State v. Dennis

584

Submitted November 23, 2020; conviction on Count 3 reversed and remanded,

remanded for resentencing, otherwise affirmed March 3, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

SAMUEL WYATT DENNIS,

Defendant-Appellant.

Linn County Circuit Court

18CR81225; A170278

483 P3d 50

David E. Delsman, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and John Evans, Deputy Public Defender, Office of

Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Adam Holbrook, Assistant Attorney

General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and

Aoyagi, Judge.

PER CURIAM

Conviction on Count 3 reversed and remanded; remanded

for resentencing; otherwise affirmed.

Cite as 309 Or App 584 (2021) 585

PER CURIAM

Defendant appeals a judgment of conviction for mul-

tiple crimes. We write mainly to address his challenge to his

conviction for unlawful possession of methamphetamine,

ORS 475.894 (Count 3).1 After a 57-mile vehicle pursuit of

defendant by law enforcement officers, a sheriff’s deputy

searched defendant’s car and discovered in the car’s central

console a methamphetamine pipe with methamphetamine

residue. Before defendant’s trial, defendant moved to sup-

press the pipe evidence, which was relevant only to Count 3,

on the basis that it was discovered unlawfully without a

warrant. Or Const, Art I, § 9. The trial court denied the

motion to suppress on two grounds: (1) because the deputy

had probable cause to believe that defendant had committed

attempt to elude and that evidence of defendant’s identity

could be inside the car, the search was authorized under

the automobile exception, see State v. McCarthy, 302 Or App

82, 83, 459 P3d 890, rev allowed, 366 Or 691 (2020) (under

State v. Brown, 301 Or 268, 721 P2d 1357 (1986), and other

cases, so long as the automobile is mobile and officers have

probable cause to search the vehicle, the state does not

need to show any particular exigency under the facts of the

encounter, nor establish that a telephonic warrant was not

available); and (2) because the deputy acted in accordance

with the county’s inventory policy, the search was permit-

ted by the inventory exception to the warrant requirement,

see State v. Krumenaker, 306 Or App 9, 15-16, 472 P3d 760

(2020) (an inventory of the contents of an impounded vehicle

is permitted if three requirements are met).

On appeal, defendant contends that neither ground

justifies the search of his car. The state concedes that defen-

dant is correct, acknowledging that (1) with respect to prob-

able cause to search the vehicle, defendant’s identification

was neither evidence of failure to present a driver’s license,

1

We reject defendant’s second of assignment of error without written discus-

sion. As to defendant’s third assignment of error—that the trial court erred in

instructing the jury that it need not arrive at unanimous guilty verdicts—that

argument is foreclosed by State v. Dilallo, 367 Or 340, 478 P3d 509 (2020) (hold-

ing that, where defendant did not preserve a nonunanimous-jury argument and

the jury was not polled, it was not appropriate to exercise discretion to review

jury-instruction assignment as plain error).

586 State v. Dennis

see State v. Banks, 103 Or App 312, 314-15, 797 P2d 383

(1990) (explaining that “[e]vidence of identity is not an ele-

ment of the offense of failure to present a driver’s license”),

nor evidence of attempting to elude a police officer; and

(2) the state did not rely on the inventory exception at the

suppression hearing, offer a copy of the inventory policy into

evidence, or offer other evidence sufficient to establish two of

the three requirements of the inventory exception. Because

we agree and accept the state’s concession, we reverse and

remand Count 3.

Conviction on Count 3 reversed and remanded;

remanded for resentencing; otherwise affirmed.