State v. Bailey

• Decision Date: 14 August 2013
• Docket Number: 101033810,A148109.
• Citation: 258 Or.App. 18,308 P.3d 368
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Clark Allen BAILEY, aka Clarke Allen Bailey, Defendant–Appellant.
• Court: Oregon Court of Appeals

258 Or.App. 18
308 P.3d 368

STATE of Oregon, Plaintiff–Respondent,
v.
Clark Allen BAILEY, aka Clarke Allen Bailey, Defendant–Appellant.

101033810; A148109.

Court of Appeals of Oregon.

Argued and Submitted April 26, 2013.
Decided Aug. 14, 2013.

[308 P.3d 369]

Jonah Morning star, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

[308 P.3d 370]

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and DE MUNIZ, Senior Judge.

ARMSTRONG, P.J.

[258 Or.App. 19]Defendant appeals his conviction for delivery of cocaine, ORS 475.880, possession of cocaine, ORS 475.884, and tampering with physical evidence, ORS 162.295, and assigns error to the trial court's denial of his suppression motion. He contends that the police violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution by unlawfully seizing him during a traffic stop. He further contends that the trial court erred in denying his motion to suppress evidence that the police discovered when they conducted a search incident to arrest after they arrested defendant on a warrant, the existence of which they had discovered during their unlawful detention of him. We affirm.

We review the denial of a suppression motion for legal error. ORS 138.220. The trial court's findings of fact are binding on appeal if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). If the trial court did not make express findings of fact on a pertinent issue and there is evidence from which those facts could be decided more than one way, we presume that the court found the facts in a manner consistent with its ultimate conclusion. Id. Applying those standards, we recite the following facts from the trial court record.

In the fall of 2010, Portland was experiencing what one police officer termed a “tremendous amount of gang violence” in the city. As part of efforts to forestall more violence, police officers set up surveillance at a funeral that was attended by several gang members. After the funeral, officers followed one of the attendees to a house in Northeast Portland, at which several gang members were seen by officers to be congregating. The officers were concerned that the gang members at the house were contemplating violence or that they would be the target of violence perpetrated by members of other gangs. The police continued to monitor the house, with both unmarked patrol cars on the ground and a Portland Police Bureau aircraft overhead. An officer in the aircraft saw four people leave the house and enter what he thought was a “Dodge Charger, Magnum-type vehicle.” One [258 Or.App. 20]of the officers testified that those cars are often rental cars and that rental cars are often used for drive-by shootings and other crimes.

Concerned that the car's occupants were on their way to commit a crime, the officer in the aircraft followed the car as it left the house and asked a patrol unit to stop it. After the car's driver failed to signal for the legally required 100 feet before making a turn, ORS 811.375(1)(b), the police stopped the car. There were two backseat passengers in the car, one of whom was defendant. When the driver could not produce valid proof of insurance, an officer attempted to contact the driver's insurance company by phone to determine whether the driver was, in fact, insured.

Two backup officers arrived several minutes after the initiation of the stop. One of those officers, Stradley, recognized defendant to be a gang associate but could not remember his name. Various officers made repeated efforts to discern the identities of the two backseat passengers, but the passengers refused to identify themselves to the police. While the first officer on the scene was trying to contact the driver's insurance company, Stradley called Officer Burley to the scene to try to identify defendant and the other backseat passenger.

Thirty minutes after the initiation of the stop, and some time after the officers had concluded their investigation into the status of the driver's insurance, Burley arrived. Burley looked inside the vehicle and was immediately able to identify defendant by name. After Burley recognized defendant, Stradley ran defendant's name for warrants and discovered that there was an outstanding felony warrant for defendant's arrest. While in the process of arresting defendant on the warrant, Burley noticed that defendant was having trouble speaking. He asked defendant to open his mouth, where Burley saw a plastic bag containing a white substance under defendant's tongue. Subsequent testing

[308 P.3d 371]

revealed that the bag contained cocaine. The police also searched the backseat area where defendant had been sitting; that search revealed approximately $700 in cash, which the officers attributed to defendant.

