STATE v. CRUZ-AGUIRRE, 179 Or. App. 546 (2002)

40 P.3d 560

95CR3094FE; A97471Oregon Court of Appeals.Submitted on remand December 11, 2001.
Filed: February 13, 2002

On remand from the Oregon Supreme Court, State v. Cruz-Aguirre, 332 Or. 627, 34 P.3d 166 (2001).

Appeal from Circuit Court, Douglas County. Joan G. Seitz, Judge.

Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, for appellant.

Sally L. Avera, Public Defender, and Diane L. Alessi, Deputy Public Defender, for respondent.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,[*] and ARMSTRONG, Judge.

PER CURIAM

Order of suppression vacated and remanded.

Page 547

PER CURIAM

The state appeals a trial court order suppressing evidence in this prosecution for delivery and possession of a controlled substance. The trial court held that the officer violated ORS 810.410(3)(b) before he obtained defendant’s consent to a search of his vehicle. We originally reversed the order of suppression on the ground that, under ORS 136.432, a violation of ORS 810.410(3)(b) does not lead to the suppression of evidence obtained as a result of the violation. State v. Cruz-Aguirre, 158 Or. App. 15, 972 P.2d 1206 (1999). The Supreme Court thereafter vacated our decision and remanded the case for reconsideration in light of State v. Fugate, 332 Or. 195, 26 P.3d 802 (2001). State v. Cruz-Aguirre, 332 Or. 627, 34 P.3d 166 (2001).

Under Fugate, ORS 136.432 violates Article I, section 21, of the Oregon Constitution, to the extent that it applies to crimes committed before the statute’s effective date, as was defendant’s alleged offense. 332 Or. at 214-15. We therefore erred in reversing the order of suppression outright. In State v. Toevs, 327 Or. 525, 964 P.2d 1007 (1998), which was decided after the trial court decision in this case, the Supreme Court established the analysis that a court should use in determining whether there was a violation of ORS 810.410(3)(b). We vacate the order of suppression and remand for the trial court to engage in that analysis. If it again finds a violation, it shall re-enter the order; if it does not, it shall enter an order denying the motion to suppress.

Order of suppression vacated and remanded.

Page 548