State v. Caprar

• Decision Date: 15 August 2007
• Docket Number: A121812.,0207-33904.,A121810 (Control).,0211-36991.,A121811.,0204-32579.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Christian CAPRAR, aka Cristian Caprar, Defendant-Appellant.
• Court: Oregon Court of Appeals

166 P.3d 567

214 Or. App. 434

STATE of Oregon, Plaintiff-Respondent, v. Christian CAPRAR, aka Cristian Caprar, Defendant-Appellant.

0204-32579.

0207-33904.

0211-36991.

A121810 (Control).

A121811.

A121812.

Court of Appeals of Oregon.

Argued and Submitted March 30, 2007.

Decided August 15, 2007.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the opening brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services. On the

reply brief was Ingrid Swenson, Executive Director.

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

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and CARSON, Senior Judge.

EDMONDS, P.J.

Defendant was convicted of various crimes in three different cases, which were consolidated for this appeal. Defendant challenges only his convictions in case number A121810 on one count of delivery of a controlled substance and on one count of possession of a controlled substance, former ORS 475.992 (2001), renumbered as ORS 475.840 (2005). He assigns as error the denial of his motion to suppress evidence seized during a consensual search, arguing that he was stopped unlawfully and that the police exploited the unlawful stop to obtain his consent to search. He also argues that he did not abandon a cracker box observed under an automobile, which contained drugs and an electronic scale. We reverse and remand for the reasons that follow.

The facts relevant to this appeal are undisputed. Officer Davis responded to an aborted 9-1-1 call from an apartment in Portland. She was familiar with the address because a neighbor had called several times before to report drug activity at the apartment. Officer Gray also responded to the scene as backup. When Davis arrived at the parking lot of the complex, she parked her patrol car behind a red car; defendant and a woman, Danilova, were standing near the red car. Gray parked her patrol car behind Davis's car, effectively blocking the entrance to the parking lot. Davis observed defendant to be "holding something in his hand which he set down behind the car." Davis testified that, at that time, "I did not look at what it was." The officers inquired whether either defendant or Danilova had called 9-1-1, and they responded that they had not made the call. Defendant said that he was visiting friends in the apartment. Davis then told them to stay with Gray while Davis proceeded to investigate the circumstances surrounding the 9-1-1 call. According to Davis, defendant and Danilova were not free to leave at that time.

Davis then proceeded to the apartment to investigate the call to 9-1-1. As a result, she discovered ongoing drug activity in the garage of the apartment that prompted the arrest of the apartment's occupant. Davis returned to the parking lot about 10 minutes later and spoke with defendant and Danilova. Davis asked defendant whether his visit to the apartment had anything to do with the drug activity in the garage and whether he had any drugs in his possession or in the car. Defendant replied in the negative to both questions. Davis asked defendant if he would consent to a search of his person for drugs, and defendant consented. Gray searched defendant, finding a wallet containing $460, an additional $193 and some change in another pocket, multiple small zip-lock baggies, and a folded dollar bill that contained a white substance that tested positive for a controlled substance.

As a result of her search, Gray arrested defendant. She asked defendant what the baggies were for, and he replied, "Beads." Davis then walked up and asked Gray about the baggies, and Gray told her that they were for "[b]eads." At that point, Davis and Gray looked over near the red car and saw a Cheese Nips cracker box lying on its side underneath the car. Gray described its location as "about a foot and a half and two feet" under the car. As to the box's visibility to onlookers, Gray explained,

"We pulled in behind the car, which would put the driver's side on the left-hand side, on the door side, so it [the cracker box] was under the driver's rear wheel area, but not underneath the wheel obviously, about a foot past the bumper where we would have seen it driving up because it's, you know, bright, multicolored. We would have seen it when we were driving up, but you wouldn't see it like if you were standing right on the back of the car there."

