State v. Perrodin

252

Argued and submitted August 5, 2020, reversed and remanded

October 20, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

BRYAN LEE PERRODIN,

Defendant-Appellant.

Lane County Circuit Court

18CR42230; A169186

500 P3d 704

Defendant appeals from a judgment of conviction for unlawful delivery of

methamphetamine, unlawful possession of cocaine, and two counts of felon in

possession of a firearm. In the trial court, defendant moved to suppress the

evidence discovered subsequent to his warrant-based arrest, alleging that the

arrest warrant was not supported by a sworn statement of probable cause. The

state asserted that the arrest was authorized by a valid warrant but did not pro-

duce the warrant as evidence. On appeal, defendant contends that the trial court

erred in denying his motion to suppress. Held: To adequately respond to defen-

dant’s challenge, the state needed to either produce the warrant or prove that the

arrest was lawful as a warrantless arrest supported by probable cause. The state

did neither. Because the trial court concluded that the arrest was authorized

by a warrant despite the fact that no warrant was admitted into evidence, the

court erred in denying defendant’s motion to suppress all evidence discovered as

a result of the arrest.

Reversed and remanded.

Maurice K. Merten, Judge.

Kyle Krohn, Deputy Public Defender, argued the cause

for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

David B. Thompson, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

SHORR, J.

Reversed and remanded.

Cite as 315 Or App 252 (2021) 253

SHORR, J.

Defendant appeals from a judgment of conviction

for unlawful delivery of methamphetamine, unlawful pos-

session of cocaine, and two counts of felon in possession of a

firearm. Although defendant raises five assignments of error

in total, we need only address the first: the contention that

the trial court erred in denying his motion to suppress evi-

dence discovered after he was arrested pursuant to a “parole

violation warrant.” In the trial court, defendant argued that

the arrest violated his rights under Article I, section 9, of

the Oregon Constitution and alleged that the warrant was

invalid because it failed to include any oath or affirmation.

The state asserted that the arrest was authorized by a valid

warrant but did not produce the warrant as evidence. For

the reasons that follow, we reverse and remand for further

proceedings.1

In reviewing the denial of a motion to suppress,

we are bound by the trial court’s factual findings if consti-

tutionally sufficient evidence in the record supports them.

State v. Ehly, 317 Or 66, 74-75, 854 P2d 421 (1993). Where

the court did not make express factual findings, we presume

that the facts were decided in a manner consistent with the

court’s ultimate conclusion. State v. Middleton, 294 Or App

596, 597, 432 P3d 337 (2018). We state the relevant facts

consistently with that standard.

Detective Seanor received information that defen-

dant was dealing methamphetamine. An investigation

followed in which Seanor searched for defendant in an

unnamed “law enforcement database” and discovered that

defendant had “a felony warrant for his arrest” related to

an “underlying charge” for delivery of methamphetamine.

Seanor did not see “the physical warrant with the judge’s

signature” or observe an affidavit, but only saw “the com-

puter entry that flagged the warrant.” Seanor believed that

the warrant was a “parole and probation warrant.”2

1

Defendant’s second, third, fourth, and fifth assignments of error allege var-

ious sentencing errors. Because we reverse and remand for further proceedings

on the basis that the trial court erred in denying defendant’s motion to suppress

all the evidence in this case, we need not reach those remaining assignments.

2

The record does not clearly establish whether the “warrant” in question

was a warrant in the usual sense or a supervisory authority order, as authorized

254 State v. Perrodin

Seanor and other detectives briefly surveilled defen-

dant and observed him leave an apartment, get into a van,

and drive into another part of the same apartment complex.

When defendant stopped, Seanor parked behind him and

arrested him on the “parole violation warrant.” Subsequent

to the arrest, Seanor asked defendant if he had any “drugs”

on him, and defendant admitted that he had “drugs” in his

pocket. Seanor searched defendant and discovered meth-

amphetamine, a small bag of cocaine, and $1,000 in cash.

Detectives next searched defendant’s van, where a half

pound of methamphetamine, $4,000 cash, and two firearms

were discovered. Detectives applied for and were granted a

search warrant for the apartment based on the above facts.

A third firearm was discovered in the apartment.

Defendant filed a variety of pretrial motions. As rel-

evant here, he contended in his first motion to suppress that

“[t]he arrest and subsequent search of [defendant] was

unlawful. In order to be a lawful arrest on a warrant[,]

the warrant must be based on probable cause, supported

by oath or affirmation. The warrant in this case was not

supported by any oath or affirmation and lists no proba-

ble cause on its face. As such, the arrest was illegal and

any and all evidence stemming from the arrest must be

suppressed.”

