State v. Decker

417 P.3d 449, 290 Or. App. 321
CourtCourt of Appeals of Oregon
DecidedFebruary 22, 2018
DocketA157223
StatusPublished
Cited by5 cases

This text of 417 P.3d 449 (State v. Decker) 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. Decker, 417 P.3d 449, 290 Or. App. 321 (Or. Ct. App. 2018).

Opinion

HADLOCK, J.

*323Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, and felon in possession of a restricted weapon, ORS 166.270(2). Defendant was convicted of those crimes in a stipulated-facts trial after the trial court denied his motion to suppress evidence that law enforcement officers found after stopping the vehicle that defendant was driving for a traffic violation. On appeal, defendant contends that the evidence should have been suppressed because officers found it after one officer, Oregon State Police Sergeant Barden, unlawfully extended the traffic stop. The state argues that Barden was justified in extending the stop because he had reasonable suspicion that defendant unlawfully possessed drugs or a weapon. We conclude that the record does not support a finding that Barden reasonably suspected defendant either of unlawfully possessing controlled substances or of unlawfully possessing a weapon. The trial court therefore erred when it denied defendant's suppression motion. Because that error was not harmless, we reverse and remand.

In the course of denying defendant's suppression motion, the trial court made factual findings that neither party challenges. We state the facts consistently with those express findings, which the record supports. State v. Shaff , 343 Or. 639, 641, 175 P.3d 454 (2007). In addition, we presume that the trial court implicitly resolved any other disputed factual matters "consistently with its ultimate conclusion" to the extent that resolving those factual disputes was necessary to the court's conclusion and to the extent that the record supports the implicit findings. Pereida-Alba v. Coursey , 356 Or. 654, 671, 342 P.3d 70 (2015).

The events that culminated in defendant's arrest began when Barden conducted a traffic stop after he saw a moving vehicle "almost straddling the center line." Barden activated his overhead lights and followed the vehicle, which slowed down to 10 or 15 miles an hour but did not immediately stop. Rather, Barden could see a silhouette of the driver's head moving to the right, toward the center of the vehicle, more than once. The vehicle kept going for 29 seconds at a very low speed before it stopped; Barden characterized *324that as an "extremely slow pull *451over" on a road on which there was no other traffic, although there was no place for the vehicle to pull completely off the road. Barden became increasingly nervous that "something's going to happen," like an attempt by the driver to flee or "a weapon * * * com[ing] into play." Barden explained at the suppression hearing that, from his training and experience, he develops a concern about a driver accessing or concealing weapons when it takes a driver as long to pull over as happened in this case.

After the vehicle stopped, Barden approached slowly, on high alert. His concern decreased once he could see the hands of the driver (defendant) and observed no weapons. Defendant told Barden that his driver's license was suspended and verbally identified himself instead of producing identification in response to the sergeant's request.

Although defendant's voice was fairly calm, he "would only glance at [Barden] and then he kept looking towards the center console, down at his feet, he just kept glancing, kept glancing, kept glancing, the whole time he was talking." That, in conjunction with "the very long pullover," heightened Barden's concern about weapons-specifically, "weapons that have been placed there"-although Barden did not believe that defendant posed an immediate threat because Barden could clearly see his hands.

Barden went back to his patrol car to verify defendant's identity. That took only a couple of minutes; during that time, Senior Trooper Chambers arrived at the scene. Barden asked Chambers to watch defendant, indicating Barden's concern about weapons. At about the time that dispatch verified that defendant's license was suspended, Chambers went to Barden's patrol car and told him that defendant had given an "odd" story about where he was driving; defendant had said that he was traveling between two points that "were on the other side of town completely" from where the stop occurred. Chambers also told Barden that the vehicle belonged to defendant's girlfriend, who was "known to be involved in controlled substances." Barden does not think that he and Chambers talked about anything else at that time.

*325Barden then had all the information he needed to issue a citation to defendant, but he had not completed writing that citation. At that point, Barden testified, he went back to defendant's vehicle, suspecting that defendant was engaged in criminal activity:

"When I recontacted him, at that point I had reason to believe, based off of what I had seen from the highly abnormal pullover, from his movements in the vehicle, from especially his actions of he kept glancing down, kept glancing down next to where he was seated, and then the additional information about where he was going to, which didn't seem to match at all where we were, that he was involved in criminal activity."

Accordingly, Barden began investigating the suspected criminal activity, transforming the stop-in his mind-from a traffic stop to a criminal stop. Barden asked defendant again where he was going, what he had hidden in the vehicle by the seat, and-after defendant denied having hidden anything-about drugs and weapons. Defendant did not consent to Barden's request to search the vehicle. Believing that he reasonably suspected defendant of criminal activity, Barden told defendant to get out of his vehicle so that a narcotics-detection dog could externally sniff it. Barden asked defendant whether he could pat him down for weapons; defendant refused and started reaching for his pockets. At that point, Barden patted him down for officer-safety reasons and brought him back to the patrol car.

At some point-the record does not indicate much about when, and the trial court made no finding on this point-Chambers alerted Barden to a knife that was visible on the center console; Barden had not known that the knife was there.1 Barden retrieved *452the knife and verified that it snapped open with centrifugal force, making it a knife that was unlawful for defendant, a felon, to possess. *326

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Cite This Page — Counsel Stack

Bluebook (online)
417 P.3d 449, 290 Or. App. 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-decker-orctapp-2018.