State v. Davis

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: SHORR, J.
• Citation: State v. Davis, 282 Or App 660, 385 P.3d 1253 (Or. App. 2016)
• Decision Date: 07 December 2016
• Docket Number: A158034
• Parties: STATE of Oregon, Plaintiff-Respondent, v. William Roy DAVIS, Defendant-Appellant.

282 Or.App. 660

385 P.3d 1253

STATE of Oregon, Plaintiff-Respondent,

v.William Roy DAVIS, Defendant-Appellant.

A158034

Court of Appeals of Oregon.

Argued and submitted September 16, 2016.

December 7, 2016

Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

SHORR, J.

Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890. He assigns error to the denial of his motion to suppress evidence that the police discovered following a traffic stop. Defendant raises three main arguments: First, defendant argues that the officer lacked reasonable suspicion to extend the traffic stop to investigate suspected drug activity; second, defendant argues that the officer's patdown search of defendant was not justified by a reasonable concern for officer safety; and, third, defendant argues that the officer lacked probable cause to reach into defendant's pocket and remove a camera case, in which the officer ultimately found methamphetamine. Assuming without deciding that the officer had reasonable suspicion to extend the traffic stop, we conclude that he nonetheless lacked an objectively reasonable concern for officer safety, and the patdown of defendant was therefore unlawful. Our resolution of that question obviates the need to address defendant's other arguments and, as discussed below, we reverse his conviction and remand.

In reviewing a denial of a motion to suppress, "we are bound by the trial court's findings of historical fact that are supported by evidence in the record." State v. Holdorf , 355 Or. 812, 814, 333 P.3d 982 (2014). Where the court did not make findings and "there is evidence from which those facts could be decided more than one way, we will presume that the trial court found facts in a manner consistent with its ultimate conclusion." Id . We state the facts below in accordance with those standards.

Jewell, a trooper with the Oregon State Police, had just concluded a midmorning traffic stop when he saw defendant pull up to a nearby stop sign. Jewell noticed that defendant was not wearing a seatbelt and signaled for him to pull over. Defendant complied and, when Jewell approached defendant's truck, he noticed that defendant was "reaching down on the floorboard area," and defendant's left hand went between his legs where Jewell could not see it. Concerned because defendant's movements were not typical for a traffic stop, and because Jewell did not know what defendant was doing, Jewell asked defendant to keep his hands where Jewell could see them. Defendant complied and did not reach toward the floorboard again. Defendant continued to cooperate throughout the remainder of the traffic stop. Defendant told Jewell that he was not carrying any identification, that he was not the registered owner of the vehicle, that he did not have insurance, and that his driver's license was suspended. Jewell asked defendant to write down his name, date of birth, and other information. Defendant did as instructed, and, as he wrote down his information, he told Jewell that he had just come from his girlfriend's house in a nearby neighborhood. Jewell recognized the neighborhood as a high-crime area associated with methamphetamine activity.

As Jewell spoke with defendant, he noticed that defendant was "extremely nervous," and, as he later testified, "nervous to the point where I thought he * * * was ready to run or fight at any point in time." Jewell testified that he believed defendant might "run or fight" based on defendant's overall nervousness and because defendant was "looking about as if looking for a place to run." Additionally, Jewell noticed that defendant had bloodshot eyes and was making fidgety movements, including "mov[ing] his hands and fingers almost nonstop" and continually "tak[ing] his sunglasses on and off his head." Jewell testified that he believed those movements were consistent with recent drug use, but that he did not believe that defendant was "impaired to a noticeable, perceptible degree" by any substance. Jewell also noticed "a bulge in both of [defendant's] jeans pockets." Jewell testified that he "asked what it was[,] in hopes that it would be [defendant's] wallet with his I.D." Defendant first told Jewell that, "in substance[,] he didn't know exactly what was in his pocket." When Jewell asked again a few minutes later, defendant told Jewell that he had cigarettes in his pocket.

