State v. Mazzucchi

284 P.3d 1263, 252 Or. App. 122, 2012 WL 3727155, 2012 Ore. App. LEXIS 1044
CourtCourt of Appeals of Oregon
DecidedAugust 29, 2012
Docket092318FE; A143973
StatusPublished

This text of 284 P.3d 1263 (State v. Mazzucchi) 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. Mazzucchi, 284 P.3d 1263, 252 Or. App. 122, 2012 WL 3727155, 2012 Ore. App. LEXIS 1044 (Or. Ct. App. 2012).

Opinion

ORTEGA, P. J.

Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894. He assigns error to the trial court’s denial of his motion to suppress evidence obtained after he consented to a search while subject to what he contends was an unlawful seizure. We conclude that defendant was not stopped for purposes of Article I, section 9, of the Oregon Constitution when the officers requested his consent to search the car. We therefore affirm.

We state the facts consistently with the trial court’s express and implied findings where there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). Officer Jeter stopped a car for speeding. He approached the front passenger side of the car, where defendant was seated, and asked the driver, Riley, for her license, registration, and insurance. Riley told Jeter that the car belonged to defendant’s father and that she did not have a driver’s license. Riley then gave Jeter her Washington State identification card. Jeter noticed that Riley was very shaky, was “over the top nervous,” and had a bad complexion for her age and decaying teeth.

Jeter told defendant that, if he wanted to drive the car away, he could give Jeter his driver’s license and Jeter would “check [to] see if it’s valid.” Defendant gave Jeter his license and Jeter initiated DMV, criminal history, and warrants checks on both Riley and defendant.

While waiting for the results of the records checks, Jeter asked Riley to step out of the car, which she did. He also told defendant that he could move over into the driver’s seat, which he did. Jeter asked Riley about her criminal history, and she told him that she had previously been arrested for DUII and failure to appear. Riley continued to act “very anxious.” Jeter asked her when she had last used methamphetamine, and she told him that it had been about a year. Jeter then returned Riley to the passenger seat of the car.

As Jeter began writing Riley a ticket for speeding and driving without a driver’s license, her records check came back showing that her Washington license was suspended and that she also had prior drug arrests. At that point, based [124]*124on his training and experience with methamphetamine users, Jeter believed that he had reasonable suspicion that Riley was involved with drug use. Shortly thereafter, another officer, Chambers, arrived at the scene. Jeter asked Riley to step back out of the car, and asked her why she was not being truthful about her prior arrests. Riley became upset and started to cry. Jeter asked for permission to search the car, but Riley stated that it was not her car. Jeter told her that she could consent to a search of her belongings within the car, and she signed a form consenting to a search of a black suitcase.

During that conversation, defendant remained seated in the car’s driver seat. After presenting the consent form to Riley, Jeter also handed an identical form to Chambers, who handed the form to defendant and asked him to read it. Defendant signed the consent form without asking any questions or hesitating. About 15 minutes had passed since the traffic stop was initiated. At some point before signing the consent form, defendant’s license had been returned to him.

Having obtained permission to search the car, Chambers asked defendant to step out of the car, patted him down, took him to stand near Jeter’s patrol car with Jeter and Riley, and proceeded to search the car and its contents. Inside another black suitcase, Chambers found two glass pipes with methamphetamine residue on them. Defendant told Jeter that the pipes were his, and was later charged with possession of methamphetamine.

Before trial, defendant moved to suppress the evidence seized by the officers on the ground that it was obtained as the result of an illegal seizure. The court found that the officers had reasonable suspicion and consent to get into the car because of Riley, and that defendant was free to go before he gave his own voluntary consent to search the car. The court noted that defendant was not handcuffed or questioned about his own criminal activity or drug use. Ultimately, the court determined that defendant had given valid voluntary consent to search the car, and denied the motion to suppress. Defendant appealed after a conditional guilty plea.

[125]*125On appeal, defendant reasserts the arguments that he made to the trial court in support of his motion to suppress. He contends that he was illegally seized under Article I, section 9, by one or more of the officers’ actions: (1) taking defendant’s license for the purpose of running a records check, (2) running the records check on defendant, or (3) after defendant’s records check came back clear, asking for permission to search the car instead of telling him that he was free to go. Defendant contends that the evidence against him was discovered as a result of the officers’ illegal conduct, and should, therefore, be suppressed.

The state responds that defendant was not illegally seized at any time during the encounter and that, even if he was, the search was attenuated from any illegality by defendant’s voluntary consent. We agree with the state that defendant was not illegally seized either when his license was retained for a records check or when he gave his voluntary consent to a search of the car.

We begin by addressing defendant’s first two assertions: that he was illegally seized when Jeter took his license in order to run a records check on him or by the running of the records check itself. We have previously held that the request for and brief retention of a passenger’s driver’s license for a records check, for the purpose of determining if the passenger can lawfully drive away the vehicle, does not rise to the level of a seizure under Article I, section 9. See State v. Morgan, 226 Or App 515, 519, 203 P3d 927, aff’d, 348 Or 283, 230 P3d 928 (2010) (holding that such action is for a noncriminal investigative purpose and does not rise to the level of a seizure). Likewise here, Jeter’s request for and retention of defendant’s license to perform a records check did not constitute a seizure under Article I, section 9.

We next address defendant’s assertion that he was unconstitutionally seized when, after his records check came back clear and his license was returned to him, the officers asked him for permission to search the car. If he was unconstitutionally seized, then, he asserts, any evidence discovered as a result of the officers’ unlawful conduct must be suppressed.

[126]*126A stop occurs in violation of Article I, section 9, “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010) (footnote omitted; emphasis omitted). The analysis requires a fact-specific inquiry into the totality of the circumstances of each particular case. State v. Holmes, 311 Or 400, 408, 813 P2d 28 (1991).

Defendant argues that, after his records check came back clear, the officers should have told him that he was free to leave and should have ceased questioning him.

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Related

State v. Ashbaugh
244 P.3d 360 (Oregon Supreme Court, 2010)
State v. Morgan
230 P.3d 928 (Oregon Supreme Court, 2010)
State v. Rodgers
227 P.3d 695 (Oregon Supreme Court, 2010)
State v. Holmes
813 P.2d 28 (Oregon Supreme Court, 1991)
State v. Ehly
854 P.2d 421 (Oregon Supreme Court, 1993)
State v. Smith
270 P.3d 382 (Court of Appeals of Oregon, 2012)
State v. Morgan
203 P.3d 927 (Court of Appeals of Oregon, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
284 P.3d 1263, 252 Or. App. 122, 2012 WL 3727155, 2012 Ore. App. LEXIS 1044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mazzucchi-orctapp-2012.