State v. Acuna

• Decision Date: 02 July 2014
• Docket Number: C112583CR; A151812.
• Citation: 331 P.3d 1040,264 Or.App. 158
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Joel Ricardo ACUNA, Defendant–Appellant.
• Court: Oregon Court of Appeals

264 Or.App. 158
331 P.3d 1040

STATE of Oregon, Plaintiff–Respondent,
v.
Joel Ricardo ACUNA, Defendant–Appellant.

C112583CR; A151812.

Court of Appeals of Oregon.

Argued and Submitted Feb. 19, 2014.
Decided July 2, 2014.

[331 P.3d 1042]

Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Pamela J. Walsh, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.^*

GARRETT, J.

Defendant was convicted of one count of unlawful delivery of marijuana for consideration, ORS 475.860(2). On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence. We affirm.

The events at issue occurred on November 28, 2011. At 4:41 p.m., Hillsboro police received a telephone call from an anonymous informant, who reported that four males in their late teens or early twenties were smoking marijuana while standing at the intersection of Southeast 16th Avenue and Southeast Oak Street. The informant described two vehicles that were associated with the young men: a white extended-cab Ford pickup truck and a beige sport utility vehicle.

At 5:10 p.m., approximately one-half hour after the informant's call, Officer Ploghoft

[331 P.3d 1043]

arrived at the intersection in a marked patrol vehicle. The vehicle's lights and sirens were not activated. Ploghoft saw two vehicles that matched the informant's description and three men, including defendant, standing on the sidewalk next to the vehicles, with a dog on a leash. Ploghoft approached the men on foot and greeted them from a distance of about five to eight feet. He explained that police had received a report of marijuana use at that location and asked the men if they had been using marijuana. Defendant and his companions denied smoking or possessing drugs.

Within the first minute of the conversation, Ploghoft noticed a strong smell of what he believed was unburned marijuana in the immediate vicinity. Ploghoft could not pinpoint the odor's source. He asked the men about the odor and again asked whether they had marijuana, which they continued to deny.

At 5:12 p.m., Ploghoft radioed for a backup officer. While waiting for assistance, Ploghoft explained to the men that he “appreciate[d] honesty and cooperation from them” and that “simple possession of less than an ounce of marijuana * * * is simply a ticket or violation.” Defendant said that he “needed to go, because his girl was calling him.” Ploghoft did not respond, and defendant did not try to leave.¹

Shortly thereafter, Officer Peterson arrived on the scene. Peterson, according to Ploghoft's testimony, was “more aggressive” than Ploghoft. Ploghoft asked defendant for consent to a patdown search. In reply, defendant handed Ploghoft a glass pipe from his pocket. Ploghoft observed that the pipe contained burnt marijuana residue and smelled of burnt marijuana. Defendant then consented to the patdown search. During the search, Ploghoft felt a baggie “with something soft in it” in defendant's pants pocket. He asked defendant if he had “weed” in his pocket, and defendant replied that he did. Ploghoft then asked for, and received, consent to remove the baggie. It contained marijuana.

While Ploghoft was searching defendant, Peterson approached the truck and smelled marijuana coming from a backpack, which defendant eventually admitted was his. Ploghoft asked for consent to search defendant's backpack. When defendant showed reluctance to permit the search, Ploghoft explained to defendant that he had “the option to give [the officers] permission to search his backpack” and that “another option would be for [the officers] to seize the backpack and either write or apply for a search warrant.” Defendant gave consent to search the backpack, and a third officer stood with defendant and his companions during the search of the backpack. In the backpack, police found a large glass jar containing marijuana that Ploghoft believed to be “a quantity greater than just user amount,” approximately 20 plastic baggies with marijuana residue in them, a digital scale with what appeared to be marijuana residue, and a small, wooden baseball bat.

Defendant was placed in handcuffs at 5:32 p.m., about 22 minutes after the encounter began. At 5:52 p.m., Ploghoft read defendant his Miranda rights. Ploghoft then transported defendant to the Washington County Jail; while in transit, Ploghoft requested consent to search defendant's cell phone, which defendant refused. After defendant was in custody at the jail and while defendant's phone was being logged into evidence, Peterson viewed some of the text messages on the phone. Ploghoft separately applied for and received a search warrant to view messages on the phone, but he did not use any information obtained from Peterson's review of the phone in his warrant application.