(Internal citation omitted.) The state filed a response, con-

tending that “[t]he defendant was validly stopped and

arrested pursuant to a parole violation warrant.” The state

argued that,

“[p]ursuant to ORS 144.360, parole violation warrants are

afforded the same treatment under the law as any other

warrant. Prior to surveilling the [apartment], Detective

Seanor confirmed that the defendant had an outstanding

parole violation warrant. Detective Seanor identified the

defendant as he left [the apartment]. Upon making con-

tact with the defendant, Detective Seanor had reasonable

grounds to arrest the defendant for the outstanding parole

violation warrant.”

by ORS chapter 144. In both trial and appeal arguments, the parties treat the

alleged authority to arrest defendant as a warrant and, for purposes of this

appeal, we assume, without deciding, that it was. Cf. ORS 144.360 (stating that

“all the laws applicable to warrants of arrests shall apply to [supervisory author-

ity] orders”).

Cite as 315 Or App 252 (2021) 255

At a hearing on the motion to suppress, Seanor

testified to the above facts regarding his investigation and

arrest of defendant. No other witnesses were called, and no

exhibits were admitted as evidence. Importantly, neither

party admitted the warrant itself.

In its closing argument at the suppression hearing,

the state first asserted that “this is the first time the defense

is challenging the validity of the underlying parole violation

warrant. If he wishes to do so he needs to file a motion and

we will hear that before trial I suppose.” Defense counsel

responded that he had challenged the validity of the under-

lying warrant in a written motion to suppress and directed

the court to the relevant section. The following exchange

then occurred:

“THE COURT: I assume, I assume you rely on the reg-

ularity of, that a warrant, unless proven otherwise, is a

warrant.

“THE STATE: That’s correct, Your Honor. With regards

to the rest of the motion to suppress, the State has very

clearly outlined, in its response, its viewpoint that [defen-

dant] was stopped and arrested pursuant to a valid parole

violation warrant.”

The state made no further argument regarding the arrest

itself.

In defendant’s closing argument, he asserted that

“there’s no evidence that the State has presented about the

validity of the warrant.” Citing State v. Noble, 314 Or 624,

842 P2d 780 (1992), State v. Beckstead, 164 Or App 538,

994 P2d 174 (1999), and State v. Brown, 96 Or App 171, 772

P2d 429 (1989), he contended that “[o]nce raised, this is on

the State to prove the validity of that warrant.” Defendant

added that,

“before we filed the motion, we contacted the board of

parole and probation, asked if there was an affidavit for

the warrant.

“They told us there wasn’t, that it was just a text from

an officer requesting that the parole board issue a warrant.

That’s not sufficient to be a valid warrant under the consti-

tution and under the cases cited.

256 State v. Perrodin

“Without a valid warrant there’s really no point in mov-

ing on if he’s, invalidates the entire arrest, everything else

flows from that arrest.”

Finally, in a one-sentence rebuttal argument, the state “reit-

erat[ed] that warrants are presumptively valid.”

The trial court denied defendant’s suppression

motion. As to the arrest itself, the court made no factual find-

ings and stated only, “I find that the defendant was appro-

priately and lawfully arrested on an outstanding warrant,

as, that existed in the database.” The parties proceeded to a

bench trial, and defendant was convicted on all counts.

As explained above, defendant assigns error to the

trial court’s denial of his motion to suppress the evidence

discovered subsequent to his warrant-based arrest. We

review such rulings for legal error. Ehly, 317 Or at 74-75.

On appeal, defendant argues that, once he chal-

lenged the arrest warrant as invalid and alleged that it

was not supported by oath or affirmation, that “placed the

burden on the state to present evidence that the warrant

was supported by oath or affirmation.” Although defendant

admits that, “in other contexts, the usual rule is that a defen-

dant has the burden of proving the invalidity of a warrant

and the state has the burden of proof only when it defends

a warrantless search or seizure,” he contends that that rule

is inapplicable when a defendant alleges that a warrant

lacks any oath or affirmation establishing probable cause.

The state, on the other hand, contends that defendant’s

arrest was “constitutionally reasonable” because Seanor

had subjective and objective probable cause to believe that

defendant’s arrest was authorized by a warrant. The state

contends that its failure to produce the warrant is irrele-

vant. In support of that argument, the state cites State v.

Dodge, 223 Or App 130, 195 P3d 442 (2008), rev den, 346

Or 66 (2009), where we affirmed the trial court’s denial of

the defendant’s motion to suppress the evidence under sim-

ilar circumstances. In the state’s assessment, we “need not

decide the ‘burden’ question” that defendant raises. In turn,

defendant asserts that Dodge is distinguishable and, if not,

“plainly wrong.”

