State v. Aguilar

• Decision Date: 19 January 1994
• Citation: 126 Or.App. 22,867 P.2d 520
• Parties: STATE of Oregon, Respondent, v. Jenaro AGUILAR, Appellant. C88-06-33882; CA A70129.
• Court: Oregon Court of Appeals

Page 520

867 P.2d 520

126 Or.App. 22

STATE of Oregon, Respondent, v. Jenaro AGUILAR, Appellant.

C88-06-33882; CA A70129.

Court of Appeals of Oregon.

Argued and Submitted May 4, 1992.

Decided Jan. 19, 1994.

Liza Jane Langford, argued the cause and filed the brief for appellant.

Mary H. Williams, Asst. Atty. Gen., argued the case for respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before RICHARDSON, C.J., and DEITS, J., and DURHAM, J. Pro Tem.

DEITS, Judge.

Defendant appeals his conviction for possession and distribution of a controlled substance. ORS 475.992. He argues that the trial court erred in denying his motion to suppress. We affirm.

On June 4, 1988, Officer Kelley saw defendant's car parked in front of what he knew to be an operating drug house. He also saw a person whom he believed was the operator of the drug house leave the area of defendant's car and run up the steps of the house. Kelley believed that person was the operator of the drug house, because he matched the general description of the drug house operator. Five weeks earlier, Kelley had seen a person of similar appearance run up to the house as another car pulled away. The driver of that car admitted to Kelley that he had sold cocaine and heroin to the drug house operator. Kelley followed defendant's car as it pulled away from the curb. He testified that defendant seemed to be in a hurry and that he twice failed to signal before making a turn. Kelley stopped defendant for a traffic violation. He asked him for his driver license and a bill of sale. Defendant provided both. Kelley asked defendant: "Do you have any drugs on you or in your vehicle?" Defendant responded: "I don't think so." Kelley then asked defendant for consent to search. The trial court found

"that Officer Kelley asked the Defendant if he would allow himself and the vehicle to be searched; the court finds that * * * Defendant's response was yes, and that the Defendant then stepped out of the vehicle without any request by the officer."

Kelley then requested a cover car and, while he waited for it to arrive, he searched defendant and found money and a pager. After the other officers arrived, he searched the car and found two baggies of heroin. He then arrested defendant and found another bag of heroin and some marijuana on defendant's person.

Defendant assigns as error the trial court's denial of his motion to suppress evidence discovered in the search of his car and person. He argues that the officer's actions exceeded the permissible scope of a traffic stop and that the officer did not have reasonable suspicion to stop him for the drug offense. He also contends that his consent to the search was not voluntary.

It is unnecessary to decide whether Kelley had a reasonable suspicion to stop defendant for the drug offenses, because we conclude that his questioning of defendant during the traffic stop concerning the drug offenses and his request for consent were permissible. In State v. Bonham, 120 Or.App. 371, 852 P.2d 905, rev. den. 317 Or. 584, 859 P.2d 540 (1993), after the completion of a traffic stop, the officer questioned defendant concerning drug activities and asked for consent to search. We held that that was permissible. This case presents a different question, however, because here the questioning and request for consent occurred before the completion of the traffic stop.

As we discussed in Bonham, we have generally held that there is no prerequisite of reasonable suspicion or probable cause before an officer may ask a person for consent to search. In Bonham, we quoted State v. Auer, 90 Or.App. 459, 464, 752 P.2d 1250 (1988), in which we said:

"Neither the Supreme Court nor this court has ever held, or even suggested, that reasonable suspicion is a prerequisite to asking for consent to search."

We further explained in Bonham:

"We recently upheld a request to search when an officer walked up to a citizen and, without probable cause to believe that a crime had been committed or even a reasonable suspicion, asked for permission to search. We assessed the totality of the circumstances and held that the consent was voluntary. State ex rel Juv. Dept. v. Fikes, 116 Or App 618, 842 P2d 807 (1992). The pertinent inquiry there was not whether the officer had authority to ask the question but whether, considering the totality of the circumstances, the defendant's consent was given of his own free will or was the product of coercion, express or implied. We have held that, even in circumstances where a request for consent to search followed illegal police conduct, consent is not automatically invalid. Rather, the burden on the state to prove voluntariness focuses on whether the consent was an exploitation of the prior illegality. State v. Kennedy, [290 Or. 493, 624 P.2d 99 (1981) ]; see State v. Mercado, [105 Or.App. 582, 805 P.2d 744, rev. den. 311 Or. 482, 813 P.2d 1064 (1991) ]. The fact that a request for consent to search takes place after a traffic stop is a factor that should be considered in evaluating whether, under the totality of the circumstances, the consent was voluntarily given or was the product of coercion. However, consent should not be invalidated solely because it follows a traffic stop." 120 Or.App. at 375-76, 852 P.2d 905.

