State v. Cowdrey

416 P.3d 314, 290 Or. App. 415
CourtCourt of Appeals of Oregon
DecidedFebruary 22, 2018
DocketA160928
StatusPublished
Cited by2 cases

This text of 416 P.3d 314 (State v. Cowdrey) 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. Cowdrey, 416 P.3d 314, 290 Or. App. 415 (Or. Ct. App. 2018).

Opinion

SHORR, J.

*316*417Defendant appeals a judgement of conviction for one count of unlawful possession of methamphetamine. ORS 475.894. On appeal, he raises one assignment of error, contending that the trial court erroneously denied his motion to suppress physical evidence found when law enforcement officers searched his car following defendant's consent to the search. More specifically, defendant argues that those officers violated his right to be free from unlawful search and seizure under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution by unlawfully extending the stop at two points: (1) when one of the officers asked for consent to search defendant's car before the other officer finished issuing defendant citations; and (2) when the requesting officer then searched defendant's car based on that consent. Further, defendant contends that he was illegally seized for a second time when an officer physically removed defendant from his vehicle to search it and, consequently, evidence that defendant later voluntarily provided to another officer and comments that he made after that seizure were unlawfully obtained. As we discuss below, we first conclude that defendant's argument regarding the officer's request for consent to search defendant's car is unpreserved and, thus, decline to reach the merits of that argument. As to defendant's other arguments, we disagree with defendant and, for the reasons stated below, affirm the decision of the trial court.

We review the trial court's denial of defendant's suppression motion for errors of law. State v. Aung , 265 Or.App. 374, 375, 335 P.3d 351, rev. den. , 356 Or. 575, 342 P.3d 88 (2014). When undertaking that review, we are bound by the trial court's express and implicit factual findings if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts consistently with that standard.

Defendant was initially stopped by Portland Police Officers Winkel and Shelton for having expired tags. After pulling defendant over, Winkel asked defendant for his license, registration, and proof of insurance. Defendant responded that he did not have any of those documents, but did provide Winkel with his identifying information so that *418Winkel could perform a records check. Winkel returned to his car and performed the records check of defendant. The records check revealed that defendant's car had previously been involved in a drug offense.

Winkel and Shelton decided to cite defendant for driving without insurance, driving while suspended, and driving with expired tags. After that decision was made, Shelton immediately began working on issuing those citations while Winkel returned to defendant's car. While at defendant's car, Winkel asked defendant if he could search defendant and his car. Defendant only approved a search of his car. While Winkel was inquiring as to consent, Shelton continued work on issuing defendant citations.

After receiving consent to search defendant's vehicle, Winkel immediately asked defendant to leave his vehicle. As defendant got out of the car, Winkel asked that defendant place his hands on his head with his fingers interlaced. Defendant complied and, as he got out, Winkel placed his hands on those interlaced fingers to help control defendant as he got out of the car. After getting out of the car, and in response to an inquiry from Winkel, defendant indicated that he was carrying a knife and gave that knife to Winkel. Winkel then patted defendant down and asked him to sit down on the curb behind his car while Winkel searched the car. Defendant did not feel that Winkel ordered him to sit there, but rather believed that Winkel was *317merely requesting it. Shelton left the police car to stand near defendant while Winkel was conducting his search to provide support and ensure Winkel's safety. Shelton brought her citation book with her while she stood by defendant, and continued working on the citations while also taking time to watch and interact with defendant.

The search took between 10 to 15 minutes. Early in that search process, Winkel found brass knuckles under the driver's seat of the car. At that point, Winkel believed that he had at least reasonable suspicion to believe that defendant had committed the crime of carrying a concealed weapon. Later in the search of the car, Winkel also found a crystalline, white substance that he believed to be methamphetamine. After that discovery, defendant made incriminating *419statements and informed Shelton that he had methamphetamine in his pocket. On request, defendant gave Winkel the narcotics. Winkel and Shelton then arrested defendant. After the discovery of methamphetamine, Winkel and Shelton decided not to issue defendant traffic citations, and the citations were never completed.

Defendant was charged with unlawful possession of methamphetamine. Defendant filed a motion to suppress the evidence found during the search of his car and the evidence that he had turned over to the officers after that search. In that motion, defendant argued that the traffic stop was illegally extended when Winkel began conducting the consent search of defendant's car because Shelton was impeded in completing her citations when she had to cover defendant. A hearing on that motion was held where Winkel, Shelton, and defendant all testified. At that hearing, defendant also argued that the methamphetamine he gave to police and the incriminating statements he made should be suppressed because Winkel unlawfully seized defendant for a second time when he placed his hands on defendant's interlaced fingers as he was directing defendant out of the car.

The trial court ruled from the bench that, regarding the search of defendant's vehicle, "the inquiry * * * was reasonable," "consent was valid," and that, as a result, the search was not "overly intrusive" because "courts are [not] putting time limitations on the search itself." The court made no explicit ruling on defendant's secondary seizure argument. However, the court implicitly disagreed with that argument when it denied defendant's motion to suppress.

A short bench trial was held, after which the court entered a judgment convicting defendant of unlawful possession of methamphetamine. ORS 475.894. Defendant appeals that judgment.

As noted, on appeal, defendant assigns error to the trial court's denial of his motion to suppress.

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Related

State v. Clarke
451 P.3d 1022 (Court of Appeals of Oregon, 2019)
State v. McBride
447 P.3d 1205 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
416 P.3d 314, 290 Or. App. 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cowdrey-orctapp-2018.