Summary
rejecting warrant-based inevitable discovery argument where, once information obtained as a result of original unlawful seizure of evidence was excised from application for subsequent warrant to seize the same evidence, the warrant application was insufficient to establish probable cause
Summary of this case from State v. Lovaina-BurmudezOpinion
Nos. 08051338C; A140036.
February 23, 2011.
Appeal from Malheur County Circuit Court, Russell B. West, Judge.
On respondent's petition for reconsideration filed November 30, 2010. Opinion filed November 17, 2010. 238 Or. App. 582, 243 P.3d 480.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Michael A. Casper, Assistant Attorney General, for petition.
Before Wollheim, Presiding Judge, and Brewer, Chief Judge, and Rosenblum, Judge.
PER CURIAM
Reconsideration allowed; former disposition withdrawn; convictions on Counts 2 and 3 reversed; remanded for resentencing; otherwise affirmed.
The state petitions for reconsideration of our decision in this case, State v. Hartman, 238 Or. App. 582, 243 P.3d 480 (2010), arguing that this court erred in its disposition of the case. In our original opinion, we reversed the trial court's denial of defendant's motion to suppress evidence, and, consequently, we reversed and remanded the case. The state points out that the evidence at issue in defendant's motion concerned only two of the seven counts of which defendant was convicted and, thus, our disposition properly should have been to affirm defendant's convictions on the counts not affected by our reversal of the trial court's denial of defendant's motion to suppress. The state's point is well taken.
Reconsideration allowed; former disposition withdrawn; convictions on Counts 2 and 3 reversed; remanded for resentencing; otherwise affirmed.