No. 975 October 14, 2026 657
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL JAMES GILL,
Defendant-Appellant.
Lane County Circuit Court
24CR00275; A183909
Michelle P. Bassi, Judge.
Submitted December 4, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
SHORR, P. J.
Conviction on Count 2 vacated and remanded; remanded
for resentencing; otherwise affirmed.
658 State v. Gill
SHORR, P. J.
Defendant appeals from a judgment of conviction
for one count of fleeing or attempting to elude a police officer (attempting to elude), ORS 811.540, and one count of felon in possession of a firearm (FIP), ORS 166.270(1).1 He assigns
error to the trial court’s denial of his motion to suppress evidence discovered during a search following a traffic stop. Defendant argues that his consent to the search was not
voluntary, and even if it was voluntary, the officer’s conduct exceeded the scope of consent. We conclude that the officer’s search exceeded the scope of defendant’s consent. However,
we also conclude that remand is necessary for the court to
make further fact finding regarding the state’s alternative basis for affirmance, which is based on an argument that
had been raised at trial but not decided by the trial court. As a result, we vacate the FIP conviction. We affirm, however, the conviction for attempting to elude because any error was harmless as to that charge. Accordingly, we vacate and
remand in part and affirm in part.
We review the trial court’s denial of a motion to
suppress for errors of law and are bound by the trial court’s factual findings as long as there is constitutionally sufficient evidence to support them. State v. Tennant, 310 Or App 70, 72, 483 P3d 1226 (2021). We state the relevant facts accordingly. Around midnight one evening, Officer Fanning observed a
truck with no plates that was speeding, and he initiated a
traffic stop. Defendant, the driver of the truck, kept driving for about another mile, but eventually stopped after turning onto a private road blocked by a closed gate. Fanning
handcuffed defendant and secured defendant in the back of
his patrol vehicle. When he handcuffed defendant, Fanning
believed he had probable cause for the crime of attempting to elude but did not have probable cause for any other
crimes. After securing defendant, Fanning walked to defendant’s truck and shined a flashlight into the interior to verify that there were no other occupants in the vehicle. He also
called dispatch and learned that defendant had outstanding
arrest warrants. He returned to defendant and read him the
1
The trial court dismissed Count 3, unlawful possession of a firearm, on the state’s motion.
Cite as 353 Or App 657 (2026) 659
Miranda rights, after which defendant admitted that he was
not going to stop for the officer “because I got warrants.”
Another officer arrived and Fanning asked him to
search defendant for weapons while Fanning returned to
defendant’s truck to see if anything was in plain view. The front door of the truck was still open, and Fanning noticed two license plates in the front compartment, which he
grabbed without asking for defendant’s consent.2 Fanning
also noticed a license plate in the back seat, and after running the plate, learned that it was associated with a vehicle reported as stolen. At that point, approximately 12 minutes had elapsed since Fanning handcuffed defendant. After
learning that the plate in the back seat was stolen, Fanning believed he had probable cause for theft by receiving.
When Fanning returned to his patrol vehicle to
talk to defendant, defendant asked whether his mother
could come pick up the truck. Fanning ignored that request. Fanning’s body camera footage subsequently recorded the
following exchange:
“OFFICER FANNING: * * * [W]ould you give me
consent to just grab the plate from the rear of the truck?
Because if not, I’ve got to talk to Lane County and your
truck could be seized.
“[DEFENDANT]: Well, I’m pretty sure that you
already got something up your—you know, I know there’s—I
know there’s a loophole and some kind of trickery—
“OFFICER FANNING: No loopholes. I’m being
straight up with you.
“[DEFENDANT]: You’re just grabbing the plate?
“OFFICER FANNING: Yeah.
“[DEFENDANT]: That’s it?
“OFFICER FANNING: Yeah. I don’t care about the
weed in your vehicle or anything like that. You know, as
long as you’re not smoking or driving—
“[DEFENDANT]: No.
2
Fanning ran the two license plates that he retrieved from the front compartment and learned that they were associated with the truck. 660 State v. Gill
“OFFICER FANNING: —you’re fine.
