STATE v. BACA (2021)

Defendant appeals from a conviction for unlawful possession of methamphetamine, raising two assignments of error. In his first assignment, defendant argues that the trial court erred by denying his motion to suppress the evidence. On appeal, he argues that, by questioning defendant about drugs during a stop that was initially based on the officer's suspicion about a trespass, police violated the subject matter limitation on investigative activities adopted in State v. Arreola-Botello, 365 Or. 695, 451 P.3d 939 (2019). However, before the trial court defendant did not advance a subject matter limitation argument. In State v. Hallam, 307 Or. App. 796, 800-03, 479 P.3d 545 (2020), we concluded that the defendant's arguments to the trial court under State v. Rodgers/Kirkeby, 347 Or. 610, 227 P.3d 695 (2010), were insufficient to preserve a subject matter limitation argument. Hallam compels the conclusion that defendant's arguments here are unpreserved, and defendant has not demonstrated that the error was plain.

In his second assignment of error, defendant challenges the trial court's imposition of a special condition of probation requiring him to submit to searches by his supervising officer. The state concedes the probation condition is unlawful, and that concession is well taken. As we have repeatedly held, probation conditions cannot operate to constitute a “waiver of the probationer's Article I, section 9, rights, the probationer is entitled to refuse to allow the search, and must be given a reasonable opportunity to do so.” State v. Tennant, 310 Or. App. 70, 75, 483 P.3d 1226 (2021) (internal quotation marks and citation omitted; emphasis in Tennant).

Portion of judgment imposing special condition of probation reversed; remanded for resentencing; otherwise affirmed.

PER CURIAM