State v. Primeaux

216 P.3d 887, 230 Or. App. 470, 2009 Ore. App. LEXIS 1137

• Court: Court of Appeals of Oregon
• Decided: August 26, 2009
• Docket: 06C49868; A134910
• Status: Published

Opinions

SERCOMBE, J.

Defendant appeals a judgment of conviction for delivery of a Schedule I controlled substance, ORS 475.840(1). Defendant contends that the trial court erred in denying his motion to suppress evidence and in convicting him on the basis of an insufficiently corroborated confession. We conclude that the evidence was sufficient to convict defendant. We review the denial of defendant’s motion to suppress for legal error, State v. Sopiwnik, 176 Or App 127, 129, 30 P3d 430 (2001), and determine that the court erred in denying the motion to suppress evidence. Accordingly, we reverse and remand.

The following facts are uncontroverted. A City of Aurora police officer observed an automobile driven by defendant with a missing brake light cover such that the radiated light was white in color. Oregon law requires that an automobile display a red rear brake light. The officer activated his patrol car’s overhead lights to initiate a traffic stop. While he followed the automobile, defendant tossed a beer can out of the driver’s window. The officer stopped the automobile and interviewed defendant. Defendant admitted that he had thrown the can of beer out the window, explaining that he “didn’t want to get into trouble.” Defendant also stated that he had consumed two beers. The officer asked defendant to get out of the vehicle and to produce identification. Although the officer could detect a slight odor of alcohol on defendant’s breath, the officer determined that defendant was not intoxicated based on an examination of his eyes. The officer returned defendant’s driver’s license, warned him about driving with an open alcoholic beverage container and littering, and reminded him to get his brake light repaired.

The officer testified to what happened next:

“He [defendant] — said he understood, and he still just stood there. And he seemed kind of nervous. His hands were shaking. He kept looking back and forth. At that point, I asked him if there [were] any drugs or weapons in the car. [Defendant] said, ‘I’m just going to a party for my son.’ And I asked him if a drug dog were to walk around the vehicle, if it would detect anything. And [defendant] said, ‘I have an ounce of marijuana in my car.’ ”

The officer testified that he had asked defendant where the marijuana was in the car and that defendant had told him that it was in his backpack. The officer then placed defendant in handcuffs, entered the car, and seized the backpack. The officer could smell the odor of marijuana emanating from the backpack, and, after opening its larger compartment, he found the marijuana that led to defendant’s conviction.

In his second assignment of error, defendant argues that the trial court erred by not granting his motion for a judgment of acquittal on the ground that the evidence adduced at trial was not sufficient to convict him under ORS 136.425(1).¹ That statute provides:

“A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats; nor is a confession only sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed.”

Defendant told the officer that he was delivering marijuana to a party for his son. In substance, defendant contends that his confession is the only evidence of his intent to deliver the marijuana found in his possession and that, therefore, the trial court was required to grant his motion under ORS 136.425(1).

In reviewing defendant’s claim of error, we consider the record and all reasonable inferences that could be drawn from it in the light most favorable to the state to determine whether a reasonable juror could have found all the elements of the offense beyond a reasonable doubt. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995). In State v. Lerch, 296 Or 377, 677 P2d 678 (1984), the court held that ORS 136.425(1) does not require the state to corroborate each and every element of an offense to which a defendant has confessed. Rather, the statute

“requires evidence that tends to prove or establish the corpus delicti. * * *

* * * *

“We hold that ‘some proof means that there is enough evidence from which the jury may draw an inference that tends to establish or prove that a crime has been committed.”

296 Or at 397-98 (emphasis in original).

Here, the officer discovered two baggies of marijuana in defendant’s backpack. One baggie contained 4.8 grams of marijuana; the other baggie’s contents weighed 34.3 grams. The baggies were packaged separately, one in a baggie inside another container and the other in a baggie by itself. Focusing on that evidence, the state argues, and we agree, that a reasonable inference that could be drawn from the evidence is that the smaller amount of marijuana was for personal consumption and that the larger amount was for the purpose of delivery to other persons. See State v. Rodriguez-Barrera, 213 Or App 56, 60, 159 P3d 1201, rev den, 343 Or 224 (2007) (“[Possession of a controlled substance in a quantity that is inconsistent with personal use, when accompanied by possession of materials commonly associated with delivery, is sufficient to establish possession with intent to deliver the controlled substance.”); see also State v. Alvarez-Garcia, 212 Or App 663, 159 P3d 357 (2007). Thus, there is some evidence that tends to corroborate defendant’s admission that he was delivering the marijuana to his son at a party. It follows that the trial court did not err in denying defendant’s motion for judgment of acquittal.

