STATE v. PRESLEY (1999)

The state appeals from a pretrial order that suppressed evidence on the ground that it was obtained in violation of ORS 810.410(3)(b).   Since the entry of the suppression order, the legislature has adopted ORS 136.432, which provides that relevant and otherwise admissible evidence shall not be excluded from criminal trials unless its exclusion is required by the state or federal constitutions, certain rules of evidence, or the rights of the press.   The legislature made ORS 136.432 applicable to cases pending on or commenced after December 5, 1996, which makes it applicable to this case.

 Defendant challenges the application of ORS 136.432 to this case on constitutional grounds that we addressed and rejected in State v. Fugate, 154 Or.App. 643, 963 P.2d 686, modified 156 Or.App. 609, 969 P.2d 395 (1998), rev. allowed 328 Or. 275, 977 P.2d 1173 (1999).   We adhere to our decision in that case.

 Defendant argues that, even if ORS 136.432 applies, the evidence at issue still should be suppressed because it was obtained in violation of the state and federal constitutions.   There is conflicting testimony about the events that led to the seizure of the disputed evidence, so we are not in a position to decide the constitutional issues involving the seizure without appropriate findings by the trial court on the facts.   We therefore vacate the suppression order and remand the case to the trial court to address defendant's arguments about the constitutionality of the seizure of the disputed evidence.

Vacated and remanded.

 PER CURIAM.