State v. Faubion, 09FE1146SF; A147053.
| Decision Date | 14 August 2013 |
| Docket Number | 09FE1146SF; A147053. |
| Citation | 258 Or.App. 184,308 P.3d 337 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Richard A. FAUBION, aka Richard Faubion, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief was John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before ORTEGA, Presiding Judge, and HASELTON, Chief Judge, and DE MUNIZ, Senior Judge.
In this criminal case, defendant entered a conditional guilty plea 1 to a charge of unlawful possession of methamphetamine, ORS 475.894, following the trial court's denial of a motion to suppress evidence obtained during a traffic stop. Defendant appeals the judgment of conviction and assigns error to the trial court's denial of his motion to suppress. The issues in this case are when during the police officer's contact with defendant was defendant “seized” and whether the officer had reasonable suspicion to investigate the crimes of minor in possession of alcohol and furnishing alcohol to a minor when defendant was seized. As explained below, we assume without deciding that defendant was seized when an officer asked him to identify himself, and we conclude that the officer had reasonable suspicion at that time. Therefore, we affirm the judgment.
On September 17, 2009, at 9:50 p.m., Deschutes County deputy sheriff Jackson observed a vehicle stopped on remote county land marked “[d]ay use only park, no camping.” Jackson knew that the area was frequented by people using drugs and alcohol. As Jackson approached in his marked patrol car and began to pass the parked vehicle, the driver turned on the vehicle's lights and drove away. Jackson turned his patrol car around to follow the vehicle and, as he followed, noticed that the registration stickers and Oregon identifier on the license plate were covered by the plate holder. Jackson initiated a traffic stop because the vehicle's plate was obscured.2 He noted that there were four occupants in the car.
Jackson approached the vehicle, explained to the driver the basis for the stop, and requested her identifying information. The driver provided Jackson with her registration and insurance information but did not have her driver's license with her. She orally provided her name and date of birth, which indicated that she was 18 years old. While talking to the driver, Jackson detected a smell of alcohol coming from the interior of the car but was unable to determine whether the driver had consumed alcohol. Jackson also determined that the front-seat passenger appeared to be under the influence of a stimulant. According to Jackson, each occupant of the vehicle appeared to be between the ages of 18 and 25.
Jackson returned to his vehicle to perform a warrant and status check on the driver. Because of the remote location of the stop, Jackson also requested that a backup officer respond to the scene. While Jackson was standing outside his police vehicle waiting for the results of the identification verification and warrants check, he observed defendant, who was in the backseat, and the front-seat passenger “making motions below the rear windshield so I could not see, as if they were moving items to and from each other.” Jackson believed that defendant and the front-seat passenger were “trying to disguise movements” that “looked like they were placing or pushing items back and forth to each other.”
The driver's warrant check came back clear and indicated that she had a valid driver's license. Jackson decided to write the driver a citation for the obscured license plate; however, he did not write the citation at that time. Instead, Jackson determined that, because, among other things, the driver was 18 years old, there was a smell of alcohol emanating from the vehicle, one passenger appeared to be under the influence of stimulants, defendant and another passenger apparently had passed some items back and forth while attempting to hide those motions from him, and all of the occupants of the vehicle appeared to be between the ages of 18 and 25, he had reasonable suspicion to investigate the violation of minor in possession of alcohol 3 and the crime of furnishing alcohol to a minor.4
Jackson returned to the vehicle to investigate whether there was a possible minor in possession of alcohol or an adult who had or was furnishing alcohol to a minor. He asked the other occupants in the vehicle for their names and dates of birth to ensure that they were at least 21 years of age. In response, the three passengers either gave Jackson an identification card or orally provided their names and dates of birth. Defendant orally provided his name and date of birth. The information provided to Jackson indicated that the front-seat passenger was 22 years old, that defendant was 23 years old, and that the other backseat passenger was 25 years old. As Jackson obtained that information, he smelled alcohol on defendant's breath.
A backup officer, Huey, arrived while Jackson was speaking to the passengers. Jackson returned to his vehicle and ran all three passengers' names to confirm their ages and identities. In doing so, Jackson learned that defendant was on felony probation for possession of marijuana and that the terms of defendant's probation included a no-alcohol clause.
Next, Jackson requested that a canine officer respond to the scene because it appeared that one passenger in the vehicle was under the influence of stimulants, another passenger, defendant, was on felony probation for drug possession, those two passengers had been making motions as though passing objects back and forth between one another while Jackson checked the driver's information, and the vehicle had been parked in an area known to be frequented by persons using drugs and alcohol, all of which led Jackson to suspect that there could be drugs in the car. After requesting a canine officer, Jackson returned to the vehicle and asked defendant to step out of the car.
At some point during those events, Jackson called defendant's probation officer and advised him that defendant had been consuming alcohol. The probation officer told Jackson to release defendant and have him report to the probation officer in the morning. Jackson continued to smell alcohol on defendant's breath once defendant was out of and away from the vehicle. Jackson patted down defendant's waistband to check for weapons and did not discover any. The canine officer, Officer Fraker, arrived at the scene shortly before the weapons frisk and observed the frisk. Fraker then deployed his drug dog. The dog alerted on the vehicle, indicating that there were drugs present, at the front passenger side of the vehicle. At that time, the officers asked the other occupants of the vehicle to step outside so that the vehicle could be searched.
A search of the vehicle revealed two partially consumed bottles of alcohol, but no drugs. One bottle was found under the driver's seat, with the cap end protruding several inches from under the seat at the place where defendant had been sitting. The other bottle was found inside a purse on the backseat of the vehicle behind the front passenger seat. After the bottles of alcohol were found, Jackson returned to his vehicle where defendant had been waiting and advised defendant of his Miranda rights.
Fraker requested permission to search defendant because, based on his training and experience, he believed that, during Jackson's earlier frisk, defendant may have been concealing a weapon. Defendant consented and emphasized that Fraker could check his pockets. For safety reasons, Fraker asked defendant to separate his legs for the pat down, and defendant separated his legs about three inches. Fraker noticed that defendant was shaking uncontrollably. Fraker asked defendant again to separate his legs, and defendant moved his legs an inch or two further apart. Fraker asked defendant a third time to separate his legs, and defendant pointed his toes outward without actually moving his legs. According to Fraker, at this point in the weapons frisk, he demanded that defendant separate his legs “[b]ecause now I have got extreme fear of a weapon and I can't even-I am in a position where I can't even let go of him because I have got a situation where I know I have got an immediate threat.” Because defendant's evasive actions led Fraker to believe that he was concealing an item that posed a risk to officer safety, Fraker testified that at that point he needed to complete the pat down with or without defendant's permission.
Defendant complied with Fraker's demand and spread his feet wide apart. At that time, a scale fell out of his left pant leg. The scale landed on the ground and bounced away from defendant. Fraker was concerned that defendant may have had an item that posed a threat to officer safety. He asked defendant whether there were drugs in his right sock and shoe area. Fraker asked three times, and defendant did not respond. Eventually, defendant indicated that there were baggies in his right shoe, but that they did not belong to him. Defendant later stated that the baggies were his.
Fraker continued to pat defendant down and felt a methamphetamine pipe in defendant's sock. Fraker then permitted defendant to remove the items, which included the pipe and three baggies, from his shoe and sock. The baggies contained a white substance that Fraker believed to be methamphetamine.
On appeal, defendant asserts that the evidence (methamphetamine) obtained when defendant was removed from the vehicle and searched should have been suppressed under Article I, section 9, of the Oregon Constitution. According to defendant, he was seized when Jackson requested his identifying...
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