“[DEFENDANT]: Go ahead and grab the plate.
“OFFICER FANNING: Okay.”
The license plate was leaning against a backpack
on the back seat, positioned in between the body of the backpack and its straps. Fanning moved the front seat forward
in order to access the license plate through the open front door. He lifted and moved the backpack and a pillow and
then retrieved the license plate. After moving the backpack, Fanning saw what appeared to be a shotgun that was
partially covered with clothing. Fanning moved the clothing and confirmed it was a shotgun. At that time, another
officer informed Fanning that defendant wanted to know
why Fanning was taking so long to retrieve the plate, and
again relayed defendant’s consent for Fanning to “get the
plate but nothing else.” Fanning informed defendant that
he saw a shotgun in the vehicle after moving the backpack.
He obtained defendant’s permission to remove the shotgun
from the truck, and later obtained a search warrant and
found additional ammunition in the truck.
Defendant moved pretrial to suppress all evidence
resulting from the warrantless search of his vehicle. He
argued that he did not voluntarily consent to the search and that the officer’s conduct exceeded the scope of any consent validly given. At the hearing, Fanning testified about the
encounter, and the state admitted his body camera footage
as an exhibit. The trial court denied the motion to suppress, concluding that defendant “voluntarily gave limited consent to retrieve the license plate,” and that the officer’s actions were “not beyond the scope of the consent.” The case then
proceeded to trial, and a jury found defendant guilty of
attempting to elude and felon in possession of a firearm.
On appeal, defendant challenges the trial court’s
denial of his motion to suppress. Reprising the arguments
he made at the hearing, he argues that his consent was not
voluntary and that, even if it was voluntary, Fanning’s conduct exceeded the scope of his consent. The state disputes
those arguments and, alternatively, urges us to affirm
Cite as 353 Or App 657 (2026) 661
because the intrusion was permissible as a search incident
to arrest.
A warrantless search violates Article I, section 9, of
the Oregon Constitution unless it is done pursuant to “one of the few specifically established and well-delineated exceptions to the warrant requirement.” State v. Sunderman,
304 Or App 329, 336, 467 P3d 52 (2020) (internal quotation
marks omitted). Consent is one such exception. Id. Under the consent exception, the state must prove by a preponderance
of the evidence that (1) someone having the authority to do so voluntarily consented to the search and (2) the search did not exceed the scope of the consent given.3 Tennant, 310 Or App at 75.
We typically would begin with whether defendant’s
consent was voluntary. However, we need not decide that
issue here. Even if defendant’s consent was voluntary, we
would still, as we discuss below, conclude that Fanning
exceeded the scope of defendant’s consent. It is undisputed that defendant told Fanning he could “grab the plate.” The
parties dispute whether Fanning exceeded the scope of that
consent when he moved a backpack and pillow in the process of retrieving the plate. The state argues that the scope of defendant’s consent included allowing Fanning to move
those objects because doing so was reasonably related to
retrieving the plate. Whether a particular search falls within the scope of a defendant’s consent requires the trial court to determine, as a factual matter based on the totality of
the circumstances, “what the defendant actually intended.”
State v. Blair, 361 Or 527, 537, 396 P3d 908 (2017). We must therefore decide whether the trial court’s factual determination that Fanning did not exceed the scope of defendant’s consent is supported by the record. State v. Cross, 316 Or
App 506, 512, 502 P3d 753 (2021).
In this case, Fanning asked for defendant’s consent to “just grab the plate from the rear of the truck.”
Defendant initially expressed suspicion that Fanning was
engaged in “some kind of trickery.” But defendant gave consent after confirming that Fanning would “just grab[ ] the
3
The parties do not dispute that defendant had authority to consent to the search of his vehicle.
