State v. Toll

432 P.3d 1131, 295 Or. App. 277
CourtCourt of Appeals of Oregon
DecidedDecember 12, 2018
DocketA158874
StatusPublished
Cited by1 cases

This text of 432 P.3d 1131 (State v. Toll) 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. Toll, 432 P.3d 1131, 295 Or. App. 277 (Or. Ct. App. 2018).

Opinion

EGAN, C. J.

*1133*279Defendant, who was convicted after a stipulated facts trial of one count of possession of methamphetamine, ORS 475.894, appeals, assigning error to the denial of a motion to suppress evidence. As ultimately framed by the parties on appeal, the dispositive issue reduces to whether an officer's request for consent to frisk defendant for weapons during a criminal investigatory stop unlawfully extended that stop. We conclude that the officer's request was based on an objectively reasonable perception of "circumstance-specific concerns for [his] safety" and an objectively reasonable "deci[sion] that [that request] was necessary to address that danger." State v. Jimenez , 357 Or. 417, 429-30, 353 P.3d 1227 (2015) ; see also State v. Miller , 363 Or. 374, 381, 422 P.3d 240, adh'd to as modified on recons , 363 Or. 742, 428 P.3d 899 (2018). Accordingly, we affirm.

Whether an officer's actions effected an unlawful extension of a stop is a question of law, which we review for errors of law. State v. Rodgers/Kirkeby , 347 Or. 610, 625, 227 P.3d 695 (2010). The facts material to our review are undisputed.

In the early evening of April 1, 2014, Oregon State Police Sergeant Plummer was on patrol near Shaw, in Marion County. Plummer, a highly-experienced officer with nearly 25 years' service in the Patrol Services Division and who regularly patrolled in the Shaw area, noticed a pickup truck that he did not recognize pulled over to the side of a rural road. His attention heightened when, after he had passed the vehicle, the pickup "pulled a U-turn." Plummer followed and noticed, when the pickup stopped at an intersection and later slowed at a railroad crossing, that one of its brake lights was not working. Plummer stopped the pickup for that traffic violation.

Plummer then approached the pickup from the passenger side.1 As he did so, it "was still light outside" and traffic was light. Defendant was the driver, and with him were two passengers, a man and a woman; the windows were rolled *280down. Plummer explained why he had initiated the stop and asked for defendant's driver's license, registration, and proof of insurance-and, as he did so, Plummer smelled what he believed to be the odor of "unused" (as opposed to "burnt" or "smoked") methamphetamine "coming from inside the vehicle." The odor "wasn't overwhelming," but "it was enough to get [Plummer's] attention."2 After Plummer obtained the documents from defendant, but before he returned to his patrol car to run a check on that information, another officer radioed to ask if Plummer "needed a cover unit." Plummer responded that he did.3

The ensuing records check disclosed no license suspensions, outstanding warrants, or such concerning information as assaultive conduct against police officers. But for the smell of methamphetamine, at that point Plummer would ordinarily have issued a warning about the equipment violation, and defendant would have been free to go. Instead, Plummer returned to the pickup and, because he believed he had reasonable suspicion of possession of methamphetamine (though he had no "indication of which of the three persons in the truck had the methamphetamine"), Plummer asked defendant to step out of the vehicle to talk with him.

Defendant, who had been fully "cooperative" during the encounter, complied. Plummer spoke with defendant at the rear of the pickup, to separate defendant from his passengers, and told defendant that he had smelled the odor of methamphetamine coming from inside the pickup and wanted to talk with defendant and his passengers about that odor. Although defendant responded that he *1134"didn't have any problem with that," his demeanor changed once Plummer "brought up the methamphetamine." From that point in the encounter, defendant "stiffened," becoming "more nervous" and "more rigid," "nervously looking side to side and away," avoiding eye contact with Plummer and, instead, "look[ing] at his peer" in the cab of the pickup. *281Defendant also assumed a different and "unusual" body posture, which Plummer described as someone "get[ting] in that fight or flight mode." To Plummer, defendant appeared to be "starting to calculate whether [he] should stay, whether [he] should run, whether [he] should fight[.]" For reasons amplified below, see 295 Or. App. at 289-90, 432 P.3d at 1139, that change in defendant's demeanor and posture-which deviated from the typical "reasonable arc of movement"4 -made Plummer "nervous." Plummer "didn't want [defendant] reaching into his pants pockets."5 Accordingly, Plummer asked defendant if he could frisk the area of his pants pockets "for my safety."6 Defendant responded affirmatively.

Plummer then frisked defendant's pants pocket area and felt an object that was similar in shape and dimensions to either an inhaler or a drug pipe. When Plummer asked defendant what the object was, defendant replied that it was "something to hold keys with" and agreed to take the object out so Plummer could see it. As defendant started to pull the object (which was, in fact, a hollow key holder) from his pocket, its lid split, momentarily revealing what appeared to be the cap of a syringe, and Plummer smelled the odor of methamphetamine. When Plummer told defendant that he had smelled methamphetamine and, ultimately, that "he could open [the container] or [Plummer] could," defendant began to call out to the woman passenger in the pickup for his cell phone so he could call an attorney. Plummer, concerned that the encounter was "heightening," ordered defendant to place his hands on the hood of the patrol car. Plummer then removed the container from defendant's pocket and opened it; inside was a used syringe and what proved to be crystal methamphetamine.

*282

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Related

State v. Sarmento
439 P.3d 994 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
432 P.3d 1131, 295 Or. App. 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-toll-orctapp-2018.