State v. Williams

• Decision Date: 09 June 1999
• Citation: 984 P.2d 312,161 Or. App. 111
• Parties: STATE of Oregon, Appellant, v. Kevin James WILLIAMS, Respondent.
• Court: Oregon Court of Appeals

984 P.2d 312

161 Or. App. 111

STATE of Oregon, Appellant, v. Kevin James WILLIAMS, Respondent.

(C960836393; CA A95654)

Court of Appeals of Oregon.

Argued and Submitted September 23, 1998.

Decided June 9, 1999.

Janet A. Klapstein, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Peter Gartlan, Deputy Public Defender, argued the cause for respondent. On the brief were David E. Groom, Public Defender, and Diane L. Alessi, Deputy Public Defender.

Before EDMONDS, Presiding Judge, and ARMSTRONG and BREWER,¹ Judges.

BREWER, J.

The state appeals from a pretrial order suppressing evidence and dismissing this case at the state's request. ORS 138.060. Defendant was charged with supplying contraband, ORS 162.185, after marijuana was discovered in his possession when he was being booked after being arrested for unlawful possession of a firearm, ORS 166.250. The state argues that the trial court erred in determining that the police officer who arrested defendant for unlawful possession of a weapon lacked probable cause to do so and that the court further erred in determining that the marijuana should be suppressed as a result of the unlawful arrest. Defendant responds that the issue presented by the state is not reviewable, that the trial court correctly determined that no probable cause existed for the arrest, and that the trial court correctly determined that the marijuana should be suppressed. For the following reasons, we affirm.

Officer McConnell stopped a car after a pursuit during which the driver had attempted to elude two other officers. Defendant was the front seat passenger in the stopped car. A second passenger was in the back seat. During the ensuing contact, the driver was arrested for reckless driving. After arresting the driver, the officer conducted an inventory of the car in preparation for towing. During the inventory, the officer found a loaded 9mm pistol underneath the front passenger seat where defendant had been sitting. The officer then arrested defendant and the back seat passenger for unlawful possession of the weapon. Defendant was searched during booking, and ten baggies of marijuana were discovered in his shoe. Defendant was charged with supplying contraband but ultimately was not charged with unlawful possession of a weapon.

Before trial, defendant moved to suppress evidence of the marijuana. He argued that the officer lacked probable cause to arrest him and that the later custodial search and resulting seizure of the marijuana were therefore illegal. The state countered that the officer's discovery of the gun during an inventory furnished the officer with probable cause to believe that defendant had committed the crime of unlawful possession of a weapon and that the ensuing search and seizure were valid.

The police officer who arrested defendant after finding the gun in the car testified as follows on cross-examination:

"Q: And you arrested [defendant] based upon a gun that was found in the car in which he was a passenger?

"A: That's correct.

"Q: What was he under arrest for?

"A: Unlawful Possession of a Firearm.

"Q: Now, did you ever see [defendant] in possession of the firearm?

"A: In actual hands-on possession, no. But it was in constructive possession in that it was within his grasp or not grasp but within his area of control, easily retrievable in less than a second."

Based on this testimony, defense counsel argued that the officer lacked probable cause to believe that defendant possessed the weapon because the car was not defendant's car, the back seat passenger had access to the area under the passenger seat, and no evidence indicated that defendant knew the weapon was under the seat. The prosecutor responded that probable cause existed because the weapon was within the area of defendant's control within the car. The court stated:

"What it comes down to as the Court sees it and I will listen to any other argument as to whether or not there's some other issue, is whether there was probable cause to believe more likely than not that the defendant knew that the gun was there. Certainly, the gun is in closer proximity to the defendant than anyone else in the vehicle. But the question remains, is it more likely than not from the evidence that the defendant had knowledge of the gun under the seat."

The trial court then made a number of factual findings:

"That there was no evidence indicating that the vehicle belonged to the defendant or he had any interest in the vehicle; that the vehicle was being driven by someone other than the defendant, that being the driver Pittman; that there were no movements by the defendant which indicated that he either placed or retrieved the gun during the period of time in which the officer saw the defendant in the car; that it is as earlier stated, unknown as to how long the gun had been there, unknown as to how long [defendant] had been in the right front passenger seat."

