuant to a search warrant, of [defendant's] 1992 green Jeep Cherokee * * *.” The second asked the trial court to suppress “all evidence discovered pursuant to the warrantless and unlawful ‘seizure’ ” of his vehicle. The trial court denied both motions. As relevant here, the trial court denied the second motion on the basis that the tow of defendant's vehicle was a lawful “administrative seizure” because it was authorized by a section of the Portland City Code.

We held that the trial court erred in relying solely on the Portland City Code to conclude that the warrantless tow was lawful. To invoke the administrative seizure exception to the warrant requirement, the state must show not only that the seizure was authorized by law but that “suspicions of criminal activity play[ed] no part in the officer's decision to seize the property.” Id. at 695, 328 P.3d 824 (internal quotation marks omitted). That showing was not made in this case. Id. at 697, 328 P.3d 824.

The state argued that, regardless of the seizure's legality, defendant's motion to suppress had been properly denied because the evidence at issue was admissible through an independent source—the search warrant that Lobaugh obtained. We disagreed, rejecting the state's analogy to State v. Smith, 327 Or. 366, 963 P.2d 642 (1998). In Smith, police seized the defendant's storage unit by padlocking it shut while waiting for a search warrant to issue. Id. at 369, 963 P.2d 642. In that case, the Supreme Court concluded that police did not “actually obtain” evidence from the seizure of the storage unit and, therefore, suppression was not required. 327 Or. at 379–80, 963 P.2d 642. That was so because the unlawful padlocking of the storage unit merely secured whatever was inside it; that action itself did not contribute to the discovery of evidence. Id. In Lambert, “by contrast, the seizure of defendant's Jeep at least facilitated the discovery of evidence by making it possible for * * * Lobaugh to inspect the Jeep at the impound facility,” which led directly to the issuance of the search warrant. 263 Or.App. at 699, 328 P.3d 824.

Our treatment of the state's “independent source” argument, admittedly, was confusing. Although we rejected the state's analogy to Smith, we went on to note that the trial court, because of its ruling that the seizure was lawful, had not addressed “whether the pH pen and the evidence of the match of the 4x4 decal, like the evidence in Smith, ‘would have been obtained even in the absence of the unlawful police conduct.’ ” Lambert, 263 Or.App. at 699, 328 P.3d 824 (quoting Smith, 327 Or. at 380, 963 P.2d 642 ). In effect, without clearly differentiating between “independent source” and “inevitable discovery,” we disagreed with the state's particular “independent source” rationale but concluded that a different rationale might support the conclusion that the evidence would have been “inevitably discovered” (e.g., if police could have been obtained the evidence of the 4x4 logo match at the scene, left the vehicle at the park, and then used that evidence to apply for and execute the search warrant). Id. at 699, 328 P.3d 824 (“[T]he record before us does not compel a conclusion either way. Although the seizure of the Jeep allowed Lobaugh to inspect the vehicle at the impound lot, it does not necessarily follow that the police could not have obtained the evidence another way.”). The purpose for the limited remand in Lambert, therefore, was to allow both parties to fully develop those arguments.

On reconsideration, we conclude that it was error to remand in order for the trial court to consider whether the evidence would have been inevitably discovered. A remand in this situation is appropriate only if the record contains potentially conflicting evidence that needs to be resolved. State v. Grover, 193 Or.App. 165, 173, 90 P.3d 8 (2004) (remand for further factual findings is appropriate only when “the need for a finding on a certain critical fact was obviated by the trial court's erroneous legal conclusions and where the existing record contained potentially conflicting evidence on that critical fact” (emphasis in original)). If the seizure was unlawful and the record does not support the conclusion that police would have inevitably discovered the evidence, we must reverse because the state had the obligation to “develop a record sufficient to substantiate...