Defendant was charged with one count of unlawful delivery of marijuana for consideration, ORS 475.860(2). Before trial, defendant filed a motion to suppress evidence, arguing that he was unlawfully stopped and unlawfully searched; that police violated his rights against self-incrimination; and that the warrant to examine his cell phone was based on information derived from an illegal search. After a hearing, the trial court issued a letter opinion denying defendant's

[331 P.3d 1044]

motion. The trial court ruled that Ploghoft had “reasonable ground[s]” to justify the stop, that defendant consented to the patdown search, that defendant's rights against self-incrimination were not violated, and that the warrant issued regarding the cell phone was valid. Reserving his right to appeal the trial court's ruling, defendant waived his right to a jury trial and tried his case to the court, which convicted him and sentenced him to 18 months' probation.

DISCUSSION

On appeal, defendant assigns error to the trial court's denial of the motion to suppress. Relying on both the state and federal constitutions, defendant argues: (1) that he was illegally stopped because Ploghoft lacked probable cause or reasonable suspicion to believe that defendant possessed marijuana; (2) that the searches of defendant's person and backpack were illegal because they were the result of the illegal stop; (3) that his right against self-incrimination was violated when he was asked if he owned a backpack that smelled of marijuana; and (4) that the search warrant obtained to search his cell phone was invalid because it was based on unlawfully obtained information, specifically, the drugs and other related items found in defendant's backpack.²

We review a court's denial of a motion to suppress for legal error. State v. Tovar, 256 Or.App. 1, 2, 299 P.3d 580, rev. den.,353 Or. 868, 306 P.3d 640 (2013). We are bound by the trial court's findings of fact so long as there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

We begin with defendant's argument that he was unlawfully stopped. This requires us to determine whether a stop occurred and, if so, when, and whether it was lawful under the circumstances at the time. The trial court concluded that defendant was stopped, but did not articulate precisely when, in its view, the stop occurred. On appeal, the parties agree that a stop occurred, but differ as to when it occurred. Defendant contends that he was stopped when Ploghoft initiated the encounter by asking him about drug possession, or, at the latest, when Ploghoft asked defendant for consent to the patdown search. The state's view is that defendant was not stopped until Ploghoft actually removed the baggie of marijuana from defendant's pocket.

Article I, section 9, provides in part: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure[.]” As the Supreme Court made clear in State v. Ashbaugh, 349 Or. 297, 308, 244 P.3d 360 (2010), some encounters between police and citizens fall in the category of “ ‘mere conversation,’ that is, noncoercive encounters that are not ‘seizures' and, thus, require no justification under Article I, section 9.” See also State v. Backstrand, 354 Or. 392, 399, 313 P.3d 1084 (2013), State v. Fair, 353 Or. 588, 593–94, 302 P.3d 417 (2013). Thus, “law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful.” State v. Anderson, 354 Or. 440, 450, 313 P.3d 1113 (2013) (citing State v. Holmes, 311 Or. 400, 410, 813 P.2d 28 (1991)).

In contrast, a “stop” is a type of seizure “that involves a temporary restraint on a person's liberty and that violates Article I, section 9, unless justified by * * * reasonable suspicion that the person has been involved in criminal activity.” Ashbaugh, 349 Or. at 308–09, 244 P.3d 360. A stop occurs, “(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

[331 P.3d 1045]

reasonable under the circumstances.” Ashbaugh, 349 Or. at 303, 244 P.3d 360 (internal quotation marks omitted). The Supreme Court explained in Backstrand that the distinction between a seizure and a “mere conversation” is “the imposition, either by physical force or through some ‘show of authority,’ of some restraint on the individual's liberty.” 354 Or. at 399, 313 P.3d 1084 (citing Ashbaugh, 349 Or. at 309, 244 P.3d 360)...