Defendant next asserts that the trial court erred in denying his motion to suppress the evidence of marijuana and his statements to the police officer following the questions about drugs and weapons. Defendant contends that the evidence was obtained as a result of a violation of Article I, section 9, of the Oregon Constitution.² Defendant argues that the state acquired the evidence by unlawfully extending the traffic stop or, alternatively, stopping him for a second time by questioning him about drugs and what a drug dog would find. The stop extension or second stop occurred, according to defendant, without any reasonable suspicion that he had committed a crime. The state counters that the officer’s statements made it clear that the traffic stop had ended and that defendant was free to leave before the questions were asked. Moreover, it asserts that the officer’s questions about drugs or weapons and a drug dog did not constitute a second restraint on defendant’s freedom of movement under Article I, section 9, because the questions did not manifest an exercise of the officer’s authority.

We conclude that Article I, section 9, was violated when defendant was questioned during a traffic stop about matters unrelated to the stop, thereby prolonging the stop without reasonable suspicion of further criminal activity. As a result of that unlawful questioning, defendant’s backpack was confiscated and searched. That search and the unlawful inquiries yielded the evidence sought to be suppressed. Under State v. Hall, 339 Or 7, 25, 115 P3d 908 (2005), that evidence should have been suppressed because its discovery was not otherwise inevitable or sufficiently attenuated from the unlawful police conduct.

The legal analysis is straightforward. Article I, section 9, precludes an “unreasonable search, or seizure.” We summarized the circumstances that create an unreasonable traffic stop in State v. Rodgers, 219 Or App 366, 370-71, 182 P3d 209, rev allowed, 345 Or 301 (2008):

“To be reasonable, traffic stops must be supported by reasonable suspicion that the person stopped has committed a traffic infraction. If reasonable suspicion of a traffic infraction exists, ‘[a]n officer can lawfully detain a driver * * * for “the time reasonably required to complete a citation and any other documents that must be given to the citizen in connection with the detention.” ’ During a lawful traffic stop, an officer may, without violating Article I, section 9, question the motorist about matters that are unrelated to the stop. Questioning that occurs during, or causes, an extension of the traffic stop beyond that reasonable time, however, is the functional equivalent of a new restraint of the motorist’s liberty, and must be supported by reasonable suspicion that the motorist has engaged in some further criminal activity. * * *

“Inquiries unrelated to the initial traffic infraction can lead to unlawful restraint of a person’s liberty in two situations. The first occurs when the officer concludes a lawful stop and then reinitiates a second stop by beginning to question the person about unrelated matters without reasonable suspicion. * * *

“The second way in which an officer can unlawfully question a person after a lawful traffic stop occurs when the officer, without letting the person know expressly or by implication that he or she is free to leave, detains the person beyond the time reasonably required to investigate the traffic infraction and issue a citation.”

(Emphasis in original; citations omitted.)

The state does not contend, and the record does not suggest, that the police officer reasonably suspected that defendant had committed a crime until his admission of marijuana possession. Under the Rodgers framework, the questioning of defendant about matters unrelated to the traffic stop before that admission, and after completion of the traffic stop investigation, unconstitutionally restrained his liberty unless (1) the original traffic stop had ended and (2) the renewed questioning did not constitute a new stop. The state had the burden of proof to show both of those circumstances.³

The state’s first hurdle, then, is to show that the traffic stop had ended before the questioning about drugs, weapons, and the likely result of a dog search. In its findings, the trial court assumed that the traffic stop continued at the time of that questioning, but surmised that the police officer did “not need probable cause or reasonable suspicion to ask a lawfully stopped person for consent to search.” The trial court’s assumption about the continuation of the stop was correct, although its subsequent conclusion was not.⁴

In State v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991), the court held that a person is “seized” for purposes of Article I, section 9, in the following situations:

“(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) whenever an individual believes that (a) above, has occurred and such belief is objectively reasonable in the circumstances.”

