State v. Clemons

• Decision Date: 17 December 2014
• Docket Number: A149682.,11CR0351FE
• Citation: 341 P.3d 810,267 Or.App. 695
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jeffrey James CLEMONS, Defendant–Appellant.
• Court: Oregon Court of Appeals

267 Or.App. 695

341 P.3d 810

STATE of Oregon, Plaintiff–Respondent

v.Jeffrey James CLEMONS, Defendant–Appellant.

11CR0351FE

A149682.

Court of Appeals of Oregon.

Submitted Sept. 24, 2013.

Decided Dec. 17, 2014.

Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

Opinion

ORTEGA, P.J.

Defendant appeals his judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence obtained during a traffic stop of a car in which he was a passenger. The trial court concluded that a police officer unlawfully extended the traffic stop as to the driver but that defendant had not been seized. Defendant argues that he was illegally seized under both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Because defendant was unlawfully seized under the Fourth Amendment, and the discovery of the evidence was not sufficiently attenuated from the illegal seizure, we reverse and remand.

“A trial court's findings of historical fact are binding on appellate courts if there is constitutionally sufficient evidence in the record to support those findings. Our function is to decide whether the trial court applied legal principles correctly to those facts.” State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993) (citations omitted). “The determination whether a person has been ‘seized’ * * * requires a fact-specific inquiry into the totality of the circumstances of the particular case.”Id. at 78, 854 P.2d 421 (citations omitted). We review the denial of a motion to suppress for legal error. State v. Ross, 256 Or.App. 746, 747, 304 P.3d 759 (2013).

The facts, as found by the trial court and supported by the record, are as follows. During a January evening, Deputy Tillett stopped a car on 1–5, in which defendant was a passenger, for traffic violations. Defendant's wife had been driving; defendant was sitting in the passenger seat and the couple's three children were seated in the back. Tillett approached the car's passenger side and recognized defendant from discovering narcotics during a traffic stop in the same car one month earlier. Tillett noticed that both defendant and the driver appeared nervous, even after he told the driver that he would only be issuing a warning. Tillett later testified that most people who “are nervous initially * * * tend to calm down” when informed that they will only receive a warning. When the driver continued to appear nervous, Tillett asked for her driver's license. Upon checking the driver's license with dispatch, he discovered that it had been suspended.

Tillett asked the driver to get out of the car to discuss the suspended license. After that discussion, he questioned her about defendant, his nervous behavior, and “if there [were] any illegal drugs or weapons in the vehicle.” The driver replied that “she didn't think so but she didn't know what [defendant] had been doing.” At that point, Tillett obtained the driver's consent to search the car. He then walked around to the passenger side and explained to defendant that the driver had given her consent to a search, that defendant needed to get out of the car so that the officer could search it, and that defendant was free to leave. Defendant responded that his children and wife were in the car and he was not going to leave.

Tillett requested support and, after another officer arrived, Tillett searched the car, including the trunk, where he found a backpack. Defendant, standing next to the officer during the search, identified the backpack as his. Tillett asked for and received defendant's consent to search the backpack, where he found a small glass case. He obtained defendant's consent to open the case, which contained syringes and a screen with a powdery white residue on it. Tillett field-tested the residue, and it tested positive for methamphetamine. Tillett then issued defendant a citation. At some point during the stop, the driver also received a citation for driving while suspended, though the timing of that citation is unclear.

Defendant moved to suppress evidence obtained during the traffic stop, arguing that he was unlawfully seized in violation of Article I, section 9, and the Fourth Amendment. After an evidentiary hearing, the trial court denied the motion to suppress, determining that the driver was unlawfully seized when Tillett extended the traffic stop without reasonable suspicion or probable cause, but that defendant was not unlawfully seized because he was “free to leave.” Defendant was later convicted of unlawful possession of methamphetamine.

Defendant contends that he was unlawfully seized under both the state and federal constitutions when Tillett questioned the driver about drugs and requested consent to search the car after the investigation into the traffic stop was completed. Defendant further argues that, because a traffic stop is a seizure of the driver and passengers, the officer's unlawful extension of the stop as to the driver also applies to the passengers, particularly because the officer unlawfully extended the search before telling defendant he was free to leave. Defendant alternatively contends that he was seized because a reasonable person would not think that he was “free to leave” when he was on the I–5 shoulder without transportation other than the stopped car and while his wife and three children remained with the car. In response, the state contends that defendant was not seized and that, even if defendant initially was seized at the time of the traffic stop, that seizure ended when Tillett told defendant that he was free to leave.

We begin with an analysis of defendant's argument under Article I, section 9. See Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981) (“The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim.”). Article I, section 9, provides that the people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” Of the many “encounters between law enforcement officers and citizens, * * * ‘only some implicate the prohibition in Article I, section 9, against unreasonable “seizures.” ’ ” State v. Backstrand, 354 Or. 392, 398–99, 313 P.3d 1084 (2013) (quoting State v. Ashbaugh, 349 Or. 297, 308, 244 P.3d 360 (2010) ). A “temporary restraint of a person's liberty for the purpose of criminal investigation—i.e., a ‘stop’—qualifies as a ‘seizure,’ * * * and must be justified by a reasonable suspicion of criminal activity.” State v. Rodgers/Kirkeby, 347 Or. 610, 621, 227 P.3d 695 (2010). A stop is distinct from a “mere conversation” or “noncoercive encounter” between an officer and a person “that involves no restraint of liberty” and “does not implicate the liberty protections provided in Article I, section 9.” Id.

Under Article I, section 9, “[p]assengers in a stopped vehicle—whether lawfully or unlawfully stopped—are not seized merely by virtue of their status as passengers.” State v. Ross, 256 Or.App. at 754, 304 P.3d 759. Instead, a passenger is seized only when there “ ‘is the imposition, either by physical force or through some “show of authority,” of some restraint on the individual's liberty.’ ” Backstrand, 354 Or. at 399, 313 P.3d 1084 (quoting Ashbaugh, 349 Or. at 309, 244 P.3d 360). The test is objective: “Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement?” Id. A citizen's discomfort with police interaction does not make the contact a seizure; rather, “[e]xplicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs.” Id. 401, 313 P.3d 1084. Asking for consent to search without more “to restrict a person's liberty and freedom of movement” by verbal or physical means does not constitute a “show of authority.” Ashbaugh, 349 Or. at 317, 248 P.3d 419. Under Article I, section 9, a court looks at whether an officer's manner or actions were accompanied “by any physical action that could be construed as threatening or coercive.” Id.

For instance, in State v. Courtney, 242 Or.App. 321, 333, 255 P.3d 577, rev. den., 351 Or. 401, 268 P.3d 152 (2011), we concluded that police had restricted the defendant's freedom of movement by a “show of authority” because the officer told the defendant passenger to stay where he was, there was a back-up officer close to the car, and the officer ordered the defendant to put his hands on top of his head with his fingers interlaced. Here, however, there was no similar “show of authority,” because Tillett told defendant that he was free to leave and the back-up deputy was physically distant from defendant. Because there was no “show of authority” towards defendant that seized him as a passenger under Article I, section 9 jurisprudence, defendant was not seized, and there is no state constitutional basis for suppression.

Under the Fourth Amendment, however, defendant was unlawfully seized. That amendment provides, in part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As the Oregon Supreme Court has recognized, under the Fourth Amendment, “for the duration of a traffic stop, a police officer effectively seizes ‘everyone in the vehicle,’ the driver and all passengers.” State v....