State v. Jones

60

Submitted November 24, 2020, reversed and remanded October 6, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

TESSA RENAE JONES,

aka Tess Renae Jones,

Defendant-Appellant.

Clackamas County Circuit Court

16CR79136; A170343

499 P3d 111

Defendant appeals a judgment of conviction for one count each of unlawful

possession of oxycodone and identity theft, arguing that the trial court erred

by denying her motion to suppress evidence that was obtained as a result of her

unlawful seizure. Defendant contends that the trial court erred in admitting

evidence related to drug activity and identity theft discovered inside her purse,

as well as additional drug-related evidence found in the car in which she had

been a passenger, because (1) she and her purse were unlawfully seized when

an officer required her to return the purse to the car before permitting her to

go; and (2) the driver of the car lacked authority to grant consent to a search

of her purse. The state concedes that the trial court committed reversible error

as to the search of defendant’s purse, but argues that suppression was not war-

ranted as to additional drug-related evidence that was lawfully within the scope

of the driver’s consent to search, and that the court correctly denied that aspect

of defendant’s motion on that basis. Held: Under Outdoor Media Dimensions Inc.

v. State of Oregon, 331 Or 634, 20 P3d 180 (2001), this court’s decision whether to

uphold a trial court’s decision on an alternative basis is discretionary, even if the

requirements of that case are met. See State v. Shields, 309 Or App 516, 482 P3d

784 (2021). On the record before it, the Court of Appeals chose not to exercise its

discretion to uphold the decision, due, in part, to uncertainty whether a different

record could have developed. Accordingly, the court concluded that the trial court

had erred in not granting defendant’s suppression motion in its entirety.

Reversed and remanded.

Robert D. Herndon, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Kristin A. Carveth, Deputy Public Defender,

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Christopher Page, Assistant Attorney

General, filed the brief for respondent.

Cite as 315 Or App 60 (2021) 61

Before DeVore, Presiding Judge, and DeHoog, Judge, and

Mooney, Judge.

DeHOOG, J.

Reversed and remanded.

62 State v. Jones

DeHOOG, J.

Defendant appeals a judgment of conviction for one

count each of unlawful possession of oxycodone and iden-

tity theft, arguing that the trial court erred by denying her

motion to suppress evidence that was obtained as a result

of her unlawful seizure. Having reviewed the briefing, the

relevant portions of the record, and the applicable law, we

reverse and remand for the reasons briefly set forth below.

In doing so, we note that a more detailed discussion of the

facts and our analysis in this particular case would not sig-

nificantly benefit the bench, the bar, or the public.

In defendant’s sole assignment of error, she contends

that the trial court erred in admitting evidence related to

drug activity and identity theft discovered inside her purse,

as well as additional drug-related evidence found in the car

in which she had been a passenger, because (1) she and her

purse were unlawfully seized when an officer required her

to return the purse to the car before permitting her to go;

and (2) the driver of the car lacked authority to grant con-

sent to a search of her purse. In response, the state concedes

that the trial court committed reversible error in ruling that

defendant and her purse had not unlawfully been seized

and that the driver’s lawful consent to search the vehicle

included the purse. We accept the state’s concession and con-

clude that any evidence obtained as a result of the search of

the purse, including any statements attributed to defendant

following that search, should have been suppressed.

That conclusion does not wholly resolve this appeal.

Notwithstanding its concession that the trial court erred,

the state now argues that suppression was not warranted

as to additional drug evidence that was either (1) law-

fully within the scope of the driver’s consent to search; or

(2) obtained following defendant’s arrest based, in part, on

that additional evidence. We briefly consider that argument.

