State v. Berg

An appellate court may affirm an erroneous order as harmless error if the alternate argument raised on appeal would have produced a record materially similar to the record produced under the erroneous order.

Defendant appealed a judgment of conviction for possession, delivery, and manufacture of methamphetamine. While responding to a 9-1-1 hang up, and officer saw a vehicle drive away, driven by Defendant. The officer stopped the car and after the officer’s dog alerted, the officers obtained a search warrant for the vehicle, and subsequently found methamphetamine. Defendant moved to suppress the evidence, arguing the search violated Article I, Section 9, of the Oregon Constitution. The trial court denied the motion. Defendant renewed his argument on appeal and the State conceded that the trial court erred in denying the motion. However, the State raised a different argument on appeal: That the stop was not a seizure under Article I, Section 9.  Under Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 660 (2001), the Court may affirm an erroneous order as harmless error if the alternate argument raised on appeal would have produced a record materially similar to the record produced under the erroneous order. Here, the Court found the outcome would have been different if the State had made its appellate argument. The Court therefore held the trial court erred by denying the motion to suppress because the error was not harmless. Reversed and remanded.