Gray added,

"There was a clear box that looked like it could have had beads in it. It was inside the box. You could—you could look at it and there was a clear box inside of there that had like multi colors. I remember seeing something like that. And at that point I thought, `Wow, maybe those are beads,' and so we picked up the box. And Officer Davis asked what was in the box. So I leaped over, I picked it up and I could see there was some sort of Tupperware container, that it was in the location that was lined, the clear box with items inside. "So I looked at the first clear box that I pulled out and it had a couple different colors in it, as I recall, and it turned out to be a scale. From my training/experience, this is the same type of scale used for measuring out baggies of drugs. And then I took a closer look at the Tupperware containers, and through them I could see that there was a crystal substance that, in my training and experience again, looked to me to be—or appeared to be meth."

Davis also testified regarding the box:

"I asked Officer Gray, `What's that?' and I pointed at it. And she picked up the box. Her eyes got very wide as she looked inside. And then she held the box open for me to see and I saw there was an electronic scale, which is what I thought was beads when I looked at it from a distance, and I could see Tupperware containers underneath that looked to be holding something that I suspected to be illegal drugs."

When asked by the officers, defendant denied ownership of the box and its contents. Danilova gave the officers permission to search the car, which belonged to her, and Gray found a black container that held a scale with white crystal residue on it.

Before trial, defendant moved to suppress all of the evidence seized by the officers. Defendant argued that he had been unlawfully stopped and that the officers exploited that illegality to obtain his consent to search. At the hearing on the motion, Davis testified that, when she told defendant and Danilova to stay with Gray, they were not free to leave, because she was not sure what was going on in the apartment, that someone could be dead or injured, and that she had "no idea" whether defendant had committed a crime. Davis also testified that, once she determined that the occupant's brother had called 9-1-1, defendant was free to leave. However, she did not tell defendant that he could leave before she asked for his consent to search him. The state acknowledged to the trial court that Davis's actions constituted a detention of defendant at a time when she did not have reasonable suspicion to believe that he had committed a crime. However, the state argued that the stop was valid under the community caretaking statute.¹ The state also argued that defendant had abandoned the cracker box when he put it under Danilova's car as the officers approached. The trial court denied the motion to suppress, ruling that defendant's detention was lawful under the community caretaking statute. After a jury trial, defendant was convicted. He appeals and assigns error to the denial of his motion to suppress.

We review the denial of a motion to suppress for errors of law, and we are bound by the trial court's findings of historical facts as long as there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). When the trial court has made no factual findings, we presume that the court found the facts in a manner that is consistent with its ultimate conclusion. State v. Ready, 148 Or.App. 149, 153-54, 939 P.2d 117, rev. den., 326 Or. 68, 950 P.2d 892 (1997).

Defendant first argues on appeal that his detention was not authorized by the community caretaking statute because Davis stopped him for a criminal investigatory purpose. The state concedes on appeal that defendant's detention was not authorized under the community caretaking statute. We agree and accept the state's concession. The state argues, however, that the evidence gained from the search of defendant is admissible because the officers did not exploit the unlawful stop in order to obtain his consent to search. Defendant responds that, under State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), he has established a minimal factual nexus between the unlawful stop and his consent to search and that the evidence must be suppressed because the police failed to prove that his consent was independent of the unlawful stop.

In Hall, the Supreme Court held that, to successfully suppress evidence found in a consensual search, a defendant must show "a minimal factual nexus between unlawful police conduct and the defendant's consent." Id. at 34-35, 115 P.3d 908. A "minimal factual nexus" is a "but for" relationship between the evidence sought to be suppressed and the prior unlawful police conduct. Id. at 25, 115 P.3d 908. Once the defendant has shown that nexus, however, the evidence may still be admissible if the state can "prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct." Id. at 35, 115 P.3d 908.

"To make that showing, the state must prove that either (1) the police inevitably would have obtained the disputed evidence through lawful procedures even without the violation of the defendant's rights under Article I, section 9; (2) the police obtained the disputed...