Oregon permits an appellant to raise a new theory based on new case law arising after suppression hearing

Defendant’s argument in the trial court was voluntariness of consent, but it changed to exploitation of the original illegality of seeking consent during the stop, based on a case decided after trial but before the appeal. Because post-conviction relief would be inadequate or never get to the claim, and just in a general sense of fairness, the court elects to get to the merits and suppresses the search based on the intervening case. State v. Calvert, 214 Ore. App. 227, 164 P.3d 1169 (2007):

Counsel could have raised the exploitation issue to preserve an argument for a different understanding of exploitation under Article I, section 9, that is, for the understanding that the Supreme Court subsequently established in Hall [State v. Hall, 339 Ore. 7, 115 P.3d 908 (2005)]. However, there is no reason for counsel to have anticipated Hall, and counsel cannot be faulted for not developing on his own the analysis that the court adopted in Hall, an analysis that few people envisioned. Consequently, had counsel made an exploitation argument in this case, the trial court presumably would have rejected it, and, but for Hall, we presumably would have affirmed that decision on appeal if the issue had been preserved.

Hall, which came after the suppression ruling in this case, changed everything. As the state now concedes, Hall establishes that the police violated Article I, section 9, in obtaining the evidence that defendant sought to suppress in this case, notwithstanding that defendant consented to the search that produced the evidence. The state also does not argue that the record might have been different if defendant had made an exploitation argument in support of her suppression motion. In other words, raising and preserving the exploitation argument would have made no difference at the trial level, and there is no dispute that, under Hall, the denial of defendant’s motion to suppress now constitutes plain error. Hence, our decision to exercise our discretion in this case is consistent with preservation principles, because raising the exploitation argument below would have made no difference to the trial court’s ruling.

Finally, the error is not one that can be corrected through post-conviction relief. Before Hall, reasonable counsel could believe that there was no basis on which to seek suppression of the drug evidence in this case on exploitation grounds. Consequently, counsel’s failure to seek suppression on that basis would not constitute constitutionally deficient representation that would entitle defendant to obtain post-conviction relief from her conviction. Hence, were we not to exercise our discretion to correct the error in this case, defendant would be left with a conviction that is based on evidence that the state obtained in violation of defendant’s rights under Article I, section 9, and that defendant sought to suppress at trial under that provision. We are satisfied that it would be a mistake for us to affirm defendant’s conviction under the circumstances of this case.

Comment: How many courts would be that generous? My own wouldn’t. They would have no compunction in both finding procedural default or criticizing defense counsel for trying to protect the client’s interest. And they call their building the “Justice Building.” And they wonder why the criminal defense bar does not respect much of their work.

A custodial arrest of juvenile for truancy and possession of tobacco was not authorized under state law, so handcuffing the defendant and conducting a search incident of his pockets was unjustified. Small quantity of marijuana found should have been suppressed. State ex rel. Juvenile Dep’t v. J.D., 214 Ore. App. 251, 164 P.3d 1182 (2007).*