State v. Bray

• Decision Date: 05 October 2016
• Docket Number: A158753
• Citation: 380 P.3d 1245,281 Or.App. 435
• Parties: State of Oregon, Plaintiff–Respondent, v. Timothy Mark Bray, Defendant–Appellant.
• Court: Oregon Court of Appeals

281 Or.App. 435

380 P.3d 1245

State of Oregon, Plaintiff–Respondent,

v.Timothy Mark Bray, Defendant–Appellant.

A158753

Court of Appeals of Oregon.

Submitted August 30, 2016.

October 5, 2016

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and DeVore, Judge, and Haselton, Senior Judge.

HASELTON, S.J.

Defendant appeals a judgment of conviction of one count of unlawful possession of methamphetamine, ORS 475.894, and one count of felon in possession of a restricted weapon (FIP), ORS 166.270, entered after a stipulated facts trial. He assigns error to the denial of a motion to suppress evidence of both of those offenses discovered following a traffic stop. Specifically, defendant contends, inter alia , that the predicate traffic stop was extended by a request to check his criminal history and that that extension was unlawful as neither occurring during an “unavoidable lull” in the traffic stop nor justified by reasonable suspicion of criminal conduct. We agree with defendant's contention, and the state does not claim attenuation. Accordingly, we reverse and remand.

In reviewing the denial of a motion to suppress, we are “bound by the trial court's findings of historical fact that are supported by evidence in the record.” State v. Holdorf , 355 Or. 812, 814, 333 P.3d 982 (2014). Consistently with that standard, the facts material to our review are as follows: At about 10:25 p.m. on the evening of March 25, 2014, Oregon State Police Sergeant Barden was on patrol. As he approached a trailer park where police had investigated “recent problems with methamphetamine distribution,” Barden saw defendant's pickup truck stopped in the opposite lane of the street, directly in front of the entrance to the trailer park.¹ After passing defendant's truck, Barden turned his patrol car around so that he could speak with defendant, but, by the time he could do so, defendant had driven away, and Barden had to drive at “incredibly high speeds” to catch up. As Barden drew close, he saw defendant commit a traffic infraction; consequently Barden initiated a traffic stop.²

When Barden approached and spoke with defendant, defendant was “extremely nervous,” with his hands “visibly shaking, * * * almost to the point it was tremors.”

However, defendant's speech was not “really fast” or “odd” in any other way.³ To Barden, defendant's affect was “a sign of stimulant use, controlled substance.” During their initial interaction, defendant also kept “frantically looking around” with a “panicked look on his face, as if [he was] concerned that there's something that I'm going to see,” “looking around somewhere around his seat or down at his waistband.” That conduct caused Barden to be concerned about the presence of weapons, and, when Barden looked at the same area where defendant was looking, he saw, partially hidden near the front of the truck's center console, a closed folding tactical knife, which, from his training, Barden believed to open centrifugally. Possession of such a knife, which Barden acknowledged as being of “extremely common design,” is lawful, except by a felon. ORS 166.270(2).⁴ On cross-examination during the suppression hearing, Barden acknowledged that, before contacting dispatch, he had no reason to believe that defendant was a convicted felon.

After obtaining defendant's driver's license, vehicle registration, and proof of insurance, Barden returned to his patrol car and contacted dispatch. In addition to requesting verification of defendant's driver's license and a check for outstanding warrants, which was his standard practice, Barden also asked dispatch to run a check for defendant's criminal history, if any, including, specifically, with respect to possession or distribution of controlled substances. Barden asked for a criminal history check because, as he explained during the suppression hearing:

“That was based on where he came from [viz. , the location in front of the trailer park]. The time of night. The fact that he was actually stopped in front of the trailer park. The fact that * * * I had to go at incredibly high speeds to catch up with him. And the fact that he was extremely nervous. His very fast pace[d] speech and that he was frantically looking around * * * where he was seated.”⁵

Before receiving a response from dispatch, Barden returned to defendant and asked him why he had stopped on the road in front of the trailer park. Defendant's nervousness and trembling increased, and, although he answered Barden's questions, some aspects of his responses were conflicting.

