State v. Colman-Pinning

• Decision Date: 26 February 2020
• Docket Number: A159431
• Citation: 302 Or.App. 383,461 P.3d 994
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Nicholas COLMAN-PINNING, Defendant-Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 383

461 P.3d 994

STATE of Oregon, Plaintiff-Respondent,

v.Nicholas COLMAN-PINNING, Defendant-Appellant.

A159431

Court of Appeals of Oregon.

Argued and submitted August 30, 2017.

February 26, 2020

Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Susan G. Howe, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

AMSTRONG, P. J.

Defendant appeals a judgment of conviction after a conditional guilty plea for multiple drug offenses that the trial court entered. He assigns error on appeal to the trial court’s denial of his motion to suppress evidence obtained in a warrantless search of his vehicle after he was stopped on his way to a police-arranged drug buy. We conclude that the warrantless search was valid under the automobile exception to the warrant requirement, State v. Brown , 301 Or. 268, 276, 721 P.2d 1357 (1986), and that the trial court did not err in denying defendant’s suppression motion. We therefore affirm.

BACKGROUND

The relevant facts are undisputed. Two or three days before defendant’s arrest, police in Lincoln County stopped a person who was in possession of heroin. The person reported that, for the past six months, he had been purchasing significant amounts of heroin (15 grams for $1,600 per buy) from defendant every two to four days. Police viewed the person and his information as reliable and told him that, if he would help law enforcement locate drug dealers in the county, they would explain to the district attorney that he had been cooperative and helpful to their efforts. He agreed that he would be a "confidential person" (CP) for an investigation of defendant.

Detectives and officers in the Lincoln Interagency Narcotics Team (LINT) met with the CP at about 8:30 a.m. on the day of defendant’s arrest and developed a plan that would lead defendant to believe that the CP would buy the usual amount of drugs from defendant at a certain location. The CP confirmed defendant’s home address and described defendant’s vehicle, a dark green Toyota pickup truck. Police then obtained defendant’s license plate number from the Department of Motor Vehicles. Based on the CP’s past purchases, the CP believed that defendant would take a particular route, viz. , he would head north on Highway 101 from his residence to the CP’s workplace in Newport, the planned drug-buy location. With that in mind, LINT planned to rely on the automobile exception announced in Brown to stop defendant and conduct a warrantless search of defendant’s pickup while he was on his way to the arranged drug buy. See Brown , 301 Or. at 274, 721 P.2d 1357 (announcing a per se exception to the warrant requirement "provided (1) that the automobile is mobile at the time it is stopped by police or other governmental authority, and (2) that probable cause exists for the search of the vehicle"). LINT had regularly used such a plan in the past, where the police "create [their] probable cause prior to the person coming to a particular location."

At LINT’s direction, the CP exchanged text messages with defendant and arranged for a drug buy at the CP’s workplace, to occur before the CP started his shift. Detective Dorsey positioned himself about 10 minutes from defendant’s home near Ona Beach, and other LINT officers waited further north along Highway 101. At approximately 11:25 a.m., Dorsey saw defendant traveling in his pickup; 10 or 15 minutes earlier, defendant had texted the CP to say that he was on his way to the buy location. At 11:35 a.m., other officers spotted defendant’s pickup and pulled him over. A detective explained to defendant that he had been stopped because officers had probable cause to believe that defendant had controlled substances in the vehicle. Defendant got out of his pickup, and a detective patted defendant down and felt a round, cylindrical shape. After patting defendant down, a detective handcuffed defendant and explained that he was not under arrest but that he was being detained.

Detective Meister arrived and spoke with defendant, and defendant admitted that he possessed marijuana. Meister said that police were looking for other controlled substances, and defendant said that police did not have consent to search his pickup. Defendant asked Meister if he had a search warrant, and Meister replied that a warrant to search the pickup was not required because the stop was a " Brown stop." Police placed defendant in a patrol car, a police dog and officers searched the pickup, and the officers found heroin and other controlled substances. Defendant was arrested and charged with multiple counts of possession and delivery of controlled substances.

