State v. Johnson

851 P.2d 1160, 120 Or. App. 151, 1993 Ore. App. LEXIS 694

Opinions

De MUNIZ, J.

Defendants are husband and wife. They were indicted for delivery and possession of a controlled substance. ORS 475.992(1), (4). The evidence that the state intended to offer against them was discovered during two separate searches: one of their motel room and one of their car.¹ The court granted defendants’ motions to suppress the evidence found in the motel room on the ground that their consent to search was not voluntary, and the state appeals. ORS 138.060(3). We granted the state’s motion to consolidate. ORAP 2.30. We remand for further proceedings.

The chronology of events that led to defendants’ consent to search is not in dispute. As part of his routine patrol, Officer Rhodes frequently stopped at local motels to ask the clerks if they had observed any suspicious activity that might be related to drug transactions. At 2:50 one morning, Rhodes stopped at the Cypress Inn in Portland. The night clerk told him about some suspicious activity related to room 110.² Tracy Teixeira was listed as the registered guest in that room. Rhodes ran a records check and found that there was an outstanding warrant for Teixeira’s arrest. He summoned another officer, Farr, to accompany him and his partner, Mickola, to room 110 to arrest Teixeira.

Rhodes and Mickola went to the door, while Farr watched the window. Rhodes knocked, and Tracy Johnson opened the door. Rhodes asked her if he could come in to speak with her, and she said yes. Rhodes asked her what her name was, and she answered, “Tracy.” Rhodes, believing that she was Tracy Teixeira, told her that she was under arrest and handcuffed her. He asked her what her last name was, and she “mumbled something that sounded like Johnson.”

As he was handcuffing Tracy, Rhodes saw Eugene J ohnson lying on the bed. Eugene was on top of the covers and was fully dressed. One of his hands was underneath the pillow. Rhodes asked Eugene to identify himself, and he did. Rhodes recognized Eugene’s name, and he knew that Eugene had been arrested on weapons charges before. Rhodes went over to Eugene, so that he could handcuff him “for officer safety purposes only.”

As he approached Eugene, Rhodes smelled an aroma that he associated with methamphetamine. Rhodes handcuffed Eugene and asked him why he smelled like a “meth lab.” Eugene said, “I don’t know what you’re talking about.” Rhodes than advised defendants of their “Miranda rights.” They told him that they understood those rights. Rhodes asked defendants if there were any drugs or guns in the room. They said that, to their knowledge, there were not. Rhodes asked if he could search the room, and defendants consented.

Rhodes searched the room and found half an ounce of methamphetamine and other drug paraphernalia. He found Tracy’s identification in her purse. The officers then removed Tracy’s handcuffs, and Mickola went with her into the hallway outside the room. Tracy came back and told Eugene that the officers wanted to search their car. According to Rhodes,

“[Tracy] says that Officer Mickola essentially has asked if it was okay to look in [defendants’] car and [Eugene] responded that he didn’t care because they’re going to do what they want to anyway.”

Rhodes and Mickola searched the car and found a police radio scanner, a heating grill, a fan, some tubing and a bottle of peppermint extract.³

The court concluded that Rhodes had probable cause to arrest Tracy because “[s]he matched the description [of Tracy Teixeira in the warrant] close enough,” and it therefore concluded that her arrest was lawful. Next, the court concluded that Rhodes unlawfully arrested Eugene by handcuffing him, because he did not have probable cause to believe that Eugene had committed any crime. Finally, the court concluded that defendants’ consent to a search of their motel room was invalid, and it granted their motions to suppress.

In granting defendants’ motions to suppress, the court framed the issue as follows:

“[WJhether or not the consents given to the search of the room were valid or invalid. [W]hen there’s been illegal police conduct, the evidence obtained will be suppressed if [the] consent was obtained by exploitation of the illegality [or if] the defendant’s free will was tainted by the illegal police conduct.

“The court’s required in determining whether those exist to examine the totality of the circumstances. The burden is on the state to prove the voluntary consent by clear and convincing evidence. According to the case law the burden is even greater when the consent is given after illegal police conduct.”