Citing Outdoor Media Dimensions Inc. v. State of

Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001), the state

argues that we should uphold the trial court’s denial of

those aspects of defendant’s motion to suppress because the

court’s ruling was “right for the wrong reason.” Specifically,

the state contends that the discovery of the additional drug

Cite as 315 Or App 60 (2021) 63

evidence was sufficiently attenuated from the illegal seizure

of defendant and her purse. The state acknowledges that

it must carry the burden of proof as to “attenuation—that

is, that the violation of defendant’s rights had such a tenu-

ous factual link to the disputed evidence that the unlawful

police conduct cannot be properly viewed as the source of

that evidence.” State v. Benning, 273 Or App 183, 194, 359

P3d 357 (2015). The state argues, however, that the record

satisfies that burden. The state notes that the driver pro-

vided valid consent to search the car and argues that the

evidence lawfully found in the ensuing search—that is, the

evidence other than that found in defendant’s purse—was

sufficient to establish probable cause to arrest defendant. In

other words, the state argues that the discovery of the addi-

tional evidence was not the result of the officer’s exploitation

of the prior illegality.1

In discussing whether to uphold a trial court’s rul-

ing on the basis that it was “right for the wrong reason,” we

have explained that,

“[f]or us to affirm a trial court’s ruling on a basis other

than that on which the court relied, (1) ‘the facts of record

[must] be sufficient to support the alternative basis for

affirmance’; (2) ‘the trial court’s ruling [must] be consis-

tent with the view of the evidence under the alternative

basis for affirmance’; and (3) ‘the record [must] materially

be the same one that would have been developed had the

prevailing party raised the alternative basis for affirmance

below.’ ”

State v. Booth, 272 Or App 192, 199, 355 P3d 181 (2015)

(quoting Outdoor Media Dimensions Inc., 331 Or at 659-60

(brackets in Booth)). Here, the state contends that those cri-

teria are met. As to the third criterion—that the record be

materially the same as it would have been had the state

made an attenuation argument in the trial court—the

1

Although the record indicates that officers found methamphetamine and

related paraphernalia in the car in addition to the evidence found in defendant’s

purse, the state does not indicate what if any evidence they discovered after

defendant’s arrest. Rather, the state merely argues that, to the extent such evi-

dence exists, it was not subject to suppression as it would inevitably have been

discovered. In light of our disposition, it is not necessary to determine whether

such evidence exists or, if it does, whether its discovery would have been inevita-

ble even if defendant and her purse had not illegally been seized.

64 State v. Jones

state points out that defendant asserted in her suppression

motion that the consent search was not sufficiently atten-

uated from the illegal seizure of defendant and her purse.

The state reasons that, had defendant had additional evi-

dence as to the issue of attenuation, she likely would have

presented it at the suppression hearing and did not. Thus,

the state concludes, there is no reason to believe that the

record would have been materially different if it had been

the state, rather than defendant, who raised the attenuation

issue in the trial court.

We acknowledge the superficial appeal of the state’s

reasoning, particularly because we cannot think of ways in

which the record may have developed differently, and defen-

dant has provided no assistance by way of a reply brief or

otherwise. Nonetheless, we decline to consider the state’s

proffered alternative basis. As we recently confirmed, the

decision whether to uphold a trial court’s decision on an

alternative basis, even when the requirements of Outdoor

Media Dimensions Inc. are met, is a discretionary one. State

v. Shields, 309 Or App 516, 526, 482 P3d 784 (2021) (“Under

Outdoor Media Dimensions Inc., it ‘is a matter of prudential

discretion and not compulsion’ whether to affirm on an alter-

native basis raised for the first time on appeal. Biggerstaff v.

Board of County Commissioners, 240 Or App 46, 56, 245 P3d

688 (2010).”).

Here, although the record may not have developed

differently had the state argued attenuation in the trial

court, it is impossible to say whether the officers would have

associated the drugs and related paraphernalia in the car

with defendant had they not also seized and found drug-

related evidence in her purse. That uncertainty might be

viewed as an indication that the state’s attenuation argu-

ment is not airtight; alternatively, it may suggest that there

was, in fact, a potential line of inquiry that could have led

to the development of a different record, despite our uncer-

tainty as to how that might look. We need not choose which

view is most appropriate here. It should suffice to say that

those potential uncertainties persuade us that this is not a

case in which to exercise our discretion to consider the state’s

“right for the wrong reason” argument raised on appeal.

Cite as 315 Or App 60 (2021) 65

Accordingly, we conclude that the trial court erred in not

granting defendant’s suppression motion in its entirety.

Reversed and remanded.