Cite as 315 Or App 252 (2021) 257

We begin by considering whether our holding in

Dodge controls the outcome of this case, as the state asserts.

In Dodge, officers had noticed the defendant’s name on an

“ ‘unentered warrant’ list, a document compiled by the com-

munity court listing warrants that have been issued but

have not yet been entered into the system.” 223 Or App

at 132. The officers knew the defendant due to previous

encounters and saw him downtown later that same day. Id.

The defendant was arrested and searched, leading to the

discovery of evidence. Id.

Our opinion in Dodge is sparse on what happened

procedurally. We related that the defendant filed a motion

to suppress challenging the lawfulness of the arrest, but we

did not clarify whether he challenged the warrant, asserted

that the arrest was not lawful as a warrantless arrest

because it was not supported by probable cause, or both. Id.

Likewise, our opinion is unclear as to how the state defended

the arrest and on what theory or theories. We related only

that, at the hearing on that motion, the state did not admit

the “unentered warrant” list or the warrant itself. Id. The

trial court denied the motion. Id.

On appeal, we framed the defendant’s assignment

of error as contending that the evidence “should have been

suppressed because it derived from an arrest that the state

failed to prove was justified by probable cause; the state,

he points out, never produced the arrest warrant or the

unentered warrant list.” Id. at 132-33. We then proceeded

to apply our law controlling warrantless arrests, analyzing

whether the officers possessed subjective and objective prob-

able cause to arrest the defendant. Id. at 133.

We first analyzed subjective probable cause, con-

cluding that the officers’ testimony that they had seen the

defendant’s name on an unentered warrant list was suffi-

cient to establish that the officers believed that they had

“lawful authority to restrain the individual’s liberty.” Id.

(citing State v. Miller, 345 Or 176, 185, 191 P3d 651 (2008)).

We then analyzed whether that subjective belief was objec-

tively reasonable. Id. Testimony established that the list

showed unentered warrants from the community court and

that the officers picked up the list every week as soon as it

258 State v. Perrodin

was published. Id. In light of that evidence, we concluded

that it was “objectively reasonable for an officer who sees a

person’s name on such a document to believe that the court

has issued a warrant for that person’s arrest.” Id. Lastly, we

explained that the officers would have had probable cause

to arrest the defendant under these circumstances even

if it was later discovered that a valid arrest warrant did

not actually exist. Id. In doing so, we relied primarily on a

Vietnam War-era case that cited both state and federal case

law in holding that police had probable cause to arrest an

individual who they reasonably believed, based on reports

from dispatch, was wanted by military authorities for deser-

tion, even though it was later discovered that that informa-

tion was false. Id. at 133-34 (citing State v. Somfleth, 8 Or

App 171, 492 P2d 808 (1972)).

Having concluded that the officers had probable

cause to arrest the defendant, we affirmed the denial of the

defendant’s motion to suppress. Id. at 134. In a footnote to

that ultimate conclusion, we clarified that, even though the

trial court had concluded that the arrest was lawful based

on a slightly different theory, our affirmance was appro-

priate because subjective and objective probable cause was

“also argued to the trial court on a fully developed factual

record.” Id. at 134 n 1.

Although our opinion in Dodge was admittedly

unclear in some respects, several key takeaways are appar-

ent. First, even though the evidence supported that the offi-

cers believed that there was a valid warrant for the defen-

dant’s arrest, we did not apply our law regarding warrants

in our analysis. Instead, we analyzed the seizure under

our warrant exception law, the body of law that generally

applies when the arresting officers do not possess a warrant.

This is evident from our analysis of whether the officers pos-

sessed subjective and objective probable cause to arrest the

defendant. Second, even though our summary of the rele-

vant procedural facts was sparse, we can assume that the

parties litigated whether the arrest was a valid warrantless

arrest in the trial court. Although not explicitly stated, that

conclusion is evident from our application of the “right for

the wrong reason” doctrine and our assertion that the basis

for our decision—that the officers possessed subjective and

Cite as 315 Or App 252 (2021) 259

objective probable cause to make a warrantless arrest—was

“also argued to the trial court on a fully developed factual

record.” Id.

In light of the above, we understand Dodge to stand

for the proposition that, when an officer arrests an individ-

ual based on the belief that there is a warrant for that per-

son’s arrest, the court need not decide the validity of the

underlying arrest warrant if the state argues, and proves,

that the arrest was valid under our warrant exception law—

specifically, that the officers possessed subjective and objec-

tive probable cause to arrest the defendant without a war-

rant. Under those specific circumstances, the state need not

establish the actual existence or validity of the warrant and,

as a result, need not admit the warrant into evidence either.