Defendant filed a motion to suppress evidence derived from the warrantless search of his pickup, and a hearing was held on the motion. Meister testified, and when asked why LINT did not use a controlled buy and a wire to apprehend defendant with heroin, he answered that using a wire was unnecessary, because LINT could build probable cause by the exchange of texts between the CP and defendant. Moreover, Meister explained that an automobile stop is generally a safer approach. As for why LINT did not get a warrant for the search, Meister said:

"The nature of this investigation did not preclude [sic ] the need to get a warrant. This is a very common way of completing an investigation that there could be all sorts of little things that are involved that are going to cause concern whether a confidential person is going to be around after that day, whether he’s going to [be] willing to continue to cooperate, sometimes you need to just go with what you have, and complete the investigation."

When Meister was asked if he could have obtained a warrant by 11:00 a.m. or 12:00 p.m, he replied, "Possibly," and, if he could have obtained a telephonic warrant, he replied, "Yes."

After the hearing testimony, defendant pointed out that officers had information about defendant days before the arrest, and referred to Meister’s testimony that a telephonic warrant could have been obtained by "11:30 [a.m.] at a minimum." Defendant also argued that the automobile exception "generally would not apply in a situation where the plan was at all times to remove the defendant from the vehicle, rendering the vehicle immobile because the plan was to search the vehicle." For its part, the state argued that the search was permissible under the automobile exception because the vehicle was mobile when it was stopped and there was probable cause to believe it would contain controlled substances. As to when probable cause arose, the state asserted that it had "repeatedly been denied warrants" when a belief could not be articulated whether the drugs would be located either on the person or in their residence, and that sometimes drug dealers would need to go to their supplier before they could complete a drug transaction. According to the state, the police did not have probable cause until the last text message from the CP when they had reason to believe that defendant was on his way to the arranged drug buy with the heroin.

The trial court denied defendant’s suppression motion, concluding that the search was valid under the automobile exception, because the officers had lawfully stopped defendant in connection with a crime—viz. , the delivery and possession of heroin—while his vehicle was mobile, and, when the officers stopped defendant’s vehicle, the officers had probable cause to believe controlled substances were in the pickup. Ultimately, the court relied on the "bright-line" nature of the automobile exception to the warrant requirement to deny defendant’s motion. Moreover, the court said, the fact "[t]hat police had available to them other investigatory tools, i.e ., a controlled buy or applying for a search warrant of defendant’s vehicle and/or residence, does not invalidate the applicability of the automobile exception so long as the requirements of [the automobile exception] are met." Defendant entered a conditional guilty plea, reserving the right to challenge on appeal the denial of his suppression motion.

ANALYSIS

Article I, section 9, of the Oregon Constitution prohibits unreasonable searches and seizures. A warrantless search is per se unreasonable unless it falls within one of the limited exceptions to the warrant requirement. State v. Bliss , 363 Or. 426, 430, 423 P.3d 53 (2018). The automobile exception is one of those exceptions and allows police to search a vehicle without a warrant if (1) the vehicle is mobile when the officers first encounter it in connection with a crime and (2) the officers have probable cause to believe that the vehicle contains contraband or evidence of a crime. Brown , 301 Or. at 276, 721 P.2d 1357 ; State v. Andersen , 361 Or. 187, 200-01, 390 P.3d 992 (2017). As explained in Brown , the automobile exception is a subcategory of the warrant exception for exigent circumstances, necessitated by the fact that a vehicle that is mobile can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Brown , 301 Or. at 275, 721 P.2d 1357. The mobility of the vehicle creates a per se exigency, meaning that there is no need to establish other exigencies or that a warrant could not have been quickly obtained. Id. at 276, 721 P.2d 1357.

In Andersen , the Supreme Court revisited the automobile exception announced in Brown —casting "some doubt on the per se nature" of the exception, State v. McCarthy , 302 Or. App. 82, 88, 459 P.3d 890 (2020) —when it explained:

"We do not foreclose the possibility that Brown held out—that changes in technology and communication could result in warrants being drafted, submitted to a magistrate, and reviewed with

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