State v. Aguilar
Jurisdiction | Oregon |
Parties | STATE of Oregon, Respondent, v. Jenaro AGUILAR, Appellant. ; CA A70129. |
Citation | 139 Or.App. 175,912 P.2d 379 |
Docket Number | Nos. C88-06-33882,s. C88-06-33882 |
Court | Oregon Court of Appeals |
Decision Date | 21 February 1996 |
Liza Jane Langford argued the cause and filed the brief for appellant.
Mary H. Williams, Assistant Attorney General, argued the cause for respondent. With her on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General.
Defendant appealed from his convictions for possession and distribution of a controlled substance, ORS 475.992, arguing that the trial court erred in denying his motion to suppress. We affirmed the trial court's denial of the motion, 126 Or.App. 22, 867 P.2d 520 (1994). The Supreme Court has remanded for reconsideration, State v. Aguilar, 321 Or. 378, 899 P.2d 690 (1995), in the light of State v. Dominguez-Martinez, 321 Or. 206, 895 P.2d 306 (1995). We reverse and remand.
On June 4, 1988, Officer Kelley saw defendant get into a car parked in front of what he believed to be an operating drug house on Roselawn Street. As the car pulled away from the curb, Kelley observed a black man, whom he believed to be Stephens, the reputed operator of the drug house, jog from the area where the car had been parked, up the stairs, and into the suspected drug house. He did not see any contact between the two men.
About five weeks earlier, on April 29, 1988, Kelley and Officer Weatheroy had witnessed what they believed was a drug transaction in front of the same house. While in the course of citing and releasing a person for shoplifting at a location near the suspected drug house, Kelley testified that he saw a car pull away from the curb and a person, whom he believed to be Stephens, run into the house from the car. Weatheroy testified that he saw that person get into the car for about a minute and then go back into the house after the car pulled away from the curb. Weatheroy said that based on his observations, it was his belief that a drug transaction had occurred in the car. He also said that he had shared all of his observations at that time with Kelley. Kelley and Weatheroy then followed the car that had pulled away from the curb and stopped it for a traffic violation. They found controlled substances in the car, and the driver of the car admitted to Weatheroy that he had sold cocaine and heroin to Stephens at the house on Roselawn.
After watching the events of June 4, Kelley followed defendant's car. Defendant appeared to be in a hurry and twice failed to signal before making turns. Kelley then stopped defendant. He testified that he stopped defendant for a traffic violation, as well as to investigate his suspicions that a drug transaction had occurred at the Roselawn house. Kelley asked defendant for his driver's license and a bill of sale for the car. Defendant provided both. Kelley then asked defendant: "Do you have any drugs on you or in your vehicle?" Defendant responded: "I don't think so." He then asked for and obtained defendant's consent to search his person and the vehicle. 1 After obtaining consent, Kelley requested a cover car and, while he waited for it to arrive, he searched defendant and found money and a pager. When the other officers arrived, Kelley 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 moved to suppress all of the evidence gained pursuant to the searches of his person and the vehicle. The trial court denied the motion, making the following findings:
Defendant argues that the trial court's denial of his motion to suppress was error, because Kelley exceeded the permissible scope of a traffic stop when he asked defendant about drugs and for consent to search for drugs. Defendant also argues that Kelley lacked a reasonable suspicion to believe that defendant was involved in a drug transaction that would justify stopping defendant and that his consent to search was involuntary.
In our original opinion in this case, State v. Aguilar, 126 Or.App. 22, 28, 867 P.2d 520 (1994), we concluded that Kelley's questioning of defendant about drugs and requesting consent to a search for drugs was permissible even though the inquiry occurred during a stop for a traffic infraction. We ultimately concluded that defendant's consent was voluntary, and that, therefore, the trial court properly denied defendant's motion to suppress. Id. Consequently, we considered it unnecessary to determine whether Kelley had a reasonable suspicion to stop defendant for drug offenses.
Subsequently, in State v. Dominguez-Martinez, the Supreme Court held that ORS 810.410 "defines the parameters of police authority to detain and investigate during a traffic stop." 321 Or. at 212, 895 P.2d 306. The court explained:
Id. at 212, 895 P.2d 306 (emphasis supplied; footnote omitted).
On reconsideration, in the light of Dominguez-Martinez, we conclude that Kelley lacked authority, based solely on his belief that defendant had committed a traffic infraction, to ask defendant about drugs or request his consent to a search for drugs. 2 However, under Dominguez-Martinez, if Kelley had "some basis" to believe that defendant had committed a drug-related crime, it would have been permissible for him to broaden the scope of the investigation to include his actions here. The state contends that, based on his observations of the activities at the Roselawn house, Kelley had a reasonable suspicion that defendant had committed a drug-related crime, thereby justifying his inquiry.
As a preliminary matter, we conclude that reasonable suspicion that a defendant has committed illegal acts, other than a traffic infraction, is the proper standard for permitting an officer to broaden the scope of an investigation during the course of a traffic stop. We recognize that there is dictum in the Supreme Court's opinion in Dominguez-Martinez that might be read to suggest that the proper standard to justify the expansion of the investigation is probable cause. The court stated:
Dominguez-Martinez, 321 Or at 213-14, n 7 [895 P.2d 306] (emphasis supplied); but see id. at 213, n 6 (the defendant had committed a crime) that there was no evidence that the officer had either probable cause or reasonable suspicion to believe that .
We do not believe, however, that the appropriate standard for taking action in...
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