State v. Barber

• Decision Date: 22 June 2016
• Docket Number: A154582
• Citation: 379 P.3d 651,279 Or.App. 84
• Parties: State of Oregon, Plaintiff–Respondent, v. Jacob Nathaniel Barber, Defendant–Appellant.
• Court: Oregon Court of Appeals

279 Or.App. 84

379 P.3d 651

State of Oregon, Plaintiff–Respondent,

v.Jacob Nathaniel Barber, Defendant–Appellant.

A154582

Court of Appeals of Oregon.

Argued and submitted January 29, 2015.

June 22, 2016

Jason E. Thompson, Salem, argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson LLP.

Jona J. Maukonen, 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 Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

DUNCAN, P.J.

Defendant appeals a judgment convicting him of one count of possession of heroin, arguing that the trial court erred in denying his motion to suppress evidence discovered during an extension of a traffic stop.¹ The trial court determined that the evidence against defendant was discovered after a police officer lawfully stopped defendant for a traffic violation and extended the stop to investigate whether he possessed drugs. Defendant argues that the extension of the stop violated Article I, section 9, of the Oregon Constitution because it was not supported by reasonable suspicion that defendant possessed drugs and that the evidence should have been suppressed because the officer exploited the unlawful detention to gain defendant's consent to search the car. Defendant also argues, in the alternative, that the evidence should have been suppressed because his consent to the search was involuntary. We conclude that the extension of the stop was supported by reasonable suspicion that defendant possessed drugs and that defendant voluntarily consented to the search of the car. Accordingly, we affirm.

We state the facts consistently with the trial court's explicit and implicit findings. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). In August 2012, Salem Police detectives in the Street Crimes Unit were conducting surveillance of the apartment of a suspected heroin dealer. After a detective, Bennett, observed suspicious behavior, described in more detail below, by two men in a Subaru, he asked another detective, Miller, to follow the car to further observe the men and eventually make a stop. Miller followed the car briefly and then called a patrol officer, Morrison, and explained that the detectives had been following the Subaru as a result of the occupants' “possible drug activity” related to the apartment that the detectives were watching. Miller told Morrison that a detective had been watching an apartment as part of a drug investigation when he saw two men in a Subaru in the parking lot of the apartment complex. It was Morrison's understanding that the detective saw one of the men go up to the apartment under surveillance and then quickly come back to the car, where he and the other man “engaged in possible drug activity” for a short time before leaving in the car.² Miller asked Morrison to locate and follow the car and “develop probable cause to stop the car and identify the occupants.”

A few minutes later, Morrison located the Subaru on the road he was on, heading in the opposite direction. He did a U-turn to come up behind it, and defendant, who was driving, quickly turned the car into the parking lot of a motel without signaling his turn. In Morrison's experience, that particular motel was a frequent site of drug activity. Having observed defendant's failure to signal, a traffic violation, ORS 811.335(1)(b), (3), Morrison turned on the overhead lights on his marked patrol car in order to stop defendant for the violation.

Defendant did not stop his car immediately. Instead, he drove through the motel parking lot for approximately 35 yards at a very slow speed, which indicated to Morrison that defendant knew that Morrison was there. Defendant passed numerous open parking places and a fire lane where there was room to stop safely without impeding traffic. Instead, defendant continued to the back of the parking area, turned right, and parked in a parking stall at the very back of the complex. While defendant drove through the parking lot, he looked at his passenger, who was reaching down underneath the seat. That behavior made Morrison concerned, first, that the passenger might be reaching for weapons and, next, that defendant and the passenger were trying to conceal something—perhaps drugs—in the car.

Morrison parked his car behind defendant's, blocking him in, then went up to the car and identified himself.

He told defendant that he had stopped him for not signaling his turn into the parking lot. Defendant responded that he had turned suddenly because he believed the driveway he had turned into was the only entrance to the motel. Morrison asked why defendant was at the motel, and defendant responded that he was staying at the motel for the night. Then Morrison asked defendant “if he had any weapons in the car or drugs or anything of that nature inside the car.” Defendant responded, “I don't think I have any drugs.” Morrison responded, “Hey. That doesn't sound very convincing. Do you or do you not have drugs in the car?” The record does not reveal defendant's response to that question.

