State v. Decker, A157223

• Decision Date: 22 February 2018
• Docket Number: A157223
• Citation: 417 P.3d 449,290 Or.App. 321
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Thomas Paul DECKER, Defendant-Appellant.
• Court: Oregon Court of Appeals

290 Or.App. 321

417 P.3d 449

STATE of Oregon, Plaintiff-Respondent,

v.Thomas Paul DECKER, Defendant-Appellant.

A157223

Court of Appeals of Oregon.

Argued and submitted September 6, 2016.

February 22, 2018

Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public Defender, Office of Public Defense Services.

Jacob R. Brown, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Jona J. Maukonen, Assistant Attorney General.

Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyagi, Judge.^*

HADLOCK, J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, and felon in possession of a restricted weapon, ORS 166.270(2). Defendant was convicted of those crimes in a stipulated-facts trial after the trial court denied his motion to suppress evidence that law enforcement officers found after stopping the vehicle that defendant was driving for a traffic violation. On appeal, defendant contends that the evidence should have been suppressed because officers found it after one officer, Oregon State Police Sergeant Barden, unlawfully extended the traffic stop. The state argues that Barden was justified in extending the stop because he had reasonable suspicion that defendant unlawfully possessed drugs or a weapon. We conclude that the record does not support a finding that Barden reasonably suspected defendant either of unlawfully possessing controlled substances or of unlawfully possessing a weapon. The trial court therefore erred when it denied defendant's suppression motion. Because that error was not harmless, we reverse and remand.

In the course of denying defendant's suppression motion, the trial court made factual findings that neither party challenges. We state the facts consistently with those express findings, which the record supports. State v. Shaff , 343 Or. 639, 641, 175 P.3d 454 (2007). In addition, we presume that the trial court implicitly resolved any other disputed factual matters "consistently with its ultimate conclusion" to the extent that resolving those factual disputes was necessary to the court's conclusion and to the extent that the record supports the implicit findings. Pereida-Alba v. Coursey , 356 Or. 654, 671, 342 P.3d 70 (2015).

The events that culminated in defendant's arrest began when Barden conducted a traffic stop after he saw a moving vehicle "almost straddling the center line." Barden activated his overhead lights and followed the vehicle, which slowed down to 10 or 15 miles an hour but did not immediately stop. Rather, Barden could see a silhouette of the driver's head moving to the right, toward the center of the vehicle, more than once. The vehicle kept going for 29 seconds at a very low speed before it stopped; Barden characterized that as an "extremely slow pull over" on a road on which there was no other traffic, although there was no place for the vehicle to pull completely off the road. Barden became increasingly nervous that "something's going to happen," like an attempt by the driver to flee or "a weapon * * * com[ing] into play." Barden explained at the suppression hearing that, from his training and experience, he develops a concern about a driver accessing or concealing weapons when it takes a driver as long to pull over as happened in this case.

After the vehicle stopped, Barden approached slowly, on high alert. His concern decreased once he could see the hands of the driver (defendant) and observed no weapons. Defendant told Barden that his driver's license was suspended and verbally identified himself instead of producing identification in response to the sergeant's request.

Although defendant's voice was fairly calm, he "would only glance at [Barden] and then he kept looking towards the center console, down at his feet, he just kept glancing, kept glancing, kept glancing, the whole time he was talking." That, in conjunction with "the very long pullover," heightened Barden's concern about weapons—specifically, "weapons that have been placed there"—although Barden did not believe that defendant posed an immediate threat because Barden could clearly see his hands.

Barden went back to his patrol car to verify defendant's identity. That took only a couple of minutes; during that time, Senior Trooper Chambers arrived at the scene. Barden asked Chambers to watch defendant, indicating Barden's concern about weapons. At about the time that dispatch verified that defendant's license was suspended, Chambers went to Barden's patrol car and told him that defendant had given an "odd" story about where he was driving; defendant had said that he was traveling between two points that "were on the other side of town completely" from where the stop occurred. Chambers also told Barden that the vehicle belonged to defendant's girlfriend, who was "known to be involved in controlled substances." Barden does not think that he and Chambers talked about anything else at that time.