The court indicated that it was “not persuaded the state has carried its burden of proof that the consent was a product of the defendants’ free will and not obtained by coercion.” State v. Wolfe, 295 Or 567, 572, 669 P2d 320 (1983); State ex rel Juv. Dept. v. Fikes, 116 Or App 618, 624, 842 P2d 807 (1992).

The searches were not pursuant to a warrant. Consequently, the state had the burden of proving, by a preponderance of the evidence, that they were lawful. ORS 133.693(4); Or Const, Art I, §§ 9, 12; State v. Stevens, 311 Or 119, 137, 806 P2d 92 (1991). Our courts have frequently observed that the state’s burden to prove voluntariness is greater if consent follows illegal police conduct. E.g., State v. Kennedy, 290 Or 493, 502, 624 P2d 99 (1981); State v. Jacobus, 106 Or App 496, 499, 809 P2d 108 (1991), rev den 314 Or 176 (1992). That observation does not mean that the state must prove voluntariness by more than a preponderance of the evidence, e.g., by clear and convincing evidence. Rather, it merely reflects that an unlawful arrest is even more coercive than a lawful one.⁴ The state thus has a more difficult time in surmounting the preponderance hurdle, because there is already appreciable evidence that weighs against a finding of voluntariness.

The state contends that the officers were authorized to arrest Tracy when she told them that her name was Tracy. Second, the state contends that handcuffing Eugene was a reasonable measure to ensure officer safety. We reject both of those propositions.

An arrest warrant must

“(2) Specify the name of the person to be arrested, or if the name is unknown, shall designate the person by any name or description by which the person can be identified with reasonable certainty [and]

“(6) Command any peace officer to arrest the person for whom the warrant was issued[.]” ORS 133.140. (Emphasis supplied.)

The warrant commanded the arrest of Tracy Teixeira. It neither commanded nor authorized the arrest of any other person.

The state contends that the officers were authorized to arrest Tracy Johnson, because she “generally matched the physical description shown in police records and said her name was ‘Tracy.’ ” However, the officers’ belief that Tracy was the person who was named in the warrant did not authorize them to arrest her. In Pierson v. Multnomah County, 301 Or 48, 718 P2d 738 (1986), there was a valid warrant to arrest Ronald Pierson. Multnomah County police officers stopped his identical twin brother, Robert, for a traffic infraction. They believed that Robert was Ronald, and arrested him. Robert sued the county for false imprisonment. In deciding whether the officers’ conduct was privileged, the court weighed “the inherent conflict between persons who are wrongfully arrested and officers who are charged with the duty to arrest persons under a warrant.” 301 Or at 55. (Emphasis supplied.) It is clear that the court considered Robert’s arrest unlawful, even though the police may have believed, in good faith, that he was the person named in the warrant.

Other than the warrant, the officers had no information that would suggest that Tracy Johnson had committed any crime. Article I, section 9, does not have a “good faith” exception. See State v. Devine, 307 Or 341, 345, 768 P2d 913 (1989); State v. Davis, 106 Or App 546, 552, 809 P2d 125 (1991). Consequently, the arrest of Tracy Johnson was unlawful. Or Const, Art I, § 9.

We do not mean to suggest that the officers had no authority to stop Tracy for a reasonable time to determine her identity. ORS 131.615. However, her detention was unreasonable under the circumstances. Rhodes testified that he did not believe Tracy when she said that her last name was Johnson. Nonetheless, he did not ask her if she had any identification. Instead, he ignored the possibility that she was telling the truth, and he arrested her.

After unlawfully arresting Tracy, Rhodes handcuffed Eugene “for officer safety purposes.” He then asked defendants if there were any guns or drugs in the motel room and asked for permission to search. Defendants consented. During that search, Rhodes found Tracy’s identification, which proved that she had been telling the truth when she said her name was Johnson.

