State v. Courtney

• Decision Date: 20 April 2011
• Docket Number: No. 080130290; A139791.
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Daniel C.J. COURTNEY, Defendant–Appellant.
• Court: Oregon Court of Appeals

242 Or.App. 321

255 P.3d 577

STATE of Oregon, Plaintiff–Respondent,

v.Daniel C.J. COURTNEY, Defendant–Appellant.

No. 080130290; A139791.

Court of Appeals of Oregon.

Submitted Aug. 26, 2010.Decided April 20, 2011.

Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge Pro Tempore.SERCOMBE, J.

Defendant appeals from a judgment of conviction on one count of unlawful possession of methamphetamine, ORS 475.894, and assigns error to the trial court's denial of his motion to suppress evidence. Defendant, who was a passenger in a car that was stopped for a traffic violation, argues that he was unlawfully seized in violation of Article I, section 9, of the Oregon Constitution either as the result of an unlawful extension of the traffic stop or because he subjectively believed that he was not free to exit the car without police permission and that belief was objectively reasonable.¹ Accordingly, defendant argues that all evidence obtained as a result of his unlawful seizure should have been suppressed, including two methamphetamine pipes, various admissions, and the methamphetamine discovered in his shoe as a result of those admissions. The state responds that defendant was not unlawfully seized and, alternatively, that, even if defendant was illegally detained, the evidence he seeks to suppress did not derive from that illegality. Although we conclude that defendant was unlawfully seized in violation of Article I, section 9, we nonetheless affirm the decision of the trial court because defendant has failed to establish the existence of a minimal factual nexus between the discovery of the methamphetamine pipes and the unlawful police conduct, and defendant has not advanced any argument that, absent a factual link provided by the discovery of the pipes, there is a minimal factual nexus between his unlawful seizure and the remaining evidence he seeks to suppress.

I. HISTORICAL FACTS

We review the trial court's denial of defendant's motion to suppress for errors of law. ORS 138.220. The trial court's findings of historical fact are binding on appeal if there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). “If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion.” Id. (citation omitted). In this case, the trial court made extensive findings of fact at the hearing on the motion to suppress. The following facts are taken from those findings or are otherwise consistent with the trial court's ultimate conclusion and supported by evidence.

Just after midnight on January 13, 2008, a Portland police officer, Stenzel, observed a car being driven with only one tail light. Stenzel initiated a stop of the vehicle and called in the car's license plate to dispatch; Stenzel then proceeded to make contact with the driver, Bennett. Defendant was seated in the front passenger seat; there was also a second passenger seated in the back seat. Not long after the stop was initiated, a second officer (the cover officer) arrived on the scene.

Stenzel requested Bennett's license, registration, and insurance information. Bennett told Stenzel that his license was suspended and provided Stenzel with an Oregon identification card instead. Stenzel ran Bennett's identification and discovered that Bennett's license was actually revoked. Stenzel then cited Bennett for driving while revoked and, as required by Portland Police Bureau policy, he ordered a mandatory vehicle tow for Bennett's car. Thereafter, Stenzel recontacted Bennett to remove him from the car in order to prepare the car for the tow.

Because Stenzel patrols a high crime area, his regular practice when asking an individual to step out of a vehicle is to first ask if the individual has any weapons. Stenzel then asks for consent to search the person for weapons. Following those inquiries, Stenzel asks the person to place the person's hands on top of the person's head, with the fingers interlaced, and for the person to lean his or her body forward and turn slightly away from him. Stenzel then takes control of the person's hands and has the person stand up from the car.

In this case, Stenzel followed his regular practice when removing Bennett from the car; the patdown of Bennett revealed nothing of concern. Afterward, Stenzel took Bennett to the sidewalk, delivered the citation, and explained that he had to tow the car. Stenzel told Bennett that he “was going to get the passengers out so that [he] could perform an * * * inventory of the vehicle per the policy” and that, afterward, Bennett would be allowed to return to the car and remove anything he wanted to take with him. While Stenzel talked with Bennett on the sidewalk, the passengers remained seated in the car with the windows slightly cracked. At some point during the encounter, Stenzel “nonchalantly or casually” told the passengers something like “stay there, I'll be with [you] in a minute” or “I'll be with you in a second.” Defendant testified at the suppression hearing that he did not feel that he “was allowed to exit the vehicle without permission.”

