State v. Lemmer

• Decision Date: 29 March 2023
• Docket Number: A175931
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. JAMEY LEE LEMMER, Defendant-Appellant.
• Court: Oregon Court of Appeals

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325 Or.App. 94

STATE OF OREGON, Plaintiff-Respondent, v. JAMEY LEE LEMMER, Defendant-Appellant.

A175931

Court of Appeals of Oregon

March 29, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted December 20, 2022

Coos County Circuit Court 20CR31781 Andrew E. Combs, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Nora Coon, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman Judge.

Affirmed.

. ORTEGA, P. J.

Defendant appeals a judgment of conviction, following her conditional guilty plea, for unlawful possession of methamphetamine-a felony. ORS 475.894 (2017), amended by Or Laws 2021 ch 2, § 17 (Ballot Measure 110 (2020)), Or Laws 2021, ch 591, § 39.^[1] In her first assignment of error defendant argues that the trial court should have granted her motion to suppress because her consent to search was not voluntary. In her second and unpreserved assignment of error defendant argues that convicting her of a felony was disproportionate under Article I, section 16, of the Oregon Constitution, given that the applicable statute no longer criminalized her conduct as a felony at the time she was convicted, and asks us to review the claim for plain error, as we are authorized to do under ORAP 5.45(1). The state contends that the search was justified as a search incident to arrest and that defendant's second assignment of error is not plain error. We agree with the state and thus affirm.

The background contextual facts, which are undisputed, are these. In 2019, defendant was present at a house where Officers Waddington and Kirk were making an arrest for a probation violation. Waddington observed a plastic bag that contained a "white crystalline substance," which he "suspected to be methamphetamine"-and which was later so confirmed-fall from defendant's clothing. He told defendant multiple times to hand the bag over to him, but defendant said that the bag was a piece of trash and that she had thrown it away. After Kirk informed Waddington that defendant had put the bag down her shirt, Waddington told defendant that if she did not hand the bag over to him, he would take defendant to jail to have the bag removed from defendant's bra by a female deputy. Defendant removed the bag from her bra and handed it to Waddington.

The state indicted defendant with unlawful possession of a usable quantity of methamphetamine-a . felony under the then-current statute. Subsequently, Ballot Measure 110 went into effect, reducing the equivalent offense to a misdemeanor. See Or Laws 2021, ch 2, § 17 (Measure 110). Defendant moved to suppress the methamphetamine, arguing, among other things, that the police obtained it through a nonconsensual search due to Waddington's threat. After the trial court denied that motion, defendant entered a conditional guilty plea, and the court convicted her of felony possession of methamphetamine and sentenced her accordingly.

We review a "denial of a motion to suppress for legal error and are bound by th[e] court's findings of historical facts if there is evidence in the record to support them." State v. Senin, 301 Or.App. 358, 359, 456 P.3d 334 (2019). Defendant argues that her motion should have been granted because her act of yielding to Waddington's threatening demand was mere acquiescence rather than voluntary consent. We are not persuaded by defendant's arguments.

We first note that the parties do not dispute that defendant's act of relinquishing the bag from her possession constituted a search under Article I, section 9. We need not decide whether defendant's consent to relinquish the bag was voluntary because, as the state contends, the evidence would have been inevitably discovered in a lawful search incident to arrest, based on probable cause that defendant possessed an unlawful substance. See ORS 131.005(11) (establishing probable cause standard). As the court found and the record confirms Waddington's experience, training, and firsthand observation of the plastic bag in defendant's possession, among other findings,...