662 State v. Gill
plate” and “[t]hat’s it.” Based on that language, under the circumstances, the only permissible finding for the trial
court to make was that defendant meant what he said—that
Fanning could just grab the plate and that is it. See Blair, 361 Or at 537 (“[W]hat a person says is often the best indicator of what the person intended.”). The record does not allow a finding that defendant impliedly consented to the officer touching other objects in the truck. Cf. State v. Soprych, 324 Or App 659, 665, 527 P3d 808 (2023) (even where the defendant did not state any express restrictions, police exceeded the scope of the defendant’s consent to unlock and enter his bedroom when they used the key ring he provided to also
open a locked safe in the bedroom). Defendant’s later statements confirmed the limits of his consent. Approximately
one minute after defendant gave consent and before defendant knew that Fanning had discovered the shotgun, defendant expressed concern that Fanning was still rummaging
in the back seat of the truck and stated that Fanning could “get the plate but nothing else.” Cf. Cross, 316 Or App at 512 (record demonstrated that the defendant intended scope of
consent to include a brown leather bag, in part because the defendant never objected to the officer searching it).
Fanning’s request for consent was also limited
to “just” the license plate. See Blair, 361 Or at 538 (when the requesting officer “make[s] clear to a suspect what the objects of the requested search are and what level of scrutiny is sought,” that helps to further clarify the defendant’s intent). Fanning testified that he “could have” retrieved the plate without moving anything, but moved the items out
of safety concerns. Whether Fanning needed to move the
backpack and pillow in order to more easily or safely access the license plate are issues we need not decide.4 Fanning’s request did not indicate to defendant that he needed to take additional actions beyond reaching in and grabbing the
license plate. Nor do defendant’s statements demonstrate
that he understood Fanning might move other objects in
the truck while accessing the plate and intended to consent to that. The record does not support the trial court’s factual determination that defendant intended the scope of his
4
We note, however, that in the video, the license plate appears to be retrievable without needing to move the backpack or pillow.
Cite as 353 Or App 657 (2026) 663
consent to include the actions taken by Fanning. Rather,
the record indicates that defendant did not consent to those actions. The trial court erred in determining that Fanning’s conduct had not exceeded the scope of consent and denying
the motion to suppress on that basis.
We turn to the state’s proposed alternative basis for
affirmance. The state argues that Fanning’s search of the
truck was justified by the search-incident-to-arrest exception to the warrant requirement because he had probable
cause to arrest defendant for theft by receiving. The searchincident-to-arrest exception allows a warrantless search
incident to arrest for several purposes, including, as relevant here, “to discover evidence of the crime of arrest.” State v. Mazzola, 356 Or 804, 811, 345 P3d 424 (2015). But “a search incident to arrest need not relate to the crime for which
defendant was arrested so long as it relates to another crime for which the officer affecting the arrest also had probable cause.” State v. Nix, 236 Or App 32, 45, 237 P3d 842 (2010), rev dismissed as improvidently allowed, 350 Or 298 (2011).
The arresting officer may develop probable cause for a new
crime, thus justifying a search incident to arrest, during
the course of the arrest for the original crime. See State v. Owens, 302 Or 196, 205, 729 P2d 524 (1986) (applying the
exception to situations where the officer observed drug paraphernalia and developed probable cause for narcotics possession while lawfully searching the defendant’s purse for
stolen items after she had been observed shoplifting); Nix, 236 Or App at 34-35 (the officer developed probable cause for drug-related crimes during a valid pat-down search after
arresting the defendant on outstanding warrants). However,
in all events, a search must be reasonable in time, scope, and intensity in light of the relevant circumstances. Nix, 236 Or App at 42. The state bears the burden of demonstrating the
