State v. Nye

435 P.3d 805, 295 Or. App. 559
CourtCourt of Appeals of Oregon
DecidedJanuary 3, 2019
DocketA162779
StatusPublished
Cited by8 cases

This text of 435 P.3d 805 (State v. Nye) 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. Nye, 435 P.3d 805, 295 Or. App. 559 (Or. Ct. App. 2019).

Opinion

GARRETT, J. pro tempore.

*560Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894. In a single assignment of error, defendant challenges the trial court's denial of his motion to suppress evidence discovered during a traffic stop, arguing, among other things, that the officer's patdown of defendant that led to the discovery of the evidence was unlawful. For the reasons explained below, we agree with defendant and reverse.

We review a trial court's denial of a motion to suppress for legal error and are bound by the trial court's findings if they are supported by evidence in the record. State v. Parnell , 278 Or. App. 260, 261, 373 P.3d 1252 (2016) (citing State v. Regnier , 229 Or. App. 525, 527, 212 P.3d 1269 (2009) ). If the trial court did not make express findings of fact, we "presume that the facts were decided in a manner consistent with the trial court's ultimate findings." Id. We state the facts in accordance with that standard.

The relevant facts are undisputed and based on testimony presented at the hearing on defendant's motion to suppress and a recording of the traffic stop entered into the record. State Trooper Hargis initiated a traffic stop after witnessing a car cross the yellow center line of the road, a traffic violation. Hargis approached the car and immediately smelled alcohol and marijuana. He asked both the driver, Ramirez, and the passenger, defendant, "who has [an] open container?" Defendant admitted to drinking beer earlier and having a cup of beer in the center console, another traffic violation. Hargis asked for identification, registration, and proof of insurance from both individuals. Defendant provided a valid ID card; Ramirez did not provide any identification. Neither Ramirez nor defendant provided proof of vehicle insurance.

Hargis contacted dispatch to determine whether Ramirez had a valid driver's license and whether the car was insured. Hargis learned that Ramirez did have a driver's license but that it was suspended. Hargis continued making efforts to identify Ramirez and defendant; in the course of doing so, Hargis asked Ramirez to step out of the car and stand behind it, and Ramirez complied.

*561Hargis then walked to the front passenger-side window of the car to talk to defendant. Hargis observed that defendant was "restless" and "fidgety." Hargis, who had training as a Drug Recognition Expert, believed from his training that defendant's demeanor indicated that he was under the influence of amphetamine. Defendant also appeared to be "guarding" something on his left side. Hargis asked if defendant had any *807weapons. In response, defendant shook out his sweatshirt pocket and allowed Hargis to open the car door and search the area immediately around him. Hargis found no weapons or contraband. Hargis then asked defendant for permission to search the rest of the car and in response, defendant exited the car.

As defendant got out of the car, Hargis noticed bulges in defendant's pants and sweatshirt and believed that defendant might be carrying a weapon. Concerned for his safety, Hargis conducted a nonconsensual patdown search of defendant. In the course of the patdown, a methamphetamine pipe fell out of defendant's clothes and onto the ground. Defendant was arrested and charged with unlawful possession of methamphetamine.

Before trial, defendant moved to suppress the evidence discovered during the stop, arguing that neither the request to search the entire car nor the patdown of defendant were "reasonably related" to the traffic violation underlying the traffic stop, and that all evidence discovered after Hargis requested consent to search the entire car was required to be suppressed. See ORS 810.410(3)(b) (police officers may detain person for traffic violation for purposes of investigation reasonably related to the traffic violation, identification, and issuance of citation). The state argued, among other things, that Hargis's request to search the car and his patdown of defendant were justified by reasonable safety concerns. In support of those arguments, the state elicited testimony from Hargis about what Hargis observed and believed during the stop.

The trial court denied the motion to suppress, explaining in a letter opinion that Hargis's request to search the car was lawful and that Hargis's patdown search was justified by objectively reasonable officer-safety concerns.

*562Defendant entered a conditional guilty plea and was convicted of unlawful possession of methamphetamine.

On appeal, defendant challenges the trial court's denial of his motion to suppress on various grounds, including that Hargis's nonconsensual patdown search of defendant was unlawful because it was not justified by objectively reasonable officer-safety concerns. The state responds that that argument is unpreserved and incorrect on the merits. As explained below, we conclude that defendant's argument was preserved and that, on this record, the state failed to carry its burden to show that the officer-safety exception to the warrant requirement applies.

Regarding preservation, although it is true that defendant did not make an officer-safety-related argument below, the state raised that issue to the trial court and elicited testimony from Hargis specifically to support the state's theory. The trial court also expressly ruled on the issue. The state does not contend that it had an inadequate opportunity to argue the officer-safety issue or that the record would have developed differently if defendant had disagreed with the state's officer-safety theory. Accordingly, we consider the purposes of the preservation requirement to have been served, notwithstanding defendant's silence on the issue below. See Peeples v. Lampert , 345 Or. 209, 219-20, 191 P.3d 637

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Cite This Page — Counsel Stack

Bluebook (online)
435 P.3d 805, 295 Or. App. 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nye-orctapp-2019.