State v. Musalf

380 P.3d 1087, 280 Or. App. 142, 2016 Ore. App. LEXIS 968
CourtCourt of Appeals of Oregon
DecidedAugust 3, 2016
Docket12CR1006; A154499
StatusPublished
Cited by8 cases

This text of 380 P.3d 1087 (State v. Musalf) 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. Musalf, 380 P.3d 1087, 280 Or. App. 142, 2016 Ore. App. LEXIS 968 (Or. Ct. App. 2016).

Opinion

WILSON, S. J.

Defendant appeals a judgment convicting him of unlawful possession of a Schedule I controlled substance, ORS 475.752(3)(b). He assigns error to the trial court’s denial of his motion to suppress evidence. Specifically, defendant contends that the warrantless search of the inside of his pocket, which yielded a plastic container holding the drugs, was neither consensual nor justified by the officer safety exception to the warrant requirement and, thus, violated his rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. We agree that the search of the interior of defendant’s pocket exceeded the scope of his consent to a patdown and was not supported by a reasonable suspicion, based on specific and articulable facts, that defendant might pose a serious threat of harm to the officer or others present, thereby violating his rights under Article I, section 9. Accordingly, we reverse and remand.

I. FACTS

We state the facts consistent with the trial court’s explicit and implicit factual findings, which the record supports. State v. Culley, 198 Or App 366, 374, 108 P3d 1179 (2005). On the morning of December 7, 2012, someone called the Curry County Sheriff’s Office with a complaint that several people in an older red car with a loud exhaust were stealing gasoline near Nesika Beach. The caller did not give a make, model, year, or license plate number for the car. However, no deputies were available to investigate the complaint. More than two hours later, Patrol Lieutenant Ward was pulled off to the side of the road about 20 miles from Nesika Beach when he saw and heard an older red car with a loud exhaust approach on Highway 101. As the car passed, Ward could see the driver and recognized him as Klamroth. Ward had arrested or cited Klamroth several times for driving while suspended and knew that he did not have a valid driver’s license. Ward also knew that Klamroth was “involved in the drug world, the activities of drugs and hanging around people who are known drug users.” By drugs, Ward meant methamphetamine and marijuana.

[144]*144Ward immediately began following the red car, which appeared to be speeding up as he was gaining on it. When he was about to catch up to the car, Ward noted that its speed was 66 miles per hour. As Ward was about to turn on his overhead lights to pull Klamroth over, Klamroth “whipped into an overlook *** at an unsafe speed.” Ward turned on his overhead lights and pulled in behind the red car. Klamroth stepped out of the car like he was going to run, and Ward yelled at him to stay with the car. Ward stated that he was concerned for his safety when it appeared that Klamroth was going to run because, based on his training and experience, when someone is ready to run they may be dangerous or have weapons.

Ward contacted Klamroth and observed that his speech was slurred, he could not stand still, he was twitching, and he had “all the characteristics of being under the influence of a controlled substance.” Oregon State Police Trooper Rushton arrived at the scene 10 minutes after the stop and began investigating Klamroth for driving under the influence. Rushton ultimately arrested Klamroth for that offense. Detective Gardiner also arrived at the scene to assist Ward.

There were three passengers in the red car, including defendant. Ward learned that none of them had a valid driver’s license. He recognized the front seat passenger as M. Musalf,1 someone he had dealt with a month or two before. Although Ward did not testify that he recognized defendant or knew of prior specific law enforcement interactions with him, he testified that his deputies had “dealt with the Musalf family with drugs, known drug users.” Again, Ward specified that, by “drugs,” he meant methamphetamine. Defendant was in the backseat with Chappelle, whom Ward also recognized as a known drug user. The presence of four known drug users in the car caused Ward concern because “[t]here’s probably some drugs in the vehicle, and drug users usually have — you know, known drug users possibly carry weapons.” Ward also testified that, based on his training and experience, when the drug of choice is methamphetamine, [145]*145the user is more of a security risk because of the behavioral changes caused by that drug.

Detective Gardiner contacted the probation department and detained M. Musalf for a probation violation at the department’s request. He put her in his vehicle. Meanwhile, Ward was standing outside the rear door of the red car and saw defendant and Chappelle in the backseat “doing some movements, like they were trying to stash something, get rid of something.” He was concerned — stating, “a little bit of hair goes up on the back of your neck” — and explained that he wondered, “Do they have weapons, or are they trying to stash some drugs, or what?” Their heads were down and their arms were moving. Ward also saw a white powder smeared on the seat and floorboards, as though it had been rubbed around by feet. It “crossed [Ward’s] mind that it’s possibly methamphetamine.”

After Gardiner arrested M. Musalf, he made contact with Chappelle, asked him to step out of the car, and patted him down for weapons. Gardiner eventually cited Chappelle for unlawful possession of prescription drugs and released him on foot.

Meanwhile, Ward asked defendant to get out of the car. He “wanted to make sure, you know, they weren’t going to stash any more, destroy any more drugs, if that was actually drugs in the car that we saw.” Ward also testified that he had reasonable suspicion that the powder he saw was a controlled substance and that he had reasonable suspicion to investigate defendant for possession of drugs. However, the testimony about the conversation between the officers and defendant after defendant stepped out of the car is ambiguous. Ward testified:

“Trooper Rushton contacted him and asked if he could, you know, search his person. He gave permission, and then there was a little banter back and forth about yea and nay, and — but he was searched and we found what we believed was methamphetamine on him.”

He also testified, “What I remember him saying was that ‘Yeah, you can search me. I’m not under arrest.’” At another [146]*146point during the hearing on the motion to suppress, Ward testified:

“I’m not exactly — I don’t recall exactly what the conversation was. I — I do recall him saying, ‘Yeah, you can search. I’m not under arrest,’ and then I think he said something about, ‘Oh, why should I let you search me?’
“And then — And then Trooper Rushton says, ‘We’re going to search you because of our safety.’”

On cross-examination, Ward read from his report:

“We asked [defendant] if we could search his person. At first he declined, and when * * * we told [him] that we saw him messing around with something in the backseat, he consented to the search, to the pat-down.”

When defense counsel asked again if defendant had declined consent to search, Ward responded:

“Like I said, I don’t know exactly how he said it. *** I can only testify on what my report says because I don’t recall exactly what the conversation was.

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Cite This Page — Counsel Stack

Bluebook (online)
380 P.3d 1087, 280 Or. App. 142, 2016 Ore. App. LEXIS 968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-musalf-orctapp-2016.