State v. Brown

785 P.2d 790, 100 Or. App. 204, 1990 Ore. App. LEXIS 26
CourtCourt of Appeals of Oregon
DecidedJanuary 17, 1990
Docket10-86-07260; CA A46671
StatusPublished
Cited by9 cases

This text of 785 P.2d 790 (State v. Brown) 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. Brown, 785 P.2d 790, 100 Or. App. 204, 1990 Ore. App. LEXIS 26 (Or. Ct. App. 1990).

Opinions

[206]*206GRABER, J.

Defendant appeals his conviction for manufacturing a controlled substance, ORS 475.992(1), and challenges the denial of a motion to suppress his statements and evidence seized from his vehicle. He argues that the statements and evidence resulted from an unlawful stop and that he did not receive necessary Miranda warnings. We affirm.

Lane County Sheriffs officers began surveillance of a heavily wooded section of BLM property after noticing several plots of marijuana plants during an aerial observation. No one came into the area during the first day and a half of surveillance. On the second day, defendant’s truck came up the dead end gravel road and stopped. An officer hiding nearby saw defendant get out of the truck and enter the woods in the direction of the marijuana plants.1

Defendant emerged from the woods about an hour and 15 minutes later, went to his pickup, and then reentered the woods. The officer could see an implement hanging from defendant’s belt that he described as “a pair of clippers or some other tool.” Defendant returned to his truck approximately 45 minutes later and drove toward the highway. Officer Purdue, who was in a car with another officer and who had received radio reports from the hidden officer, stopped defendant’s truck when it reentered the highway. Purdue told defendant that he wanted to discuss his activities in the area and to show him that a trailer hitch was partially blocking his truck’s license plate. Both men walked to the rear of the truck to look at the hitch and the license plate.

Defendant handed his driver’s license to Purdue on request. At about that time, Officer Jenkins arrived; he took defendant’s license and ran a record check by radio. Purdue and the other officer left shortly after completing the record check, after which Jenkins was the only officer present. Jenkins told defendant about the surveillance of the marijuana plants and asked him if he would mind talking to him. Defendant said no, that he had nothing to hide and had done nothing wrong.

[207]*207At first, defendant responded that he was in the woods looking for animal tracks and had no knowledge of any marijuana plants. After further discussion, he told Jenkins that he had found the marijuana and had contemplated stealing it, but decided not to. Defendant ultimately admitted that the marijuana plants were his. Jenkins searched defendant’s truck, with defendant’s consent, and seized two machetes. Defendant was not arrested or given a citation but was allowed to leave.

The entire encounter lasted approximately 30 minutes. Defendant testified that he repeatedly asked Jenkins whether he was under arrest and that Jenkins told him that he was not. Part of the conversation took place at the rear of defendant’s pickup, where he and the officer had gone to inspect the license plate. At some point, Jenkins asked defendant if they could continue the discussion in his vehicle, because he could not hear defendant over the road noise. Defendant agreed. Jenkins told him that “[b]ecause you are in my truck doesn’t mean you’re arrested.” Jenkins testified that he returned defendant’s driver’s license some time during the conversation, but defendant testified that it was not returned until he was expressly allowed to leave.

Defendant was charged with manufacturing a controlled substance. He moved to suppress all the evidence and argued that the initial stop was unlawful, that the inquiry after the stop was unreasonable, and that his consent to search was not voluntary. The court denied the motion. Defendant was convicted by a jury.

On appeal, defendant challenges the denial of his motion to suppress. He first renews his challenge to the initial stop. ORS 131.615.2 He argues that the officers lacked a [208]*208“reasonable suspicion”3 that he had committed a crime. In determining whether the officer had a reasonable suspicion, we use an “objective test of observable facts.” State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977). Defendant was the only person seen during the two-day surveillance. He was in the vicinity of the plants for approximately t\yo hours and carried a tool that looked like clippers. Those facts were sufficient to create a reasonable suspicion that he was cultivating the marijuana.

Defendant next contends that neither officer gave him Miranda warnings; therefore, the incriminating statements should be suppressed.4 The state does not dispute the absence of Miranda warnings but contends that they were not required.

Defendant argues that Miranda warnings are required under Article I, section 12,5 and that the Oregon Constitution provides him more protection than the federal constitution in this case. The Supreme Court has told us, although somewhat cryptically, that Article I, section 12, requires Miranda warnings; however, that provision did not require warnings here.

In State v. Smith, 301 Or 681, 725 P2d 894 (1986), the plurality opinion of the Supreme Court concluded that Miranda warnings are not necessary under the state constitution. A fourth judge concurred in the result, but concluded that warnings are warranted under Article I, section 12, when a defendant is in “full custody.” 301 Or at 701-02 (Jones, J., concurring).

In State v. Magee, 304 Or 261, 744 P2d 250 (1987), the [209]*209Supreme Court reversed the defendant’s conviction, because he had not received Miranda warnings. After discussing some of the federal cases on the subject, the court said:

“We need not decide the multifarious cases that arise in the state courts by matching their facts with those in the few cases decided by the United States Supreme Court. This is a needlessly speculative and ultimately wasteful exercise at least when Oregon law furnishes an independent basis of decision. * * * It does so in this case.” 304 Or at 266. (Emphasis supplied; citations omitted.)

The “independent basis of decision,” in context, is Article I, section 12. Four judges joined the majority. Three concurring judges would have held that Article I, section 12, does not require warnings. 304 Or at 266-67 (Carson, J., concurring). The result in Magee makes no sense except as a rejection of the views of the plurality in Smith. .

State v. Vu, 307 Or 419, 425, 770 P2d 577 (1989), cites State v. Magee, supra, as the only pertinent case under the heading: “Failure to Give Miranda Warnings * * * Under the Oregon Constitution.” The court’s brief discussion assumes that the Oregon Constitution requires warnings:

“We allowed review in this case primarily to determine, under the Oregon Constitution, the admissibility for impeachment purposes of a defendant’s statement once the statement had been suppressed because of a failure to give Miranda warnings. We do not reach that issue.” 307 Or at 425. (Emphasis supplied.)

That passage confirms that Article I, section 12, requires warnings — under some circumstances.

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State v. Brown
785 P.2d 790 (Court of Appeals of Oregon, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
785 P.2d 790, 100 Or. App. 204, 1990 Ore. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-orctapp-1990.