State v. Clink

348 P.3d 1187, 270 Or. App. 646, 2015 Ore. App. LEXIS 522
Court of Appeals of Oregon·Decided April 29, 2015·No. C121802CR; A153305·Published·Cited by 9 cases

Opinion

HADLOCK, J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine in violation of ORS 475.894. He assigns error to the trial court’s denial of his motion to suppress evidence that a police officer discovered after defendant consented to a search of the parked vehicle in which he had been sitting. Specifically, defendant argues that, before he consented to the search, the officer had unlawfully seized him without reasonable suspicion in violation of Article I, section 9, of the Oregon Constitution. We conclude that the officer’s stop of defendant was justified by reasonable suspicion that defendant had been engaged in criminal activity. Accordingly, we affirm.

We review the denial of a motion to suppress for legal error and we are bound by the trial court’s findings of historical facts as long as the record includes constitutionally sufficient evidence to support those findings. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993).

We describe the facts in keeping with the trial court’s findings, which are undisputed. At 10:45 p.m., City of Forest Grove Police Officer Wolf was dispatched to a “drug vice call.” Dispatch informed Wolf that a caller had complained that “a couple of guys were in front of [a particular address] smoking something in a newer silver Volvo” that was parked in front of a maroon truck. The informant gave dispatch his first name and telephone number.

Wolf knew that the address identified by the caller was in a residential neighborhood that was in the process of being developed and that it was not a high crime area. Wolf took the call seriously because calls from that area were usually accurate. He testified that he thought the call possibly related to “kids smoking cigarettes or smoking marijuana in the car.”

When Wolf arrived, he saw the silver Volvo parked in front of the maroon truck, as the informant had described. Wolf stopped his patrol car near the truck, approximately 20 to 25 feet away from the Volvo. He then pointed his spotlight on the car; he did not activate his lights or sirens. Wolf saw two adults inside the Volvo, a male in the driver’s [648] seat—defendant—and a female in the passenger seat. Wolf then saw defendant “rotate his upper body towards the passenger side of the vehicle and reach into the glove box or the center console” with “very elaborate,” “very deliberate,” and “furtive” movements, as though he was “concealing a large hard object versus a small pliable object ***.” Concerned that defendant was concealing or reaching for a weapon, Wolf called for backup. Wolfs concern about weapons was heightened by the nature of the report that the people in the car had been “smoking something” because, he testified, “people who use drugs are often associated with firearms and stolen vehicles.” During this time, Wolf also provided the Volvo’s license plate to dispatch to check the plates, but he did not receive responsive information until after his contact with defendant.1

Wolf approached the car after backup arrived. When he looked into the car, Wolf recognized the female passenger from previous law enforcement interactions and knew that she was a methamphetamine user. At that point, Wolf believed that illegal narcotics were in the vehicle. Wolf asked defendant what he had put in the center console and defendant “acted as though he didn’t know what [Wolf] was talking about.” Defendant was “very short” and “acted irritated” that Wolf was there. Wolf asked defendant for his driver’s license, defendant gave it to him, and Wolf retained it. Concerned for his safety, Wolf then told defendant to step out of the car. As soon as defendant left the car, Wolf saw a used methamphetamine pipe sticking out of a pocket on the passenger’s sweatpants. Wolf ordered the passenger to step out of the car and ensured that she understood her Miranda rights while the backup officer, Jacobsen, stayed with defendant. The passenger told Wolf that the pipe belonged to defendant.

While Wolf spoke with the passenger, Jacobsen had a “low key” and “friendly” conversation with defendant and asked him for consent to search the car. Defendant consented to the search and Jacobsen found a bag of methamphetamine inside the center console. Wolf read defendant [649] his Miranda rights. Defendant acknowledged that he understood those rights and then told Wolf that he had hidden the methamphetamine in the center console and that the passenger had hidden his pipe in her pocket.

After being charged with unlawful possession of methamphetamine, defendant filed a motion to suppress evidence obtained as a result of the search and seizure, arguing that Wolf had seized him without reasonable suspicion that he had committed a crime. At trial, the state conceded that defendant was stopped when the officer ordered him out of the car, but argued that the seizure was justified by reasonable suspicion that defendant carried a concealed weapon or possessed illegal drugs.

The trial court denied defendant’s motion, concluding that, based on the totality of the circumstances, Wolf had reasonable suspicion of criminal activity that justified the stop. Defendant then waived his right to a jury trial and, following a stipulated facts trial, the court found defendant guilty of unlawful possession of methamphetamine.

On appeal, defendant renews his argument that the officer stopped him without reasonable suspicion and, therefore, the trial court should have suppressed any evidence discovered during the consent search of defendant’s vehicle, as well as defendant’s subsequent statements. The state makes two arguments in response. First, it contends that Wolf had reasonable suspicion that justified his stop of defendant.2 Second, the state contends that, even if the stop was unlawful, suppression was not required because defendant’s consent to the search “was sufficient to attenuate the taint” of the stop. We address only the first of the state’s arguments, as it is dispositive. For the reasons set out below, we conclude that Wolfs stop of defendant was justified by reasonable suspicion and, therefore, that the trial court correctly denied defendant’s motion to suppress.

Article I, section 9, protects “the right of the people to be secure in their persons * * * against unreasonable [650] search, or seizure.” One type of seizure is a “stop,” that is, a temporary restraint on a person’s liberty, often for investigatory purposes, that does not rise to the level of an arrest. State v. Ashbaugh, 349 Or 297, 308-09, 244 P3d 360 (2010); State v. Rodgers/Kirkeby, 347 Or 610, 621, 227 P3d 695 (2010).3 A stop “violates Article I, section 9, unless justified by, for example, necessities of a safety emergency or by reasonable suspicion that the person has been involved in criminal activity.” Ashbaugh, 349 Or at 309.

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State v. Clink, 348 P.3d 1187, 270 Or. App. 646, 2015 Ore. App. LEXIS 522 (Or. Ct. App. 2015).

348 P.3d 1187 (State v. Clink) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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