reasonableness of a warrantless search. State v. Ramirez,
305 Or App 195, 218, 468 P3d 1006 (2020).
The state argued below that Fanning had developed
probable cause to arrest defendant for theft by receiving,
and therefore the search of the truck was justified under the search incident to arrest exception. The trial court, having ruled that the search was lawful pursuant to defendant’s
664 State v. Gill
consent, declined to make any findings as to whether or not Fanning had independent probable cause to have searched
the truck on that basis. Because fact finding is necessary in order to resolve the issue, both as to the existence of probable cause and the reasonableness of the search under such
circumstances, we conclude that it is appropriate to vacate defendant’s conviction and for the trial court to make further findings on remand. See State v. Plummer, 134 Or App
438, 442, 895 P2d 1384 (1995) (concluding that the trial
court erred when it concluded that the defendant’s arrest
for assault precluded any warrantless search incident to
arrest for contraband when the officer might have had probable cause to arrest the defendant for possession of a controlled substance, and remanding for fact finding regarding the existence of probable cause and whether the search
was reasonable in view of all the facts); see also Sherertz v. Brownstein Rask, 314 Or App 331, 341, 498 P3d 850 (2021),
rev den, 369 Or 338 (2022) (“When an alternative argument
was made in the trial court * * * [and] is properly presented again on appeal and raises a question of law, we may simply resolve it, typically remanding only if it is necessary for the trial court to make factual findings from conflicting evidence, exercise discretion, or the like.”).5
Finally, we turn to whether the error of exceeding
the scope of consent was harmless. We must affirm despite
error if there was “little likelihood” that the error affected the jury’s verdict. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). As to Count 2, the FIP charge, we readily conclude that the erroneous denial of defendant’s motion to
suppress evidence of the firearm was not harmless. Without
5
We additionally note that the scope of the search incident to arrest exception is currently pending before the Oregon Supreme Court. State v. Barajas, 332 Or App 252 (nonprecedential memorandum opinion), rev allowed, 372 Or 763 (2024). The issue before the court in that case pertains directly to this matter:
“May police rely on the search incident to arrest exception under Article I,
section 9, of the Oregon Constitution to search the inside of a car when the
arrestee is physically removed from the car, is handcuffed in police custody,
and where no other exigent circumstances prevent the state from seeking a
warrant?”
Amended Petition for Review of Defendant-Appellant at 7, State v. Barajas, 332 Or App 252 (nonprecedential memorandum opinion), rev allowed, 372 Or 763 (2024) (SC S071120). Any resulting refinement of the search incident to arrest doctrine can be applied on remand.
Cite as 353 Or App 657 (2026) 665
the firearm, discovered after Fanning exceeded the scope of defendant’s consent, the state would have had no evidence to support that charge.
We conclude, however, that the error was harmless as to Count 1, attempting to elude. The jury watched
Fanning’s body-cam video that showed defendant admit that
he was not going to stop “[b]ecause I got warrants.” That
admission occurred before Fanning exceeded the scope of
defendant’s consent. The state repeatedly referred to defendant’s admission in closing argument when it contended
that defendant was knowingly attempting to elude the officer.6 Defendant did not address that evidence in closing.
Instead, defense counsel argued that defendant did not drive for “very long” after the officer turned his police lights and siren on. Defense counsel contended that defendant slowed
down and pulled over within half a mile at the first safe spot when he realized that the officer was signaling him with his siren. The jury necessarily rejected that defense. Although the fact that he was a felon in possession of a firearm may also have given defendant a reason to elude and put him in
a negative light before the jury, defendant stated that he did not pull over “[b]ecause I got warrants” and the state relied on that admission in its closing. In those circumstances, we conclude that the trial court’s error in denying the motion to suppress, which led to the admission of the firearm evidence, was harmless and had little likelihood of affecting
the verdict as to Count 1. We therefore vacate and remand
Count 2 (FIP) but affirm the conviction on Count 1 (attempting to elude).
Conviction on Count 2 vacated and remanded;
remanded for resentencing; otherwise affirmed.
6
Defendant contends that the prosecutor’s closing argument made the admission of the shotgun evidence not harmless on the attempting-to-elude charge. At the conclusion of its closing, the prosecutor argued that defendant “made a choice to keep [the shotgun] with him in his backseat. And when he saw Officer Fanning driving behind him, he made a choice to speed away.” In context, we understand the prosecutor to be summarizing the evidence on the two different charges, FIP and attempting to elude. The prosecutor earlier had argued that defendant had intended to elude based on his knowledge of his outstanding warrants, which is what defendant had admitted to the officer. In either case, we conclude that any error was harmless on the attempting-to-elude charge.