Dispatch subsequently informed Barden that defendant's driver's license was valid and that he had no outstanding warrants, but that defendant had “a positive criminal history, including for felony controlled substances.”⁶ In the light of that information, and given the knife in defendant's truck, Barden believed that defendant had violated ORS 166.270(2). Barden did not, however, pursue inquiries about the knife or arrest defendant at that point. Instead, he asked defendant questions about methamphetamine use—and defendant, while acknowledging that he had used methamphetamine in the distant past, denied that he had done so in recent years. Barden also sought, and defendant refused, consent to search the truck.

After defendant refused consent to search, Barden, on the basis of his belief that defendant had violated ORS 166.270(2), directed him to get out of the truck. Defendant did so and consented to a patdown for weapons. However, when Barden reached defendant's left-side pants pocket, defendant turned his body away. Barden then told defendant that he believed that there was methamphetamine in defendant's pocket, and defendant “tensed up his entire body” and said, “Um.” Barden immediately handcuffed defendant and advised him of his Miranda rights. In response to Barden's subsequent questions, defendant acknowledged that he had methamphetamine in his pocket, and Barden removed two containers from defendant's pocket, at least one of which contained methamphetamine. Defendant also told Barden that his “knife collection” was in the truck.

Defendant was, consequently, charged with one count of FIP, ORS 166.270(2), and one count of unlawful possession of methamphetamine, ORS 475.894. Defendant moved to suppress evidence, including the folding knife, the methamphetamine, and his inculpatory statements, arguing that that evidence had been obtained as a result of an unlawful extension of the traffic stop. Specifically, invoking State v. Rodgers/Kirkeby , 347 Or. 610, 227 P.3d 695 (2010), defendant contended that (1) Barden had extended the traffic stop by requesting the criminal history check and also by asking defendant about his methamphetamine use; (2) neither of those extensions was lawful as having occurred during an “unavoidable lull” or as justified by reasonable suspicion of criminal conduct; and (3) either of those unlawful extensions compelled suppression.

The state's sole response, predicated on Holdorf, was that both the request for the criminal history check and the inquiries about defendant's methamphetamine use were independently and sufficiently justified by reasonable suspicion. Significantly for our analysis that follows, the state did not advance any of three other, alternative contentions before the trial court.

First , the state did not contend that the request to check defendant's criminal history—in addition to the check to verify defendant's identification and for outstanding warrants—was insufficient to effect a cognizable temporal extension of the traffic stop. To the contrary, at the suppression hearing, the prosecutor explicitly disavowed any such contention. Specifically, when the trial court suggested that it did not “see how it's an extension of the stop to ask if somebody's got a felony conviction,” the prosecutor responded, “I'm not making that argument, Your Honor.” And, when the court asked why the state was not so arguing, the prosecutor answered, “because it takes * * * three seconds to ask the question [to check for criminal history]. It also causes dispatch to look for the information.”⁷

Second , the state did not assert that, in the totality of the circumstances, the request to check defendant's criminal history, if any, was independently justified, as a reasonable officer safety measure. See generally State v. Jimenez , 357 Or. 417, 426–30, 353 P.3d 1227 (2015) (addressing when officer may lawfully inquire about presence of weapons during course of traffic stop); cf. State v. Miller , 277 Or.App. 147, 370 P.3d 882 (2016) (where officer lawfully learned during course of traffic stop that the defendant had a valid concealed handgun permit, officer's subsequent inquiry of the defendant as to whether he had any firearms with him was not justified, under totality of circumstances, as a permissible officer safety measure and, thus, unlawfully extended traffic stop).

Third , and finally, the state did not contend that, regardless of any purported unlawful extension, the motion to suppress should nevertheless be denied because the discovery of the disputed evidence was sufficiently attenuated from any such extension. See, e.g. , State v. Bailey , 356 Or. 486, 508, 338 P.3d 702 (2014) (noting that, under the Fourth Amendment, the state bears the “burden to establish attenuation” and identifying factors pertaining to assessment of attenuation); State v. Jones , 275 Or.App. 771, 775, 365 P.3d 679 (2015)(“[W]hether we are evaluating attenuation under Article I, section 9, or the Fourth Amendment, we consider essentially the same factors to determine whether the state has met its burden to demonstrate attenuation.”).

The trial court...