(Footnote omitted.) Whether a person is no longer detained, then, depends on whether the law enforcement officer intentionally ends the restriction on the person’s freedom of movement or whether the person reasonably believes that the officer has intentionally ended that restriction.

The determination of whether a person has been seized, and whether a seizure has ended, is determined by examination of all of the circumstances of a particular case, and the facts of each case are unique. There may be circumstances where a reasonable person could conclude that an official detention has ended without being told, ‘You are free to leave.” Obviously, if the police officer concludes all inquiries and leaves the area without instructing the detainee to remain there, the detention ends.

Here, however, there was insufficient evidence that the traffic stop had ended before the questioning, under either an objective or subjective test of its expiration. There is no evidence that defendant was told that he was free to leave. After the return of defendant’s driver’s license, the officer warned defendant about the consequences of driving with an open container and littering. He testified that he had continued to watch defendant, who “seemed kind of nervous. [Defendant’s] hands were shaking. He kept looking back and forth.” The officer did not move to return to his patrol car. He stated that his estimate of the time between the warning and renewed interrogation was a “guess, probably ten to 15 seconds.” There was no friendly conversation that preceded the official inquiries. Cf. State v. Bretches, 225 Or App 602, 609, 202 P3d 883 (2009) (stop ended when defendant was told he was free to go and ordinary conversation ensued). Defendant apparently did not believe that the inquiry had ended, because he continued to tremble and did not return to his car.

The only evidence that the state relies on to prove the ending of the stop is a 10- to 15-second gap in the dialogue between the police officer and defendant between the official warnings about defendant’s future conduct and the drug interrogation. In light of the facts stated above and the absence of actions by the police officer communicating that the stop had ended, the time lapse alone is insufficient to discharge the state’s burden of proof on this issue. Those facts do not show that the exercise of authority over defendant ended sometime after the warning and before the additional questioning or that defendant reasonably believed that the stop had ended.

The dissent asserts that the officer’s warnings and the gap in the conversation were not coercive and did not “manifest[ ] objectively an interference with the person’s freedom of movement.” 230 Or App at 482-83 (Edmonds, J., dissenting). The initial issue, however, is not whether that evidence shows coercion or would independently prove the existence of a stop, but whether that evidence shows that the stop had ended. The state’s proof of a pause in formal communications, during which time the police officer remained in defendant’s presence and watched him, is insufficient evidence that defendant “knew expressly or by implication that [he was] free to leave.” Thus, the questions unrelated to the traffic stop exceeded the officer’s authority under Article I, section 9. Therefore, the evidence was obtained as a result of an unconstitutional deprivation of defendant’s liberty, and the trial court erred in denying defendant’s motion to suppress evidence.

Reversed and remanded.

1 Because defendant would be entitled to more complete relief — an acquittal, rather than a remand — if successful on his second assignment of error, we address that assignment of error first. State v. Lavadores, 230 Or App 163, 165 n 2, 214 P3d 86 (2009).

2 Article I, section 9, provides that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”

3 Under ORS 133.693(4), where, as here, “the motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.”

After defendant’s counsel argued that the evidence should be suppressed under State v. Hall, 339 Or 7,115 P3d 908 (2005), because the stop was prolonged improperly, the trial court noted: “THE COURT: I was just reviewing Hall. I wasn’t familiar with Hall. So I’m quickly trying to review that. I see that it is distinguishable * * *. Hall became an unlawful stop because the officers directed the Defendant to come to them, so he was originally unlawfully stopped, and then it was whether or not there was a exploitation of that illegal stop.

“Here, there was not an illegal stop. And the stop, as conceded, is a valid stop. The officer, then, does not need probable cause or reasonable suspicion to ask a lawfully stopped person for a consent to search.

“* * * So it was not even a request for consent to search, hut merely a question about whether or not drugs would be found in the vehicle, and the Defendant admitted there would be.

“So I do deny the Defendant’s motion to suppress.”

4 The trial court concluded that, because the inquiries were made to a “lawfully stopped person,” the questions were constitutionally appropriate. That legal conclusion was drawn before our decision to the contrary in Rodgers.