222 P.3d 1103 (Or.App. 2009), A136981, State v. Hemenway

Docket Nº:071107, A136981.
Citation:222 P.3d 1103, 232 Or.App. 407
Opinion Judge:SERCOMBE, J.
Party Name:STATE of Oregon, Plaintiff-Respondent, v. Leland Jay HEMENWAY, Defendant-Appellant.
Attorney:Susan F. Drake, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services. Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief w...
Judge Panel:Before EDMONDS, Presiding Judge, and SERCOMBE, Judge, and CARSON, Senior Judge.
Case Date:December 09, 2009
Court:Court of Appeals of Oregon
 
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222 P.3d 1103 (Or.App. 2009)

232 Or.App. 407

STATE of Oregon, Plaintiff-Respondent,

v.

Leland Jay HEMENWAY, Defendant-Appellant.

No. 071107, A136981.

Court of Appeals of Oregon.

December 9, 2009

Argued and Submitted June 23, 2009.

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[Copyrighted Material Omitted]

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Susan F. Drake, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.

Before EDMONDS, Presiding Judge, and SERCOMBE, Judge, and CARSON, Senior Judge.

SERCOMBE, J.

[232 Or.App. 409] Defendant appeals a conviction for possession of methamphetamine. ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence of incriminating statements and of drugs and drug paraphernalia seized during searches of his person and residence. Defendant argues that he was unlawfully stopped by the police in violation of his rights under

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Article I, section 9, of the Oregon Constitution. 1 He further contends that his inculpatory statements and consent to the searches resulted from that unlawful police conduct. For the reasons stated below, we vacate defendant's conviction and remand for further proceedings.

We state the facts consistently with the trial court's explicit and implicit findings. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993); Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). In April 2007, deputies Orella and Russell responded to a call from Taylor, defendant's girlfriend, regarding the Taylor residence's electric power and the whereabouts of Taylor's son. The deputies, in separate cars, arrived at Taylor's residence just before midnight. Both deputies parked in the driveway behind defendant's truck, blocking the truck's exit route. The deputies were in uniform, carrying guns, and driving marked sheriff's vehicles. Defendant and Taylor were both outside the house when the deputies arrived. Deputy Orella approached Taylor and instructed defendant to go talk to Deputy Russell. Orella then informed Russell that he had observed a rifle in defendant's truck.

Defendant met Russell near the back of the truck and voluntarily explained that he was in the process of moving out of the house and many of his belongings were in the truck, including the rifle and a handgun. Russell asked defendant if he was a felon; defendant responded that he was not. In order to verify defendant's assertion that he was not a felon, Russell asked for defendant's name and date of birth. Defendant provided the information to Russell. Defendant asked Russell's permission to have a cigarette. Russell said [232 Or.App. 410] that he could, but that he wanted to search defendant to " ease his mind." Defendant agreed to that search. Russell found a breath mint tin in one of defendant's pockets. The trial court found that Russell first asked if he could open the tin, and, after defendant agreed, Russell discovered a methamphetamine pipe and a baggie that Russell suspected contained methamphetamine residue. Russell placed defendant under arrest and advised him of his Miranda rights.

Russell then asked defendant if he had more drugs in the house. Defendant admitted that there might be and consented to Russell retrieving the drug-related items from the house. Defendant accompanied Russell into the house and pointed out where the methamphetamine paraphernalia was, which Russell then located and seized.

Before trial, defendant moved to suppress all evidence obtained from the warrantless search of his person and residence and his inculpatory statements made to the deputies. Defendant argued that the deputies' conduct before his grants of consent and statements constituted an unlawful stop under Article I, section 9, of the Oregon Constitution and that Russell exploited the unlawful stop when he obtained defendant's consents and statements. The trial court determined that defendant was not " seized" by Russell and that defendant's consents were voluntary. Defendant entered a conditional plea of guilty, reserving the right to appeal the trial court's denial of his motion to suppress. This appeal followed.

On appeal, defendant assigns error to the denial of his motion to suppress, again arguing that the evidence obtained against him was the result of an unlawful stop. Defendant further argues that the acts of blocking his truck, obtaining his identification in order to run a criminal check, and asking to search defendant both independently and collectively constituted a stop. The state contends that the actions did not constitute a stop and that defendant's grants of consent were voluntary. Alternatively, the state argues that, even if the deputy's actions did constitute a stop, the seizure was temporary and reasonable under the totality of the circumstances. Under ORS 133.693(4), where, as here, a " motion to suppress challenges evidence seized as the result [232 Or.App. 411] of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution."

We conclude that defendant reasonably could have believed that he was stopped under

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Article I, section 9, when the movement of his truck was physically constrained, he was directed to move to a location to speak with a deputy, his identification was obtained, and he was questioned by the deputy. If defendant actually held that subjective belief, the stop was unlawful under the state constitution because it occurred without any reasonable suspicion of criminal activity. Defendant's grants of consent and admissions resulted from the unlawful stop, which, in turn, yielded the evidence he sought to have suppressed. Under State v. Hall, 339 Or. 7, 25, 115 P.3d 908 (2005), that evidence could have been suppressed because its discovery was not otherwise inevitable or sufficiently attenuated from the unlawful police conduct. 2

We use a two-step analysis to determine the legality of a stop under Article I, section 9. We first determine whether a stop occurred; and, if so, we then assess whether the...

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