[258 Or.App. 21]Defendant moved to suppress the evidence discovered after his arrest. Among other things, the trial court concluded that the police had unlawfully seized defendant during the traffic stop but that the evidence discovered after his arrest was nonetheless admissible because the discovery of the warrant served to cure any prior illegality. The court therefore denied defendant's suppression motion. Defendant was subsequently convicted after a stipulated facts trial, and this appeal followed.

On appeal, defendant contends that the police unlawfully seized him in violation of both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. He argues that the officers' discovery of his outstanding arrest warrant did not “attenuate” the discovery of the disputed evidence from the initial unlawful seizure and that suppression of the evidence was therefore required. In response, the state does not challenge defendant's contention that he was unlawfully seized; rather, the state argues that, under the principle announced in State v. Dempster, 248 Or. 404, 434 P.2d 746 (1967), and applied in State v. Snyder, 72 Or.App. 359, 695 P.2d 958,rev. den.,299 Or. 251, 701 P.2d 784 (1985), and subsequent cases, an arrest on an outstanding warrant purges evidence obtained as a result of the arrest from the taint of a prior unlawful seizure, such that suppression was not required. Because the state does not challenge the trial court's conclusion that the police unlawfully seized defendant, the only issue before us is whether the discovery of the valid arrest warrant purged the taint of the prior unlawful seizure of defendant. We first address defendant's arguments under the Oregon Constitution before turning to those he makes under the United States Constitution. See, e.g., State ex rel. Juv. Dept. v. S. P., 346 Or. 592, 606, 215 P.3d 847 (2009) (“As part of the ‘first things first’ methodology, we * * * consider state constitutional issues before we consider federal claims.”).

Oregon has long recognized that the discovery of an outstanding warrant for a defendant's arrest purges the taint of prior unlawful police conduct that might otherwise require suppression of evidence obtained as a result of an arrest on the warrant. The Oregon Supreme Court first [258 Or.App. 22]announced that principle in Dempster, 248 Or. at 408, 434 P.2d 746. There, officers suspected that the defendant had been involved in stealing money from parking meters. An officer recognized the defendant on the street one day and either asked or demanded that he get into the officer's police car. The defendant complied and was taken to the police station. Officers ran a records check on the defendant at the station, which revealed an outstanding bench warrant. The officers arrested the defendant on the warrant and discovered drugs and drug paraphernalia during a search incident to that arrest. Id. at 406, 434 P.2d 746.

The defendant contended in the Supreme Court that he had been unlawfully detained when he got into the police car and that the subsequently obtained evidence was tainted by his unlawful seizure and should have been suppressed. The court assumed without deciding that the defendant's initial detention was an unlawful seizure but affirmed the denial of the defendant's suppression motion because the subsequent “lawful arrest on the bench warrant purged the search incident thereto of the taint of any illegality in the detention of defendant prior to that time.” Id. at 408, 434 P.2d 746. In support of that conclusion, the court cited two United States Supreme Court cases, Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, 312 (1939), and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We considered a similar factual scenario in Snyder. There, the defendant was picked up by an officer and driven to the police station. At the station, the defendant volunteered that there might be a warrant in another county for his arrest, and a computer records check confirmed that that was indeed the case. The officer arrested the defendant.

[308 P.3d 372]

As officers were booking the defendant, they discovered a box of cigarettes that tended to connect him to a burglary; the defendant also made several inculpatory admissions.

On appeal, as pertinent here, the defendant reiterated arguments rejected by the trial court: that the police had unlawfully stopped him without reasonable suspicion and that the subsequently discovered evidence was “fruit of the poisonous tree” and should therefore have been suppressed. 72 Or.App. at 363, 695 P.2d 958. We concluded that we did not need [258 Or.App. 23]to address the former argument because we agreed with the trial court on the latter, relying exclusively on Dempster.

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