Based on those factual findings, the court concluded that it "is insufficient for there to be probable cause that it was more likely than not that the defendant had constructive possession of the gun."

The prosecutor then argued that the discovery of contraband during booking was sufficiently attenuated from the arrest and that evidence of the contraband should not be suppressed. The court rejected that argument, granted defendant's motion to suppress, and dismissed the case at the state's request.

As a preliminary matter, defendant argues that the state's appeal is not reviewable by this court. He contends that, because the state assigns error only to the order of suppression, the dismissal order renders the appeal moot. We disagree. In State v. Denny, 158 Or.App. 616, 620, 978 P.2d 1014 (1999), we held that "[w]here, as here, the order of dismissal and the suppression order are embodied in the same document, a determination that suppression was erroneous mandates reversal of both the suppression and the dismissal." Compare State v. Robinson, 158 Or.App. 494, 500, 974 P.2d 713 (1999)

(suppression order rendered moot by entry of later order of dismissal that was not appealed). Under these circumstances, the state's failure specifically to assign error to the dismissal, in addition to the suppression, does not render the appeal moot. Neither does the state's voluntary dismissal preclude an appeal from the order of suppression and dismissal. State v. Sulser, 127 Or.App. 45, 47 n. 1, 871 P.2d 126 (1994).

Defendant also argues that we should not review the state's assignment of error because the scope of appeal from the dismissal does not include an order "which precede[d] the order * * * appealed from." State v. Caruso, 289 Or. 315, 319, 613 P.2d 752 (1980). However, in Caruso, the pretrial order from which the state sought review was not an appealable order under ORS 138.060. The Supreme Court held that the state could not use an appeal from a dismissal as a conduit for appellate scrutiny of otherwise unreviewable intermediate orders. Id. at 320, 613 P.2d 752. In contrast, the state may appeal from a suppression order. ORS 138.060(3). We conclude that the issue raised by the state on appeal is reviewable, which brings us to the merits of this appeal.

On appeal, the parties essentially repeat their positions taken in the trial court, arguing about whether or not, under the facts of this case, the officer had probable cause to believe that defendant constructively possessed a firearm in violation of ORS 166.250 by being seated near where the firearm was concealed. Generally, we do not feel compelled to go beyond the parties' arguments to decide an issue presented on appeal. However, this case presents the exceptional circumstance in which, if we accept the parties' formulation of the issue presented, we would be forced to misinterpret a statute and, in doing so, to add an element to the crime of unlawful possession of a firearm that has no statutory basis. "In construing a statute, this court is responsible for identifying the correct interpretation, whether or not asserted by the parties." Stull v. Hoke, 326 Or. 72, 77, 948 P.2d 722 (1997). That rule takes on an added significance in a criminal case, because an incorrect statutory construction can have direct bearing on the privacy interests of people throughout the state.

The problem with the parties' positions in this case is that they have assumed that a "constructive possession" analysis is identical under ORS 166.270 (felon in possession of a firearm) and ORS 166.250, the unlawful possession of a firearm statute. For the reasons set forth below, that assumption is erroneous. It follows from our analysis of the statutes that the trial court reached the correct conclusion in the present case, and we therefore affirm the trial court on an alternative ground.

ORS 166.250, the statute on which the state relies for its probable cause argument in this case, provides in pertinent part:

"(1) Except as otherwise provided in this section, ORS 166.260, 166.270, 166.274, 166.280, 166.291, 166.292 or 166.410 to 166.470, a person commits the crime of unlawful possession of a firearm if the person knowingly:

"(a) Carries any firearm concealed upon the person, without having a license to carry the firearm as provided in ORS 166.291 and 166.292;

"(b) Carries concealed and readily accessible to the person within any vehicle which is under the person's control or direction any handgun, without having a license to carry such firearm as provided in ORS 166.291 and 166.292[.]" (Emphasis added.)

In contrast, ORS 166.270 makes it unlawful for a felon to have within his or her "possession or under the person's custody or control" firearms and various other weapons. In analyzing the "custody or control" element of ORS 166.270, courts have indicated on several occasions that a felon who is a passenger in a vehicle in which a weapon...