The state contends that handcuffing Eugene did not constitute an arrest. It argues that Eugene was lawfully stopped and that handcuffing him was a reasonable alternative to frisking him. Alternatively, the state contends that handcuffing Eugene was a reasonable procedure to ensure the officers’ safety while arresting Tracy. See State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). Before handcuffing Eugene, Rhodes detected the distinct aroma of methamphetamine emanating from Eugene. That aroma was sufficient to arouse a reasonable suspicion that Eugene was either in possession of the drug, or had recently been in a place where it was manufactured. He was authorized to stop Eugene for the purpose of investigating possible violations of ORS 475.992(1) and ORS 475.992(4).⁵

Rhodes knew that Eugene had been arrested on weapons charges before, and he saw that Eugene’s hand was concealed underneath the pillow on the bed. He reasonably suspected that Eugene was armed and dangerous. The question in this case is whether Rhodes’ handcuffing of Eugene was reasonable under the circumstances. State v. Bates, supra. We faced a similar set of circumstances in State v. Morgan, 106 Or App 138, 806 P2d 713, rev den 312 Or 235 (1991). In that case, the police reasonably suspected that the defendant, whom they had lawfully stopped, was armed and dangerous. The officers frisked the defendant, handcuffed him and placed him in their patrol car. We concluded that the defendant had not merely been stopped, but had been arrested. 106 Or App at 142. We reasoned that

“when a stop is authorized, a restraint that goes beyond the scope of a stop will result in an illegal arrest, if it is not based 3 on probable cause. * * * [OJnce defendant was taken out of [his] car and frisked, any concern about immediate danger dissipated, especially in light of [the officer’s] description of defendant as ‘polite and cooperative.’ ” 106 Or App at 141.

The facts in this case are not significantly different from those in Morgan. According to Rhodes, the atmosphere was relaxed, “ [a]s much as it could be for people that are being taken into custody.” Rhodes asked Eugene to take his hand out from underneath the pillow, and Eugene complied. ORS 131.625 authorized Rhodes to frisk Eugene and to take whatever steps were reasonably necessary to remove an object that felt like a weapon. Rhodes did not take those reasonable precautions. Instead, he immediately handcuffed Eugene.

There may be circumstances in which the interests of officer safety could justify handcuffing a dangerous person who refuses to submit to a frisk during a lawful stop. But when an officer fails to follow the procedure outlined in ORS 131.625, and there is no reason to believe that attempting to do so would be futile, then the use of handcuffs exceeds the restraint permitted by the statute. Rhodes’ decision to skip the frisk procedure and to immediately handcuff Eugene instead, constituted an unreasonable seizure. Handcuffing Eugene constituted an arrest that was not supported by probable cause. State v. Morgan, supra, 106 Or App at 141. That violated ORS 133.005(1), Article I, section 9, and the Fourth Amendment.

In determining whether defendants voluntarily consented to a search of their motel room, the court was required to make inferences about their mental states when they gave their consent. In drawing those inferences, the court was required to consider the totality of the circumstances and to assess the degree of coerciveness that pervaded the atmosphere in defendants’ motel room. The court correctly concluded that the state had the burden of proving that defendants’ free will had not been overcome by the events preceding the officer’s request to search their motel room. However, in deciding that issue, the court imposed too high a burden on the state, by requiring it to prove that fact by clear and convincing evidence. We have no way of knowing what finding the court would have made if it had applied the correct standard, and we lack authority to make that finding. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968); State v. Gaunce, 114 Or App 190, 196, 834 P2d 512, rev den 315 Or 271 (1992).

Additionally, we cannot review the lawfulness of defendants’ consent to a search of their car, because the trial court never made a ruling on that issue. Accordingly, we remand to the trial court with instructions to make a finding, under the proper standard, whether defendants’ consent to a search of their motel room and their car was the product of their free will. The court shall restrict its findings to evidence that is contained in the existing record. See State v. Gaunce, supra, 114 Or App at 196.

Judgment vacated; remanded for further proceedings not inconsistent with this opinion.

Footnotes

1

The motel room and the car represent distinct privacy interests, and the state must independently justify the invasions of each of those interests. State v. Brown, 110 Or App 604, 609, 825 P2d 282 (1992).

2

The record does not reflect what the clerk actually saw or what she told Rhodes.

3

Rhodes testified that methamphetamine manufacturers use peppermint extract to mask the distinctive aroma of the drug.

4

Everv arrest is inherently coercive. State v. Quinn, 112 Or App 608, 612, 831 P2d 48, rev den 313 Or 627 (1992).

5

The smell alone did not establish that, more likely than not, Eugene had committed either of those crimes. ORS 131.005(11). The state does not contend that Rhodes was authorized to arrest him.