State v. Lipka

“The test for validity of a search incident to arrest is the reasonableness of the search in light of the circumstances of the particular case.” State v. Hernandez, 299 Or App 544, 551, 449 P3d 878 (2019), rev den, 366 Or 292 (2020).

Defendant appealed convictions for “felon in possession of a firearm, menacing constituting domestic violence, and harassment.”  Defendant assigned error to the trial court’s denial of “his motion to suppress evidence of a gun and related statements” obtained during a warrantless search.  On appeal, Defendant argued that the search incident to arrest was unlawful because the officer “did not search the bag” containing the gun “for evidence related to the crime of arrest.”  In response, the State argued that the officer had probable cause to arrest Defendant on a domestic-violence crime and the officer believed the gun was evidence of menacing.  “The test for validity of a search incident to arrest is the reasonableness of the search in light of the circumstances of the particular case.”  State v. Hernandez, 299 Or App 544, 551, 449 P3d 878 (2019), rev den, 366 Or 292 (2020).  The Court found that the officer had “no nonspeculative reason to believe” that the gun had been used to menace the victim.  Thus, the Court held that the trial court erred when it denied Defendant’s motion to suppress for the felon in possession and menacing charges.  The Court further held the trial court plainly erred when it accepted a nonunanimous verdict on the harassment charge.  Reversed and remanded.