During the conversation that followed, Morrison asked defendant if he and the passenger were from the area. They responded that they were, and Morrison explained to defendant that, in his experience, a lot of people go to that motel to use drugs or engage in illegal activities. At some point, Morrison also obtained defendant's license, registration, and insurance information.

Morrison asked defendant for consent to a search of the car for “drugs, weapons, anything of that nature.” Defendant asked, “Hey. What happens if I say no; if I say no to consent to the vehicle [search]?” Morrison responded that “that was well within his rights.” Defendant asked again what would happen if he did not consent. Morrison explained, “I could do a number of things. I could apply for a search warrant, I could call for a drug dog, or I could just drive away.” Defendant asked what would happen if Morrison found drugs, and Morrison explained, “I'd investigate that and proceed accordingly.”

Defendant was hesitant, so Morrison gave him a card advising him of his rights. He explained, “I'll just have you read the card and if you agree with it then you can give consent. If not then we can move on.” After reading the card, defendant told Morrison that he did not want to consent to a search. Then he asked what Morrison was going to do next. Morrison told him, “I was going to go fill out a traffic warning complaint for the turn signal and see if a drug dog was working at the time.” Defendant asked what the dog was going to do, and Morrison explained that the dog would walk around the car, and “if he alerted to the odor of a drug then we would proceed forward with that.”

Morrison left to go back to his car. As he was going to his car, defendant stuck his arm out and hailed Morrison, who went back toward defendant. Defendant asked to read the consent-to-search card again and then signed the card, giving consent.

At that point, defendant and the passenger got out of the car, and the passenger left the scene. Morrison called Miller, who came to help search the car. During the search, Morrison and Miller found the disputed physical evidence, and, when questioned about the evidence, defendant made incriminating statements.

Defendant was arrested and charged with one count of possession of heroin and one count of distribution of heroin. He moved to suppress the evidence discovered during the search and his statements, arguing that Morrison unlawfully extended the traffic stop without reasonable suspicion that defendant possessed drugs and, alternatively, that defendant's consent to the search was involuntary. The trial court denied the motion, concluding that Morrison had reasonable suspicion to detain defendant while he conducted a drug investigation and that defendant's consent was voluntary. After a bench trial, the court convicted defendant of possession of heroin and acquitted him of distribution. This appeal followed.

On appeal, defendant renews his contention that Morrison unlawfully extended the traffic stop without reasonable suspicion of drug possession when he asked defendant whether he had any drugs or weapons in the car.³ Defendant argues that Morrison exploited that unlawful stop to obtain defendant's consent to the search of his car, and, accordingly, that the evidence obtained as a result should have been suppressed. He also renews his alternative argument that his consent was involuntary.

Article I, section 9, protects individuals against unreasonable searches and seizures.⁴ In order to be reasonable, a warrantless search or seizure must fall within “one of the few specifically established and well-delineated exceptions to the warrant requirement.” State v. Davis , 295 Or. 227, 237, 666 P.2d 802 (1983) (internal quotation marks omitted). It is the state's burden to prove that an exception to the warrant requirement justified a warrantless search or seizure. Id. If the state does not carry that burden, the court must exclude evidence derived from the search or seizure. State v. Hall , 339 Or. 7, 21, 115 P.3d 908 (2005) ; State v. Unger , 356 Or. 59, 93, 333 P.3d 1009 (2014).

Valid consent provides an exception to the warrant requirement. Hall , 339 Or. at 20, 115 P.3d 908. Consent is invalid if it is involuntary or if it is derived from a violation of the defendant's rights under Article I, section 9. Id. at 20–21, 115 P.3d 908. Evidence that is the product of invalid consent is subject to suppression because “the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if ‘the government's officers had stayed within the law.’ ” Id. at 24, 115 P.3d 908 (quoting Davis , 295 Or. at 234, 666 P.2d 802 ). In this case, to determine whether the state carried its burden of proving that defendant's consent to the search of his car was valid, we first consider defe...