State v. Delong, 09CR1050FE

• Decision Date: 09 December 2015
• Docket Number: 09CR1050FE,A146907.
• Citation: 275 Or.App. 295,365 P.3d 591
• Parties: STATE of Oregon, Plaintiff–Respondent, v. William Rick DELONG, Defendant–Appellant.
• Court: Oregon Court of Appeals

275 Or.App. 295

365 P.3d 591

STATE of Oregon, Plaintiff–Respondent,

v.William Rick DELONG, Defendant–Appellant.

09CR1050FE

A146907.

Court of Appeals of Oregon.

Submitted on Remand July 22, 2015.

Decided Dec. 9, 2015.

Peter Gartlan, Chief Defender, and Ryan T. O'Connor, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

NAKAMOTO, J.

This criminal appeal is before us on remand from the Oregon Supreme Court, State v. Delong, 260 Or.App. 718, 320 P.3d 653 (2014) ( Delong I ), rev'd and rem'd, 357 Or. 365, 350 P.3d 433 (2015) (Delong II ). The issues on remand are narrow. After handcuffing defendant during a traffic stop, a deputy sheriff asked defendant whether there was anything in his car that the police "should be concerned about," but he failed to advise defendant of his Miranda rights, in violation of Article I, section 12, of the Oregon Constitution.¹ Defendant responded by saying "no" and then offering that the deputies could "search the vehicle." A deputy searched the car, found a fanny pack, and opened it, revealing drugs and drug paraphernalia. When confronted with the contraband and after receiving belated Miranda warnings, defendant made admissions.

The Supreme Court has remanded for us to address two issues that we did not reach in Delong I: (1) whether the search of the fanny pack exceeded the scope of defendant's invitation to search, as defendant contends, and (2) whether the statements that defendant made to the deputy after receiving belated Miranda warnings were admissible, in light of the Supreme Court's conclusion that those statements did not unlawfully derive from the Article I, section 12, violation. Delong II, 357 Or. at 385, 350 P.3d 433. We conclude that the deputy's search exceeded the scope of defendant's consent to search his car, and, therefore, the physical evidence found in the fanny pack must be suppressed. As a result, the trial court erred in admitting that evidence. We also conclude that defendant's subsequent statements are not admissible because the Miranda warnings that the deputy eventually administered, although accurate and effective, did not attenuate the taint of the preceding unlawful search. Therefore, the trial court erred in admitting those statements. Accordingly, we reverse and remand.

We take the facts from the opinions in Delong I and Delong II and the trial court record. A deputy sheriff, Sergeant Robeson, stopped defendant for a seat belt traffic violation. See ORS 811.210 (requiring that drivers wear seat belts). Robeson had been following defendant and had observed that defendant appeared to be trying to avoid him. In response to Robeson's request for his license, registration, and proof of insurance, defendant

"gave Robeson his name but could not produce a driver's license or other picture identification. Driving without a license is a traffic offense; however, it is a defense to that charge that the driver in fact had a valid license. See ORS 807.570. Robeson sought to determine defendant's identity so that he could see if defendant in fact had a valid license. * * * Robeson also wanted to identify defendant to see if there were a reason why defendant apparently had sought to avoid him; specifically, Robeson wanted to see if there were an outstanding warrant for defendant's arrest.

"There was a passenger in defendant's car, and Robeson removed defendant from his car, frisked and handcuffed him, and put him in the backseat of the patrol car before asking him some background questions to verify his identity. At that point, Robeson had not advised defendant of his Miranda rights."

Delong II, 357 Or. at 367–68, 350 P.3d 433 (footnote omitted).

A second deputy, Poe, arrived to assist around the time that Robeson was taking defendant into custody.

"Robeson and Poe both attempted to identify defendant. Robeson asked defendant questions about his identity and filled out a form based on defendant's responses.

Defendant told Robeson that he was from Utah and gave him other identifying information, which Robeson then gave to dispatch to search for an Oregon or Utah driver's license. Meanwhile, Poe used his in-car computer to search for more information about defendant, including looking for [outstanding] warrants."

Delong I, 260 Or.App. at 720, 320 P.3d 653.

Robeson believed, generally, that defendant was not being truthful and that "something [was] going on." "Before dispatch responded, Robeson further asked defendant," in Robeson's words, "whether there was ‘anything in the vehicle that we should be concerned about.’ " Id. at 721, 320 P.3d 653. Defendant responded " ‘no,’ " and stated that " ‘if [the deputies] wanted to search the vehicle, [they] could.’ " Delong II, 357 Or. at 368, 350 P.3d 433. Defendant testified that Robeson asked " ‘[I]f he could search—if I minded if he searched the vehicle.’ " Id. at 368 n. 4, 350 P.3d 433. Defendant testified that he responded, " ‘I don't care but I got a whole bunch of stuff in the trunk of the car. * * * I'd like you to put it back when you're done.’ " Id.

