State v. Bonham

852 P.2d 905, 120 Or. App. 371, 1993 Ore. App. LEXIS 778
CourtCourt of Appeals of Oregon
DecidedMay 19, 1993
Docket10-91-03403; CA A72941
StatusPublished
Cited by18 cases

This text of 852 P.2d 905 (State v. Bonham) 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. Bonham, 852 P.2d 905, 120 Or. App. 371, 1993 Ore. App. LEXIS 778 (Or. Ct. App. 1993).

Opinions

[373]*373DEITS, J.

The state appeals from an order granting defendant’s motion to suppress evidence found in the search of his vehicle. ORS 138.060(3). The issue is whether the defendant’s consent to the officer’s request to search the vehicle was properly obtained. We reverse.

We take the facts from the trial court’s findings of fact and draw such inferences from those facts as are consistent with the trial court’s ultimate conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Oregon State Police Officer Ayres activated the overhead lights on his patrol vehicle and stopped defendant on Interstate 5 just north of Eugene for equipment violations. Defendant does not argue that the initial stop was invalid. Defendant immediately told Ayres that his license had been suspended and gave him an Oregon identification card. Ayres did a records check and then cited him for driving while suspended, ORS 811.175, and driving without insurance, ORS 806.010. He then returned defendant’s identification card and told him that he was free to go. At that time, Ayres had turned off the overhead lights on his car.

Before defendant started to leave, Ayres asked him for consent to search under the tarp covering the bed of his pickup. Defendant agreed and lifted the tarp. Ayres saw engine parts and other machinery in the truck bed. He then requested defendant’s permission to search the cab of the vehicle. Defendant opened the passenger door and Ayres saw a magazine clip, two bags of marijuana and a jacket with a clear plastic bag protruding from a pocket. A powder residue coated the bag. Responding to Ayres’ inquiry, defendant admitted that it contained methamphetamine. Sergeant Wolf then arrived at the scene. Ayres continued his search and discovered some phone numbers and a large amount of cash. He then arrested defendant.

The trial court found:

“5. At the time of making [the request to search] Trooper Ayres did not have any reasons to suspect that there were any criminal activities going on.
“6. In requesting consent to search after returning Defendant’s I.D. and giving him the citations, Trooper Ayres was following a policy established by the Oregon State Police.
[374]*374“7. The only coercion involved in the officer’s request for Defendant’s consent to search was the inherent coercion involved in a traffic stop due to the authority of the police officer, his uniform, and the flashing warning lights.”

The trial court granted the motion to suppress on the ground that the officer lacked authority to ask defendant for consent to search his vehicle.

The state argues that the trial court erred in granting defendant’s motion to suppress because Ayres had authority to ask defendant for consent to search and because the consent was voluntarily given. We agree. The state is required to prove by a preponderance of the evidence that consent was voluntarily and knowingly given. State v. Stevens, 311 Or 119, 806 P2d 92 (1991). We examine the totality of the circumstances to determine if consent was the product of defendant’s free will rather than the result of coercion, express or implied. State v. Kennedy, 290 Or 493, 624 P2d 99 (1981); State v. Mercado, 105 Or App 582, 805 P2d 744, rev den 311 Or 482 (1991). We conclude here that the state did prove by a preponderance of the evidence that defendant’s consent was voluntary. The stop took place in the afternoon on a well-traveled highway. At the time that consent was obtained, only one officer was present. The officer parked behind the defendant’s vehicle and did not block him in. During the course of the stop, he turned off his overhead lights. Ayres returned defendant’s identification to him and told him that he was free to go before he asked for consent to search.

Defendant does not argue that he was coerced into giving his consent. Rather, he contends that Ayres’ request for consent exceeded the permissible scope of a traffic stop and that, under the Supreme Court’s decision in State v. Porter, 312 Or 112, 817 P2d 1306 (1991), the consent was invalid. We do not believe that Porter is controlling here. First, in contrast to Porter, the request for consent here occurred after a traffic stop had ended. As the trial court found, Ayres returned defendant’s identification and told defendant that he was free to go.1 It was after that that Ayres asked for consent to search.

[375]*375Although the dissent urges that Porter applies, even if the traffic stop had ended, the language of that case simply does not support that conclusion. In Porter, the Supreme Court held that it was impermissible for an officer, during a stop for a traffic infraction, to conduct a search that is not related to the purpose of the stop and for which the officer has no probable cause or consent. 312 Or at 121. Porter does limit what may occur during the course of a traffic stop, but it does not hold that, once a traffic stop is complete, an officer is precluded from asking for consent to search. We recently considered exactly that question in State v. Allen, 112 Or App 70, 826 P2d 127, rev den 314 Or 176 (1992). 2 In Allen, after completing a stop for a traffic infraction, the officer told the defendant that he was free to go, and the trial court found that he understood. We concluded that “the conversation that followed the traffic stop was a separate exchange and there was nothing otherwise impermissible about the inquiry.” 112 Or App at 73. Our decision in Allen was consistent with State v. Porter and should control here.

The dissent takes the position that a request for consent made after a traffic stop is automatically impermissible based solely on the fact that it occurred after a traffic stop. We see no reason why the validity of the request and consent that follows should not be judged based on the same standard of voluntariness applied to any consent. We have held generally that there is no prerequisite of reasonable suspicion or probable cause before an officer may ask a citizen for consent to search. As we stated in State v. Auer, 90 Or App 459, 464, 752 P2d 1250 (1988):

“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 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 [376]*376totality 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Toevs
964 P.2d 1007 (Oregon Supreme Court, 1998)
State v. Hadley
932 P.2d 1194 (Court of Appeals of Oregon, 1997)
State v. Bailey
924 P.2d 833 (Court of Appeals of Oregon, 1996)
State v. Larson
917 P.2d 519 (Court of Appeals of Oregon, 1996)
State v. Aguilar
912 P.2d 379 (Court of Appeals of Oregon, 1996)
State v. Toevs
904 P.2d 658 (Court of Appeals of Oregon, 1995)
State v. Robinette
1995 Ohio 162 (Ohio Supreme Court, 1995)
State v. Lathrop
865 P.2d 502 (Court of Appeals of Oregon, 1993)
State v. Lillie
860 P.2d 895 (Court of Appeals of Oregon, 1993)
State v. Bojorques-Quinonez
854 P.2d 498 (Court of Appeals of Oregon, 1993)
State v. Alvarez
853 P.2d 326 (Court of Appeals of Oregon, 1993)
State v. Bonham
852 P.2d 905 (Court of Appeals of Oregon, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
852 P.2d 905, 120 Or. App. 371, 1993 Ore. App. LEXIS 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bonham-orctapp-1993.