After conversing with Bennett, Stenzel left him on the sidewalk near the cover officer. Stenzel then went to the rear of the vehicle, contacted the passenger in the back seat, told him the car was being towed, and went through his regular practice of asking about weapons, asking for consent to search for weapons, and directing the manner in which the back seat passenger exited the car. As with Bennett, the patdown of the back seat passenger revealed nothing of concern, and that passenger eventually joined Bennett on the sidewalk near the cover officer.

Stenzel then began to converse with defendant, who was seated in the front seat. Stenzel engaged in essentially the same conversation with defendant that he had with Bennett and the back seat passenger, although he may not have told defendant that the car was being towed. Stenzel asked defendant if he had any weapons; defendant said that he did not. Stenzel also asked defendant for consent to search him for weapons; defendant gave his consent. Stenzel then instructed defendant to place his hands on top of his head and interlace his fingers; defendant did so. As Stenzel opened the car door to remove defendant to facilitate the tow of the car, however, a clinking sound drew his attention to the “running board”—what Stenzel described as an interstitial space on the floor of the car between where the passenger seat ends and the door begins. Two glass pipes that were originally in the door had “teeter-totter [ed] * * * as the door was pulled open,” flipped out of the area they were sitting in, and landed near the running board, by the seat. The pipes were clear glass tubes with noticeable residue; Stenzel recognized the pipes to be methamphetamine pipes and believed he had probable cause to arrest defendant.

While defendant was still seated in the car, Stenzel immediately advised defendant of his Miranda rights. Stenzel asked defendant if he understood his rights; defendant responded that he understood. Stenzel then asked defendant about the pipes; defendant said that he had smoked the “stems” earlier, by which he meant the tube part of the pipe. Stenzel asked defendant if he had any methamphetamine on his person; defendant denied having any.

Stenzel took defendant into custody approximately 18 minutes after initiating the traffic stop. Stenzel had spent the majority of that time—about 14 minutes—dealing with the driver; the remaining four minutes were spent interacting with the back seat passenger and defendant. Sometime after taking defendant into custody, when Stenzel was transporting defendant to the jail, Stenzel had a conversation with defendant about entering the jail with contraband. Defendant then admitted to having “stuff” in his shoe. Stenzel asked defendant if “stuff” meant methamphetamine; defendant said yes. Stenzel checked defendant's shoe and found a crinkled up piece of paper wrapped around a small plastic baggie of clear crystals. Stenzel field tested the substance, and it tested positive for methamphetamine. Ultimately, defendant was charged with one count of unlawful possession of methamphetamine.

II. PROCEDURAL HISTORY

Prior to trial, defendant moved to suppress all evidence obtained in violation of various provisions of the state and federal constitutions, including Article I, section 9, of the Oregon Constitution. In his written motion, defendant argued that he had been unlawfully detained without reasonable suspicion and that any evidence derived from that illegality should be suppressed. At the hearing on the motion, the state argued that defendant had not been unlawfully seized, and that, even if the state was wrong on that point, defendant could not establish a factual nexus between the unlawful seizure and the discovery of the evidence, the evidence was in plain view, the evidence would have been inevitably discovered in an inventory of the car pursuant to Portland City Code 14C.10.030, and defendant was not compelled into making the statements about the methamphetamine in his shoe after he was given the Miranda warnings. In response, defendant again contended that he had been unlawfully seized without reasonable suspicion and also argued that the state had failed to lay a foundation for inevitable discovery by inventory.

The trial court ultimately denied defendant's motion to suppress, concluding in part that

“I think the defendant falls into...