"Poe found that there was a restraining order entered against defendant and informed Robeson." Delong I, 260 Or.App. at 721, 320 P.3d 653. Robeson "then told Poe about defendant's consent to search the car. Poe conducted the search while Robeson interviewed [the passenger]. Among other things, Poe found a fanny pack under the passenger seat." Id. He showed it to the passenger and asked if it belonged to her. "She said that it did not belong to her. Poe then opened the fanny pack and found several small zip-lock plastic bags, a pill bottle, and plastic straws, all containing a white powder residue." Id.

"Poe and Robeson then returned to defendant after a third deputy, Thornton, arrived to assist. Poe gave defendant Miranda warnings and asked questions about what Poe had found in the car. Defendant then made incriminating statements, including admitting that the fanny pack was his and that there were drug paraphernalia in it. Thornton's field test on one of the plastic bags indicated that the white residue it contained was methamphetamine."

Id.

The trial court denied defendant's motion to suppress defendant's statements and the physical evidence, and defendant was then convicted of a drug charge. Id. at 721–22, 320 P.3d 653. On appeal, we reversed, concluding that defendant's unwarned statement offering consent to a search was the result of the Article I, section 12, violation when the deputy took defendant into custody and placed him in the back of the patrol car. Id. at 726–27, 320 P.3d 653. We did not reach defendant's arguments that Poe's search of the fanny pack exceeded the scope of defendant's consent to search the vehicle, and that, therefore, the physical evidence discovered and defendant's subsequent statements must be suppressed.

On review, the Supreme Court reversed our decision. Delong II, 357 Or. at 386, 350 P.3d 433. The court concluded that, under the totality of the circumstances, the taint flowing from the Article I, section 12, violation was attenuated when defendant invited the deputies to search the car. Id. at 378–80, 350 P.3d 433. The court, therefore, directed us to first "resolve defendant's argument that the officer's search exceeded the scope of defendant's invitation" and, if the search did not exceed the scope of consent, to determine "whether the statements that defendant made to the deputy after receiving belated Miranda warnings were admissible." Id. at 385, 350 P.3d 433. On the other hand, the Supreme Court stated, if the search of the fanny pack "exceeded the scope of defendant's consent, then the question will be" whether "the belated Miranda warnings were effective." Id. at 386, 350 P.3d 433.

Whether a search exceeded the scope of a defendant's consent is a question of law. State v. Arroyo–Sotelo, 131 Or.App. 290, 295, 884 P.2d 901 (1994). "Our task * * * is to determine whether the trial court's factual findings, supported by the record, are adequate to sustain its legal conclusion that [the officer] acted within the scope of defendant's consent." Id. "When the state relies on consent to support a search, it must prove by a preponderance of the evidence that the police officer conducting the search complied with any limitation on the scope of the defendant's consent." State v. Lamoreux, 271 Or.App. 757, 760, 354 P.3d 717 (2015) (citing State v. Fugate, 210 Or.App. 8, 13, 150 P.3d 409 (2006) ). Evidence obtained outside the scope of consent to a warrantless consent search must be suppressed. See State v. Jacobsen, 142 Or.App. 341, 350, 922 P.2d 677 (1996).

The police must have a specific constitutional justification for a warrantless search of a closed container within a car. See, e.g., id. at 346, 922 P.2d 677 (stating that, absent a constitutional basis to justify a search of a zipped duffel bag in a car, evidence inside the duffel bag must be suppressed). That is so because Article I, section 9, of the Oregon Constitution protects a person's separate privacy interests in a vehicle and in items within that vehicle. See, e.g., State v. Kruchek, 156 Or.App. 617, 629 n. 2, 969 P.2d 386 (1998), aff'd, 331 Or. 664, 20 P.3d 180 (2001) (Edmonds, J., concurring) (construing Jacobsen as holding that, "when an owner of an automobile consents to the general sweep of his vehicle, he nonetheless retains a privacy interest in the contents of a zipped duffel bag inside the vehicle"). Therefore, the police must justify a warrantless invasion of each separate privacy interest. When the police rely on consent to search a vehicle, that consent will justify a warrantless search of a closed container within the vehicle only when the scope of consent can be reasonably understood to extend to the container. See, e.g., Lamo...