State v. Aguilar

867 P.2d 520, 126 Or. App. 22, 1994 Ore. App. LEXIS 44
CourtCourt of Appeals of Oregon
DecidedJanuary 19, 1994
DocketC88-06-33882; CA A70129
StatusPublished
Cited by7 cases

This text of 867 P.2d 520 (State v. Aguilar) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Aguilar, 867 P.2d 520, 126 Or. App. 22, 1994 Ore. App. LEXIS 44 (Or. Ct. App. 1994).

Opinions

[24]*24DEITS, J.

Defendant appeals his conviction for possession and distribution of a controlled substance. ORS 475.992. He argues that the trial court erred in denying his motion to suppress. We affirm.

On June 4, 1988, Officer Kelley saw defendant’s car parked in front of what he knew to be an operating drug house. He also saw a person whom he believed was the operator of the drug house leave the area of defendant’s car and run up the steps of the house. Kelley believed that person was the operator of the drug house, because he matched the general description of the drug house operator. Five weeks earlier, Kelley had seen a person of similar appearance run up to the house as another car pulled away. The driver of that car admitted to Kelley that he had sold cocaine and heroin to the drug house operator. Kelley followed defendant’s car as it pulled away from the curb. He testified that defendant seemed to be in a hurry and that he twice failed to signal before making a turn. Kelley stopped defendant for a traffic violation. He asked him for his driver license and a bill of sale. Defendant provided both. Kelley asked defendant: “Do you have any drugs on you or in your vehicle?” Defendant responded: “I don’t think so.” Kelley then asked defendant for consent to search. The trial court found

“that Officer Kelley asked the Defendant if he would allow himself and the vehicle to be searched; the court finds that * * * Defendant’s response was yes, and that the Defendant then stepped out of the vehicle without any request by the officer.”

Kelley then requested a cover car and, while he waited for it to arrive, he searched defendant and found money and a pager. After the other officers arrived, he searched the car and found two baggies of heroin. He then arrested defendant and found another bag of heroin and some marijuana on defendant’s person.

Defendant assigns as error the trial court’s denial of his motion to suppress evidence discovered in the search of his car and person. He argues that the officer’s actions exceeded the permissible scope of a traffic stop and that the officer did not have reasonable suspicion to stop him for the [25]*25drug offense. He also contends that his consent to the search was not voluntary.

It is unnecessary to decide whether Kelley had a reasonable suspicion to stop defendant for the drug offenses, because we conclude that his questioning of defendant during the traffic stop concerning the drug offenses and his request for consent were permissible. In State v. Bonham, 120 Or App 371, 852 P2d 905, rev den 317 Or 584 (1993), after the completion of a traffic stop, the officer questioned defendant concerning drug activities and asked for consent to search. We held that that was permissible. This case presents a different question, however, because here the questioning and request for consent occurred before the completion of the traffic stop.

As we discussed in Bonham, we have generally held that there is no prerequisite of reasonable suspicion or probable cause before an officer may ask a person for consent to search. In Bonham, we quoted State v. Auer, 90 Or App 459, 464, 752 P2d 1250 (1988), in which we said:

“Neither the Supreme Court nor this court has ever held, or even suggested, that reasonable suspicion is a prerequisite to asking for consent to search.”

We further explained in Bonham:

“We recently upheld a request to search when an officer walked up to a citizen and, without probable cause to believe that a crime had been committed or even a reasonable suspicion, asked for permission to search. We assessed the totality of the circumstances and held that the consent was voluntary. State ex rel Juv. Dept. v. Fikes, 116 Or App 618, 842 P2d 807 (1992). The pertinent inquiry there was not whether the officer had authority to ask the question but whether, considering the totality of the circumstances, the defendant’s consent was given of his own free will or was the product of coercion, express or implied. We have held that, even in circumstances where a request for consent to search followed illegal police conduct, consent is not automatically invalid. Rather, the burden on the state to prove voluntariness focuses on whether the consent was an exploitation of the prior illegality. State v. Kennedy, [290 Or 493, 624 P2d 99 (1981)]; see State v. Mercado, [105 Or App 582, 805 P2d 744, rev den 311 Or 482 (1991)]. The fact that a request for consent to search takes place after a traffic stop is a factor [26]*26that should be considered in evaluating whether, under the totality of the circumstances, the consent was voluntarily given or was the product of coercion. However, consent should not be invalidated solely because it follows a traffic stop.” 120 Or App at 375-76.

We conclude that the same rationale should apply here. The fact that a request for consent occurs during the course of a traffic stop is a factor to consider in evaluating the voluntariness of the consent, but it does not automatically invalidate the consent. Contrary to the dissent’s assertions, this conclusion is not inconsistent with the Supreme Court’s decision in State v. Porter, 312 Or 112, 817 P2d 1306 (1991). In Porter, the officer lawfully stopped the defendant’s car and arrested him pursuant to an arrest warrant. When the defendant stepped out of his car, the officer saw an open can of beer behind the driver’s seat. While defendant was in the back seat of the patrol car, the officer searched the car for additional open containers and, during that search, found drugs. On appeal, defendant argued that the search was unlawful. The state argued that the officer was entitled to search for additional open containers under ORS 810.410(3)(b), which permits an “investigation reasonably related to [a] traffic infraction.” 312 Or at 115. The Supreme Court determined that that statute did not authorize the warrantless search of defendant’s car, because the search was not reasonably related to the traffic infraction: “When the officer found and seized from defendant’s car the open can containing beer, he had all the evidence he needed to cite defendant.” 312 Or at 120. The state did not argue that there was any other authority for the warrantless search of the defendant’s car. The court held that the search was unlawful because it was not authorized by the statute, and no other basis independent of the statute had been argued to the court.

The dissent takes the position that the Supreme Court’s reading of ORS 810.410(3)(b)1 in State v. Porter, [27]*27limits the authority of an officer during a traffic stop to ask a person for consent to search. It relies on the statement in Porter that ORS 810.410(3)(b) “proscribes any further action by the police, including a search, unless it has some basis other than the traffic infraction.” 312 Or at 120. However, it is clear from the court’s discussion in Porter

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Related

State v. Aguilar
912 P.2d 379 (Court of Appeals of Oregon, 1996)
State v. Foster
912 P.2d 377 (Court of Appeals of Oregon, 1996)
State v. Claxton
867 P.2d 526 (Court of Appeals of Oregon, 1994)

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867 P.2d 520, 126 Or. App. 22, 1994 Ore. App. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aguilar-orctapp-1994.