State v. Calvert, 040042CR; A127128.

CourtCourt of Appeals of Oregon
Citation164 P.3d 1169,214 Or. App. 227
Docket Number040042CR; A127128.
PartiesSTATE of Oregon, Plaintiff-Respondent, v. Heatherlyn M. CALVERT, Defendant-Appellant.
Decision Date25 July 2007
164 P.3d 1169
214 Or. App. 227
STATE of Oregon, Plaintiff-Respondent,
Heatherlyn M. CALVERT, Defendant-Appellant.
040042CR; A127128.
Court of Appeals of Oregon, En Banc.
Argued and Submitted January 31, 2007.
Resubmitted En Banc May 9, 2007.
Decided July 25, 2007.

[164 P.3d 1170]

Brandon G. Williams, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Anna M. Joyce, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.



214 Or. App. 229

Defendant appeals a judgment of conviction, following a trial on stipulated facts, for one count of possession of a controlled substance. Former ORS 475.992 (2003), renumbered as ORS 475.840 (2005). Defendant assigns error to the trial court's denial of her motion to suppress evidence obtained during a traffic stop. We conclude that, although defendant's claim of error is unpreserved, the error is apparent on the face of the record under State v. Hall, 339 Or. 7, 115 P.3d 908 (2005). We exercise our discretion to correct the error and reverse and remand.

We review the denial of a motion to suppress evidence for legal error, deferring to the trial court's findings of historical fact "if there is constitutionally sufficient evidence in the record to support those findings." State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In this case, our recitation of the facts is based on the trial court's written findings.

Defendant was driving on I-84 when she was pulled over by an Oregon State Police trooper. The trooper explained to defendant that she was stopped for driving too fast and asked defendant for her driver's license. Defendant could not locate her license, but gave the trooper her military identification and proof of vehicle registration. The trooper went back to her patrol car and, after running a records and warrant check, wrote defendant citations for exceeding the rural interstate speed limit and driving uninsured. The trooper then walked back to defendant's vehicle, gave her the citations, and briefly explained the information included on the back of the citations.

At that point, the trooper asked defendant if she had any weapons or open containers; defendant responded "no" in both instances. The trooper then requested and obtained defendant's consent to search the vehicle. That entire verbal exchange took approximately 30 seconds. The trooper searched the vehicle and found a duffle bag behind the seat. She asked defendant for consent to search it. Defendant consented, but not before first removing an eyeglass case. After searching the bag, the trooper asked defendant if she could look inside the eyeglass case. Defendant opened the case, and

214 Or. App. 230

the trooper observed a pipe with what appeared to be methamphetamine residue in it. The trooper tested the residue and determined that it was methamphetamine.

164 P.3d 1171

Before trial, defendant moved to suppress the evidence obtained as a result of the traffic stop, contending that, at the time that the trooper asked for permission to search the vehicle, defendant was unlawfully seized and the evidence should be suppressed because her consent to the search was not voluntary. In a written opinion after an evidentiary hearing on the motion, the trial court agreed that defendant was unlawfully detained when the trooper asked for consent to search the vehicle, but, citing State v. Rodriguez, 317 Or. 27, 38-40, 854 P.2d 399 (1993), explained that the evidence "need not be suppressed unless the consent was involuntary or it resulted from police exploitation of the unlawful detention." Because, as the court noted, "[d]efendant raised the issue of voluntariness, not exploitation," the court limited its consideration to that issue. The court then concluded that the state had adequately proved the voluntariness of defendant's consent and denied defendant's motion to suppress the evidence. Defendant filed a motion to reconsider, again arguing that her consent was not voluntary. The court denied that motion as well.

On appeal, defendant takes a different tack.1 Defendant now argues that the trial court should have suppressed the evidence on the ground that her consent to search was obtained through police exploitation of her unlawful detention, thereby violating her rights under Article I, section 9, of the Oregon Constitution.2 Defendant contends that she raised that issue in the trial court, but that, even if we determine that the issue was not adequately preserved, we should nevertheless review it as error apparent on the face of the record in light of the Supreme Court's decision in Hall.

214 Or. App. 231

In Hall, which was decided after the trial of this case, the Supreme Court clarified that "evidence obtained from a search following an otherwise valid consent is subject to suppression under the Oregon exclusionary rule if [the] defendant's consent is the product of the preceding unlawful police conduct" (what defendant refers to here as "exploitation" of the unlawful conduct). 339 Or. at 36, 115 P.3d 908. The Supreme Court explained:

"After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant's consent, then the state has the burden to prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct."

Id. at 34-35, 115 P.3d 908. The court then held that the state had not met its burden of proving that the defendant's decision to consent to the search was independent of, or only tenuously related to, the preceding unlawful stop, "[g]iven the close temporal proximity between the illegal detention and [the] defendant's consent [to search], and the absence of any intervening circumstances or other circumstances mitigating the effect of that unlawful police conduct." Id. at 36, 115 P.3d 908. Thus, evidence from the search was subject to suppression.

The state first disagrees that defendant preserved her "exploitation" claim. Next, although the state concedes that it was plain error under Hall for the trial court to deny defendant's suppression motion on the evidentiary record in this case, it argues that we should refrain from exercising our discretion to correct the error, because doing so would undermine preservation principles. According to the state, had defendant properly raised the question of exploitation before the trial court, the "trial court could have considered and, if necessary, correct[ed] any error, and the state would have been afforded an opportunity to respond."

Generally, an issue not preserved in the trial court will not be considered on appeal, unless it is an "error of law apparent

164 P.3d 1172

on the face of the record." ORAP 5.45(1). Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991). To preserve a claim of error, "a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged

214 Or. App. 232

error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000).

In this case, we readily conclude that defendant failed to preserve her claim of error regarding exploitation. As we understand it, defendant's argument is that, although "voluntariness was the primary focus" of her motion, both she and the state "broach[ed] the issue" of exploitation during the hearing on the motion, and the trial court mentioned it in its ruling. Consequently, in defendant's view, the court had an opportunity to consider the issue and, thus, the error is adequately preserved.

We disagree. In defendant's written motion, her oral argument before the court at the hearing on the motion, and her motion for reconsideration, defendant contended only that the evidence obtained during the search should be suppressed because her consent was not voluntary. She never argued that suppression was required because the evidence was the product of police exploitation of the unlawful stop. Indeed, during the hearing on her motion, defendant explicitly stated that her argument was so limited:

"The real issue here—the—really the only issue is whether her consent was voluntary or not, and that's a two-part test as it's been laid out. And she testified that she didn't feel like she had any choice; there's no reason to disbelieve that.

"So that the first part is whether—what her state of mind is. * * * If you look at the language [from State v. Arabzadeh, 162 Or.App. 423, 986 P.2d 736 (1999)] that the prosecutor was just talking about, they start of[f] by saying, `In State v. Rodriguez, subsequent consent to search is invalid under the Oregon Constitution in two separate ways.' And I think it's important that you keep those separate. One is whether the illegality had an effect on the listener's mind, which she testified it did. And then the other is the—when you get into the exploitation, and that's not really the main argument we're making. It's simply her state of mind."

(Emphasis added.) The court noted that and, accordingly, limited its analysis to the question of whether defendant's

214 Or. App. 233

consent was voluntary. Defendant's mere mention of the exploitation issue, in the context of rejecting it as a possible argument, did not provide the trial court with a specific enough explanation of the issue so as to permit the court to address and rule on it.

We proceed to the question whether the unpreserved error is "apparent on the face of the record." ORAP 5.45(1). An error is apparent on the face of the record, or is "plain...

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