State v. Shupe

368 P.3d 41, 276 Or. App. 496, 2016 Ore. App. LEXIS 192
CourtCourt of Appeals of Oregon
DecidedFebruary 18, 2016
Docket0900189CR; A152199
StatusPublished
Cited by4 cases

This text of 368 P.3d 41 (State v. Shupe) 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. Shupe, 368 P.3d 41, 276 Or. App. 496, 2016 Ore. App. LEXIS 192 (Or. Ct. App. 2016).

Opinion

LAGESEN, P. J.

A traffic stop led to the discovery of four pounds of marijuana in defendant’s car. That discovery led to two charges against defendant: one for delivery of marijuana, ORS 475.860, and one for possession of marijuana, ORS 475.864. After a bench trial, a judge convicted defendant of those charges. Defendant appeals, assigning error to three rulings by the trial court: (1) the denial of defendant’s motion to suppress the marijuana and other evidence discovered in defendant’s car; (2) the granting of the state’s motion in limine to exclude evidence of defendant’s Washington State business license to dispense marijuana, defendant’s permit to legally resell marijuana in Washington State, receipts for cash proceeds from defendant’s Washington marijuana dispensary, and a letter from defendant’s physician verifying that defendant could legally possess marijuana in Washington State, both as a caregiver and patient; and (3) the denial of defendant’s motion to merge the guilty verdict for marijuana possession with the guilty verdict for marijuana delivery. For the reasons that follow, we affirm.

MOTION TO SUPPRESS

Because a ruling in defendant’s favor on his motion to suppress would necessitate a reversal of both convictions, we turn first to defendant’s challenge to the trial court’s denial of that motion. In that motion, defendant argued that the police officer who stopped him had neither reasonable suspicion that defendant was committing the crime of driving under the influence of intoxicants, ORS 813.010, nor probable cause to believe that defendant had committed the traffic violation of failure to maintain his lane, ORS 811.370,1 and, consequently, that the stop violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court concluded that the officer had reasonable suspicion to stop defendant for driving under the influence of intoxicants and, based on [499]*499that conclusion, denied the motion to suppress. We review to determine whether the trial court’s factual findings are supported by constitutionally sufficient evidence in the record and whether the trial court correctly applied applicable principles of law, State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), and affirm the trial court’s ruling.

Consistently with our standard of review, we draw our statement of historical facts from the trial court’s explicit findings, to the extent that the evidence in the record supports those findings. To the extent that the trial court did not make express findings on a particular point, we state the facts in a manner consistent with the trial court’s ultimate conclusion, so long as the record supports that view of the facts. State v. Regnier, 229 Or App 525, 527, 212 P3d 1269 (2009) (citing Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968)).

On August 21, 2009, at 2:00 p.m., Oregon State Police Trooper Prevett stopped defendant’s car as it traveled north on Oregon Highway 97. Prevett had observed defendant’s car drifting between the center line and the fog line. Although Prevett could not tell if defendant ever crossed the center line, he saw the passenger side tires of defendant’s car either touch or cross the fog line. Prevett began to follow defendant and, as he caught up to defendant over the course of several miles, he saw defendant continue to weave in his lane and cross the fog line at least two more times. Prevett knew from his training that such conduct could be a sign of driving under the influence of intoxicants, and thought that his observations of defendant’s driving gave him both probable cause to believe that defendant had committed the traffic violation of failing to maintain his lane, ORS 811.370, and reasonable suspicion that defendant was committing the crime of driving under the influence of intoxicants, ORS 813.010.

Almost immediately after approaching defendant’s vehicle, Prevett noticed the smell of marijuana coming from defendant’s car. Based on that smell, Prevett asked defendant how much marijuana he had and whether defendant had a medical marijuana card. In response, defendant gave Prevett his Washington State medical marijuana card. [500]*500Prevett noticed a small bag on the front seat and asked if he could see it. Defendant showed Prevett that small bag, which contained marijuana, and a jar with marijuana in it.

Prevett requested consent to search defendant’s car, but defendant refused to grant consent. Prevett searched the car anyway and discovered four pounds of marijuana, which he seized. After Prevett seized the marijuana, defendant explained that he had purchased the marijuana in Bend, Oregon, and was transporting it to Washington where he would “dispense” it.

The trial court concluded that Prevett had reasonable suspicion to stop defendant for driving under the influence of intoxicants. The trial court did not address Prevett’s other asserted basis for the stop — defendant’s failure to drive within a lane. Before us, defendant reiterates the arguments he made to the trial court. We, like the trial court, conclude that Prevett’s observations of defendant’s driving gave him reasonable suspicion to stop defendant for driving under the influence of intoxicants.

An officer has reasonable suspicion to stop a suspect to investigate a crime when (1) the officer subjectively believes that the suspect may have committed a crime, or is about to commit one; and (2) that belief is objectively reasonable under the totality of the circumstances. ORS 131.605(5); ORS 131.615(1); State v. Mitchele, 240 Or App 86, 90-91, 251 P3d 760 (2010). However, “[r]easonable suspicion ‘does not require that the facts as observed by the officer conclusively indicate illegal activity but, rather, only that those facts support the reasonable inference of illegal activity by that person.’” State v. Dampier, 244 Or App 547, 551, 260 P3d 730 (2011) (quoting State v. Hiner, 240 Or App 175, 181, 246 P3d 35 (2010)). Here, defendant does not dispute that Prevett subjectively believed that defendant may have been driving under the influence of intoxicants. Accordingly, the legal issue for us is whether Prevett’s subjective belief was objectively reasonable, in the light of “the objective facts known to the officer at the time of the stop.” State v. Frias, 229 Or App 60, 64, 210 P3d 914 (2009) (internal quotation marks and citation omitted).

[501]*501We previously have concluded — on several occasions— that a police officer’s observation of a vehicle weaving in its own lane provides a sufficient basis to reasonably believe that the driver of the vehicle is operating the vehicle under the influence and to stop the vehicle for further investigation.

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Cite This Page — Counsel Stack

Bluebook (online)
368 P.3d 41, 276 Or. App. 496, 2016 Ore. App. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shupe-orctapp-2016.