About five minutes into the stop, another officer, Ledbetter, arrived with a drug detection dog. At that point, Jewell believed that he had reasonable suspicion to investigate defendant for possible drug activity. Ledbetter ran the information that defendant had written down while Jewell remained with defendant. Jewell asked defendant if he had anything illegal on him or in his truck, which defendant denied. Jewell then asked for consent to search defendant and his truck, which defendant also denied. Ledbetter confirmed that defendant's license was suspended,¹ and Jewell began writing a citation while Ledbetter remained at the truck talking with defendant. During that conversation, Ledbetter also noticed that defendant seemed extremely nervous and showed signs consistent with methamphetamine use.

Jewell and Ledbetter briefly compared their observations and decided to get Ledbetter's drug detection dog. Ledbetter told defendant that he was going to walk his drug detection dog around defendant's truck to sniff for controlled substances. Jewell then told defendant to get out of the truck, defendant did as instructed, and Jewell patted him down. Jewell testified that, upon reaching defendant's left pocket, he "felt what initially felt like bindles, * * * small plastic packages of controlled substances, and it felt like a soft-sided kind of wallet or something like that that they were under." Jewell frisked defendant a second time, more thoroughly feeling defendant's left pocket again to confirm what he felt. Ledbetter then patted defendant down and manipulated defendant's pocket to feel what was inside. Ledbetter also believed that defendant had bindles of a controlled substance, and so Jewell removed what turned out to be a soft camera case from defendant's pocket. After the drug detection dog alerted to the camera case, Ledbetter opened it and found methamphetamine inside. Defendant was arrested and charged with unlawful possession of methamphetamine, ORS 475.894, and unlawful delivery of methamphetamine, ORS 475.890.²

Before trial, defendant moved to suppress evidence obtained as a result of the stop. Defendant argued, among other things, that Jewell unlawfully extended the traffic stop by initiating a drug investigation without reasonable suspicion; that Jewell's patdown of defendant was not supported by a valid officer-safety concern; and that Jewell lacked probable cause or a valid officer-safety concern to remove the camera case from defendant's pocket.

As relevant to defendant's officer-safety argument, Jewell testified during the suppression hearing that his safety concern was based on the following factors: (1) As Jewell was approaching defendant's truck, defendant made a movement toward the floorboard and defendant's left hand went "between his legs where [Jewell] couldn't see it"; (2) defendant was extremely fidgety and had bloodshot eyes, which Jewell believed were signs of recent drug use but not current impairment; (3) defendant was extremely nervous and Jewell believed that defendant "was ready to run or fight at any point in time" and was "looking about as if looking for a place to run"; (4) there were bulges in defendant's pockets; (5) when asked, defendant initially said he did not know what was in his pockets; and (6) Jewell had decided to ask defendant to get out of his truck for the drug sniff, and Ledbetter was going to have his back turned while he walked the drug detection dog. On cross-examination, Jewell testified that defendant was cooperative and readily provided his name, address, and other information when asked. Jewell also testified that defendant did not take issue with being asked to step out of the truck for a patdown, despite having just denied consent for the same search.

The trial court denied defendant's motion to suppress, concluding that Jewell's extension of the traffic stop was supported by reasonable suspicion and that Jewell also had a reasonable concern for officer safety that justified both the extension of the traffic stop and the initial patdown. The trial court further concluded that, on the first patdown, Jewell developed probable cause to arrest defendant for suspicion of a drug crime, and the second and third patdowns were therefore supported by probable cause and alternatively justified as searches incident to arrest. On appeal, defendant contests those three conclusions. As noted, we conclude that Jewell's initial patdown search was not justified by a reasonable concern for officer safety, and we therefore do not need to address defendant's other arguments. Accordingly, our analysis focuses only on the officer-safety issue.

In reviewing the denial of a motion to suppress evidence based on an allegedly unconstitutional search or seizure, "[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." State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). On appeal, "[o]ur function is to decide whether the trial court applied legal principles correctly to those facts." Id . We review the denial of a defendant's motion to suppress for legal error. Id .

The ...