State v. Morfin-Estrada

283 P.3d 378, 251 Or. App. 158, 2012 WL 2832469, 2012 Ore. App. LEXIS 880
CourtCourt of Appeals of Oregon
DecidedJuly 11, 2012
Docket090748809; A143650
StatusPublished
Cited by6 cases

This text of 283 P.3d 378 (State v. Morfin-Estrada) 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. Morfin-Estrada, 283 P.3d 378, 251 Or. App. 158, 2012 WL 2832469, 2012 Ore. App. LEXIS 880 (Or. Ct. App. 2012).

Opinion

DUNCAN, J.

In this criminal case, defendant appeals the trial court’s judgment convicting and sentencing him for one count of carrying a concealed weapon, ORS 166.240.1 On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence that, he argues, derived from a violation of his rights under Article I, section 9, of the Oregon Constitution.2 Specifically, defendant argues that, when the police officer who had stopped him for a traffic violation asked for his consent to a patdown for weapons, the officer unlawfully extended the duration of the traffic stop. We disagree. As explained below, like the trial court, we conclude that, when the officer asked defendant for his consent to a patdown for weapons, the officer had reasonable suspicion that defendant was carrying a concealed weapon. Therefore, although the request for consent extended the traffic stop, the extension was lawful. Accordingly, we affirm.

Whether an officer has unlawfully extended an otherwise lawful traffic stop in violation of Article I, section 9, is a question of law that we review for errors of law. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993); State v. Gomes, 236 Or App 364, 370, 236 P3d 841 (2010). When we do, we are bound by the trial court’s findings of historic fact, provided that there is constitutionally sufficient evidence in the record to support them. State v. Hall, 339 Or 7, 10, 115 P3d 908 (2005). If the trial court did not make express findings, we presume that the trial court resolved factual disputes in a manner consistent with its ultimate conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). We state the facts consistently with that standard.

[160]*160In the summer of 2009, Gresham Police Officer Galbreath worked the graveyard shift in east Portland. He dealt with gang activity on a nightly basis. Galbreath had previously found a variety of weapons, including firearms, on gang members. Violence between gangs was an ongoing problem, and it included stabbings and shootings. There had been an influx of new gangs into east Portland and a lot of gang fights that summer. Gangs fought over territory, which they claimed by marking it with graffiti tags. In Galbreath’s experience, tagging was a chronic problem, and it caused conflicts between gangs. As Galbreath explained the practice,

“rival gangs will come into another gang’s area and scratch out, you know, whoever is claiming the turf or the area, scratch out their logo and put up their own. So it’s a fight for power.”

Shortly after midnight on July 23, 2009, Galbreath, who was in uniform and driving a marked patrol car, saw defendant and another man, Delgado, walk across 172nd Avenue against the traffic light, which is a Class D traffic violation. ORS 814.020(l)(b), (3). Galbreath pulled over and got out of his patrol car to talk to defendant and Delgado. He asked them what they were doing out so late at night. Defendant and Delgado pointed out some fresh graffiti on a nearby garage door. They told Galbreath that they were part of a neighborhood patrol and had come out because they had received a telephone call that someone had been spraying graffiti in the area. Galbreath told them that he had seen them cross the street against the traffic light.

Galbreath noticed that Delgado had what appeared to be a gang tattoo and asked both Delgado and defendant what gang they were in. Defendant answered that they were members of the Paso Robles Boys (PRB). Galbreath was familiar with that gang and had seen “a lot” of their tags in the Gresham area. The fresh tag was not a PRB tag. Defendant told Galbreath that he and Delgado had been stopped earlier that night by the gang team and that they had already been checked for warrants. Galbreath asked defendant and Delgado for their gang nicknames, which they provided and he wrote down. Galbreath then asked defendant for his real name, which defendant also provided. [161]*161Defendant offered Galbreath his identification card, and Galbreath took it to write down defendant’s information and then returned it.

Sergeant Hernandez, who was part of the gang team, arrived. Like Galbreath, he was in uniform and driving a marked patrol car. He got out of his patrol car and stood next to Galbreath. He confirmed that the gang team had stopped defendant and Delgado earlier and they did not have any warrants.

About 10 minutes after he first contacted them, Galbreath asked defendant and Delgado if he could search them for guns. Delgado put his hands on his head, walked over to Galbreath, and turned around. Galbreath searched him, finding nothing. Galbreath turned to defendant and said, “How about you?” Defendant put his hands on his head and said, “I have my dagger in my left pocket.” With defendant’s hands above his head, Galbreath could see the hilt of the dagger, which had previously been concealed by defendant’s shirt. Galbreath seized the dagger and arrested defendant for carrying a concealed weapon.

Before trial, defendant moved to suppress all evidence obtained as a result of Galbreath’s request for consent to search. Citing Hall, defendant asserted that his consent was invalid because it was the product of an unlawful seizure, specifically, an unlawful extension of the traffic stop. In response, the state contended that the encounter between defendant and Galbreath was not a stop and, even if it was, during its course, Galbreath developed reasonable suspicion that defendant was carrying a weapon.

At the hearing on the motion, the prosecutor questioned Galbreath about why he had asked to search defendant and Delgado and whether he had reasonable suspicion that they were carrying weapons.

“[PROSECUTOR]: And why did you ask to search [them]?
“[GALBREATH]: Because there’s — their gang activity and gang involvement. A lot of times I run into the gang— people involved in gangs, they’ll have spray paint, a lot of graffiti coming up and down 172nd and there was graffiti [162]*162right behind them, looking for weapons, graffiti implements, guns, things they shouldn’t have.
“[PROSECUTOR]: Given the tagging that was going on and their stated reason for being out, did you think it was reasonable or did you have a reasonable suspicion that they were carrying weapons?
“[GALBREATH]: I’ve ran into many gangsters that carry weapons, especially knowing that the tagging behind them was not their own and they were out on their neighborhood patrol, which I don’t know of any neighborhood patrol there.
‘You know, I was getting to the point where I believed that it might be coming out for the retaliation tagging of their turf.”

Thus, Galbreath testified that he asked to search defendant and Delgado because of “their gang activity and gang involvement.” As to whether he had reasonable suspicion that defendant and Delgado were carrying weapons, Galbreath testified that he had encountered many gang members who carry weapons and that he thought defendant and Delgado might be coming out to retaliate for the tagging of their gang’s territory.

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Cite This Page — Counsel Stack

Bluebook (online)
283 P.3d 378, 251 Or. App. 158, 2012 WL 2832469, 2012 Ore. App. LEXIS 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morfin-estrada-orctapp-2012.