The facts in Dodge were such that the state did argue and

prove that the officers possessed probable cause to make a

warrantless arrest. As a result, the state’s failure to admit

the warrant into evidence was of no import in that case.3

In the instant case, however, the procedural history

below was markedly different. Defendant challenged his

arrest on the basis that the warrant that allegedly autho-

rized it was essentially facially defective, contending that

the warrant did not contain a sworn statement. The state

contended, in a written response to defendant’s motion and

in argument before the trial court, that the arrest was law-

ful because it was supported by a valid warrant. However,

the state never produced the warrant in response to defen-

dant’s challenge. The state also never raised the alternative

or additional argument that the arrest was valid as a war-

rantless arrest supported by probable cause, and the officers

never testified that they believed they had probable cause to

arrest defendant.

3

We ultimately conclude that Dodge is distinguishable from the instant

case, and, for that reason, we need not address defendant’s argument that Dodge

is “plainly wrong.” There may be unresolved questions about Dodge’s analysis

that we leave for another day; that said, we note that, although our opinion in

Dodge failed to elaborate on the arguments litigated before the trial court, the

briefing submitted by the parties on appeal did. The procedural history and the

arguments on appeal recounted in the parties’ briefs are consistent with our con-

clusion that the parties fully litigated the issue of whether the arrest was valid

as a warrantless arrest supported by probable cause. In any event, addressing

whether Dodge is plainly wrong is not necessary to our consideration of the mer-

its of the instant case.

260 State v. Perrodin

The state does not acknowledge those procedural

distinctions between the instant case and Dodge. Instead,

the state asks us to read the trial court’s conclusion that

“defendant was appropriately and lawfully arrested on an

outstanding warrant, as, that existed in the database” as

a determination by the court that defendant’s arrest was

valid as a warrantless arrest supported by probable cause,

even though the state never raised that theory and the par-

ties made no arguments to that effect below. We decline to

interpret the court’s unclear ruling in such a fashion. The

only interpretation of the court’s ruling that is supported

by the arguments and evidence below is that the court was

concluding that defendant’s arrest was lawful because it

was authorized by an arrest warrant. Thus, because Dodge

addressed a legal issue that was not raised to the trial court

in the instant case, it does not instruct our analysis.4

Our law regarding the oath and affirmation require-

ment is well established. Article I, section 9, provides that

“[n]o law shall violate the right of the people to be secure in

their persons, houses, papers, and effects, against unrea-

sonable search, or seizure; and no warrant shall issue but

upon probable cause, supported by oath, or affirmation, and

particularly describing the place to be searched, and the

person or thing to be seized.”

(Emphasis added.) Except for limited exceptions, all war-

rants must be supported by oath or affirmation. Noble, 314

Or at 632 (“[W]e hold that Article I, section 9, of the Oregon

Constitution requires that, before a bench warrant for the

arrest of a person may issue for any conduct other than

conduct occurring in the presence of the court (as we have

explained that concept), the issuing magistrate must deter-

mine that there exists probable cause supported by a sworn

statement.”); see also State v. Nunn, 99 Or App 503, 505,

4

To the extent that the state would have us affirm this case as a valid war-

rantless arrest supported by probable cause pursuant to our “right for the wrong

reason” doctrine, we decline to do so here, where the state made no argument on

appeal that we should do so and where the record could have been different had a

warrant exception theory been raised below. See Outdoor Media Dimensions Inc.

v. State of Oregon, 331 Or 634, 660, 20 P3d 180 (2001) (“[I]f the losing party might

have created a different record below had the prevailing party raised that issue,

and that record could affect the disposition of the issue, then we will not consider

the alternative basis for affirmance.” (Emphasis in original.)).

Cite as 315 Or App 252 (2021) 261

783 P2d 26 (1989) (“Article I, section 9, does not specify a

procedure for determining whether an affidavit is supported

by oath or affirmation; it simply requires that it, in fact,

be so supported.”). When a court determines that the war-

rant authorizing a search or seizure did not contain a sworn

statement of probable cause, evidence discovered as a result

of that search or seizure is subject to suppression. Noble, 314

Or at 632.

Thus, a warrant must be supported by a sworn

statement of probable cause and is constitutionally defec-

tive if it is not. And although defendant proposes that it is

unclear under our existing law who bears the burden when

a warrant is challenged as defective for that reason, we

disagree. When the state chooses, as it did here, to defend

an arrest on the theory that it was predicated on a valid

warrant, the state bears an initial burden to produce that

warrant, before the ultimate burden of proof shifts to the

defendant to prove the alleged defect.