Barden then had all the information he needed to issue a citation to defendant, but he had not completed writing that citation. At that point, Barden testified, he went back to defendant's vehicle, suspecting that defendant was engaged in criminal activity:

"When I recontacted him, at that point I had reason to believe, based off of what I had seen from the highly abnormal pullover, from his movements in the vehicle, from especially his actions of he kept glancing down, kept glancing down next to where he was seated, and then the additional information about where he was going to, which didn't seem to match at all where we were, that he was involved in criminal activity."

Accordingly, Barden began investigating the suspected criminal activity, transforming the stop—in his mind—from a traffic stop to a criminal stop. Barden asked defendant again where he was going, what he had hidden in the vehicle by the seat, and—after defendant denied having hidden anything—about drugs and weapons. Defendant did not consent to Barden's request to search the vehicle. Believing that he reasonably suspected defendant of criminal activity, Barden told defendant to get out of his vehicle so that a narcotics-detection dog could externally sniff it. Barden asked defendant whether he could pat him down for weapons; defendant refused and started reaching for his pockets. At that point, Barden patted him down for officer-safety reasons and brought him back to the patrol car.

At some point—the record does not indicate much about when, and the trial court made no finding on this point—Chambers alerted Barden to a knife that was visible on the center console; Barden had not known that the knife was there.¹ Barden retrieved the knife and verified that it snapped open with centrifugal force, making it a knife that was unlawful for defendant, a felon, to possess.

Barden testified that at some point, "[e]arlier on in the stop," Chambers had told him that defendant was a convicted felon. Nothing in the record indicates how much earlier during the stop that communication occurred.

While a third officer waited with defendant at Barden's patrol car, Barden and Chambers searched defendant's vehicle for additional weapons. Although they did not find more weapons, they did find several baggies that contained methamphetamine, in the area where defendant had been looking. Defendant subsequently was charged with unlawful possession of methamphetamine and felon in possession of a restricted weapon. As noted, the trial court convicted defendant after denying his suppression motion, and defendant appeals.

On appeal, defendant argues that the trial court erred in denying the suppression motion because Barden impermissibly started investigating whether defendant unlawfully possessed drugs or weapons "instead of prosecuting the traffic infractions." According to defendant, that investigatory extension of the stop violated his rights under Article I, section 9, of the Oregon Constitution because Barden did not have reasonable suspicion that he unlawfully possessed either controlled substances or weapons. According to defendant, the delay before he stopped his vehicle, his nervous behavior and movements in the vehicle, his association with a person known to be involved with illegal drugs, and his odd story about where he was driving did not combine to give Barden reasonable suspicion that he then possessed controlled substances. Defendant similarly argues that the circumstances did not give rise to reasonable suspicion that he unlawfully possessed a weapon, because the record does not support a finding that Barden knew of the facts necessary to give rise to a reasonable belief that defendant was a felon in possession of a restricted weapon—in particular, that defendant was a felon—before he told defendant to get out of the vehicle and patted him down. In response, the state argues that the record supports a determination that Barden reasonably suspected that defendant was engaged in criminal activity before he stopped processing the traffic citation and, instead, began a criminal investigation.

We begin our analysis by emphasizing what is not at issue on appeal. First, defendant does not challenge the lawfulness of the original traffic stop. Second, the state does not dispute that Barden extended that stop when he started questioning defendant upon "recontacting" him; as Barden candidly testified, those questions did not relate to the traffic stop but "had to do with [Barden's] suspicion of [defendant's] involvement in criminal activity," and Barden viewed the encounter as having transformed into a criminal stop at that time. Third, the state does not seek to defend Barden's extension of the stop on officer-safety grounds (Barden did not testify that officer-safety concerns prompted either his questions to defendant or his...