We conclude that the same rationale should apply here. The fact that a request for consent occurs during the course of a traffic stop is a factor to consider in evaluating the voluntariness of the consent, but it does not automatically invalidate the consent. Contrary to the dissent's assertions, this conclusion is not inconsistent with the Supreme Court's decision in State v. Porter, 312 Or. 112, 817 P.2d 1306 (1991). In Porter, the officer lawfully stopped the defendant's car and arrested him pursuant to an arrest warrant. When the defendant stepped out of his car, the officer saw an open can of beer behind the driver's seat. While defendant was in the back seat of the patrol car, the officer searched the car for additional open containers and, during that search, found drugs. On appeal, defendant argued that the search was unlawful. The state argued that the officer was entitled to search for additional open containers under ORS 810.410(3)(b), which permits an "investigation reasonably related to [a] traffic infraction." 312 Or. at 115, 817 P.2d 1306. The Supreme Court determined that that statute did not authorize the warrantless search of defendant's car, because the search was not reasonably related to the traffic infraction: "When the officer found and seized from defendant's car the open can containing beer, he had all the evidence he needed to cite defendant." 312 Or. at 120, 817 P.2d 1306. The state did not argue that there was any other authority for the warrantless search of the defendant's car. The court held that the search was unlawful because it was not authorized by the statute, and no other basis independent of the statute had been argued to the court.

The dissent takes the position that the Supreme Court's reading of ORS 810.410(3)(b) ¹ in State v. Porter, limits the authority of an officer during a traffic stop to ask a person for consent to search. It relies on the statement in Porter that ORS 810.410(3)(b) "proscribes any further action by the police, including a search, unless it has some basis other than the traffic infraction." 312 Or. at 120, 817 P.2d 1306. However, it is clear from the court's discussion in Porter that, in using the terms "any further action by the police," the court was referring to other police action for which authority to act is required. All of the examples that the court used in discussing the limitations imposed by ORS 810.410(3)(b) concerned police action such as stops or searches where specific authority is needed. ² The specific question that the court was presented with in Porter was whether ORS 810.410(3)(b) gives an officer authority to conduct a warrantless search unrelated to the traffic stop. The Supreme Court held that it does not. This case presents a different issue, because it concerns police action that we have held does not need specific authority.

We addressed the same argument that the dissent is making here in State v. Mesa, 110 Or.App. 261, 265, 822 P.2d 143 (1991), rev. den. 313 Or. 211, 830 P.2d 596 (1992), in which we held:

"No justification is necessary for an officer to ask for consent. Consent may be requested following illegal police conduct, State v. Williamson, 307 Or 621, 772 P2d 404 (1989), or of a citizen on the street. Neither [ORS 810.410(3)(b) ] nor Porter imposes such a limitation on officers conducting stops for traffic infractions, and it would make no sense to do so." ³

A conclusion that an officer may not ask for consent to search during the course of a traffic stop would create an anomalous result. A police officer would be able to request consent to search under any circumstance other than during a traffic stop. An officer could walk up to a person on the street and ask for consent to search. See State ex rel Juv. Dept. v. Fikes, supra. Further, following illegal police conduct, an officer could request consent. The illegality would not automatically invalidate the consent; its validity would depend on whether, considering the particular circumstances, it was voluntarily given. See State v. Meyer, 120 Or.App. 319, 852 P.2d 879 (1993). The Supreme Court did not hold in Porter that an officer could not request consent to search during the course of a traffic stop, nor is that a reasonable reading of the statute.

The critical inquiry, then, is not the officer's authority to ask, but whether the consent, if given, was the result of a person's free will or was the product of coercion, express or implied. The fact that the request occurred during a traffic stop is a relevant consideration in making that decision, but it does not end the inquiry. Here, the trial court...