The general rule is that the state bears the bur-

den of proof in a suppression hearing when a search or sei-

zure is warrantless, and the defendant bears the burden of

proof when the search or seizure is authorized by a warrant.

State v. Walker, 350 Or 540, 553, 258 P3d 1228 (2011); see

also State v. Johnson, 335 Or 511, 520, 73 P3d 282 (2003)

(“[W]hen state agents have acted under authority of a war-

rant, the burden is on the party seeking suppression (i.e.,

the defendant) to prove the unlawfulness of a search or

seizure.”). When a defendant challenges a warrant-based

search or seizure, we apply the principle that warrants are

presumptively valid. Walker, 350 Or at 554. Those general

rules remain.

However, we cannot apply the rule that “warrants

are presumptively valid” when a defendant effectively chal-

lenges the existence of the warrant or supporting affidavit,

and the state then fails to produce the warrant or affidavit

within its control. For certain warrant challenges, the court

need only look to evidence outside the warrant. In State v.

Hall, for instance, we considered whether it was erroneous

for the trial court to grant a motion to suppress because the

state had failed to introduce the warrant, when the motion

262 State v. Perrodin

had conceded that the warrant existed and only raised a

challenge to the proper scope of the officers’ search. 166 Or

App 348, 357, 999 P2d 509 (2000). We concluded that “[t]he

terms of the warrant are not necessary for our resolution

of defendants’ argument, nor was the state required to pro-

duce the initial warrant into evidence.” Id. at 359.

However, other warrant challenges require that

the court look to the warrant or affidavit itself. In State v.

Jennings, for instance, we considered whether a “duplicate

original written warrant” that authorized the search for

and seizure of certain evidence was more expansive than

the issuing judge’s prior oral authorization. 220 Or App 1,

3-4, 184 P3d 1200 (2008). We began our analysis by summa-

rizing the “well[-]settled” principles governing our review,

including that, “[b]y introducing the [written] warrant at the

hearing on defendant’s motion to suppress, the state made a

prima facie case that the search was lawful; the burden then

shifted to defendant to prove that the warrant was invalid.”

Id. at 4-5; see also Hall, 166 Or App at 357 (noting that, had

the defendant challenged the existence of a valid warrant,

“the state would have had the burden of establishing the

existence of the warrant[ ]”). In short, whether the state car-

ries a burden to produce the warrant in a suppression hear-

ing depends on both the nature of the defendant’s challenge,

and the nature of the state’s defense to that challenge. See,

e.g., Wayne R. LaFave, 6 Search and Seizure § 11.2(b), 49,

63 (6th ed 2020) (explaining that “[i]t is not inevitably true

that the burden of production and the burden of persuasion

must both fall upon the same party” and that policy consid-

erations may favor placing “the burden of production on the

party who has the greater access to the relevant facts”).

We conclude that the burden of production discussed

in Jennings is applicable here. When a defendant moves to

suppress evidence discovered following his warrant-based

arrest on the grounds that the warrant was invalid because

it was not supported by oath or affirmation, the state, in

turn, is faced with two choices—to defend the arrest as

supported by a valid warrant, or, alternatively, to present

and prove a case that the arrest was valid as a warrantless

arrest supported by probable cause. When the state chooses

to proceed on the first theory, the state must produce the

Cite as 315 Or App 252 (2021) 263

warrant. Once that initial showing is made, the burden

shifts to the defendant to prove that the warrant was in fact

invalid.5

We apply the above conclusions to the instant case.

Here, defendant moved to suppress the evidence discovered

subsequent to his warrant-based arrest, alleging that the

arrest warrant was not supported by a sworn statement of

probable cause. To adequately respond to that challenge, the

state needed to either produce the warrant or prove that

the arrest was lawful as a warrantless arrest supported

by probable cause. The state did neither. Because the trial

court concluded that the arrest was authorized by a war-

rant despite the fact that no warrant was admitted into

evidence, the court erred in denying defendant’s motion to

suppress all evidence discovered as a result of the arrest.

That error directly led to defendant’s convictions and was

not harmless. As a result, we reverse and remand to the

trial court to enter an order suppressing all evidence in this

case, including defendant’s statements, the evidence discov-

ered on defendant’s person, the evidence discovered in the

van defendant was driving, and the evidence subsequently

seized via search warrant from the apartment defendant

had been observed leaving prior to his arrest.

Reversed and remanded.

5

We state no opinion on whether the state must produce the warrant in

response to other types of warrant challenges not at issue in this case.