State v. Graves

• Jurisdiction: Oregon
• Citation: State v. Graves, 278 Or.App. 126, 373 P.3d 1197 (Or. App. 2016)
• Docket Number: A156987.,C140245CR
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Kelsy Lynn GRAVES, Defendant–Appellant.
• Court: Oregon Court of Appeals
• Decision Date: 04 May 2016

278 Or.App. 126

373 P.3d 1197

STATE of Oregon, Plaintiff–Respondent

v.Kelsy Lynn GRAVES, Defendant–Appellant.

C140245CR

A156987.

Court of Appeals of Oregon.

Argued and Submitted Jan. 27, 2016.

Decided May 4, 2016.

Shawn E. Wiley, Deputy Public Defender, argued the cause for appellant.With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Nani Apo, Assistant Attorney General, argued the cause for respondent.With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

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

SHORR, J.

In this criminal appeal, defendant makes two assignments of error.First, defendant assigns error to the trial court's denial of her motion to suppress evidence that the police obtained after an officer asked defendant to step out of her car, in which she had been travelling as a passenger, and asked her a series of questions about her criminal history.During that conversation, the officer saw a knife protruding from defendant's pant pocket.The officer took the knife from defendant for safety reasons and discovered that it was a spring-assisted knife that cannot legally be concealed on a person.Defendant was then arrested.During a patdown search of defendant and a search of her car incident to her arrest, the police found illegal drugs, drug packaging, digital scales, and other drug paraphernalia.Defendant was ultimately convicted of several counts relating to the unlawful delivery and possession of heroin and methamphetamine as well as one count of being a felon in possession of a restricted weapon.Second, defendant assigns error to the trial court's imposition of attorney fees when the record is silent as to whether she is capable of paying those fees.

Defendant first argues that the police officer unlawfully seized her without reasonable suspicion that she had committed a crime when he asked her to get out of her car and questioned her, which resulted in the discovery of incriminating evidence.We conclude that defendant was not seized when she was asked to leave her car or when the officer asked her questions by his patrol car and, therefore, the trial court did not err in denying the motion to suppress.

Defendant next contends that the trial court erred in ordering that she pay $1,352 for her court-appointed attorney fees.Defendant, who did not object to the order, argues that the court committed plain error in imposing the fees because the record is silent as to defendant's ability to pay them.With respect to that assignment of error, we conclude that the trial court plainly erred in imposing $1,352 in attorney fees, and we exercise our discretion to correct the error.Accordingly, we reverse the portion of the judgment imposing attorney fees and otherwise affirm.

We begin our analysis with our standard of review.In reviewing a denial of a motion to suppress, we are bound by the trial court's historical findings of facts if they are supported by evidence in the record.State v. Holdorf,355 Or. 812, 814, 333 P.3d 982(2014).“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.”State v. Ehly,317 Or. 66, 75, 854 P.2d 421(1993)(citation omitted).We are not bound by the trial court's constitutional conclusions, but determine whether the court correctly applied the law to the historical facts.State v. Barmon,67 Or.App. 369, 374, 679 P.2d 888, rev. den.,297 Or. 227, 683 P.2d 91(1984).

Applying that standard of review, we turn to the trial court's findings of historical fact, which are undisputed on appeal.On January 28, 2014, defendant was riding as a passenger in her own car.Officer Haugen observed what he believed to be a traffic infraction committed by the driver and stopped the car.Haugen, who was accompanied by a reserve officer, went to the driver's side of the vehicle and spoke with the driver about the traffic violation.Defendant, who was in the passenger seat, told Haugen that she was the registered owner of the car and offered to show him her license, which Haugen declined.While speaking with the driver and defendant, Haugen noticed that they both had a “pale kind of sickly” look on their faces, stained fingers, and sores on their hands.Based on Haugen's experience, those signs were indicative of heroin use.

Haugen returned to his patrol car and, shortly after starting to prepare the citation for the driver, called for a canine unit, handed the citation off to the reserve officer to complete, and returned to the car, this time walking up to the passenger side to speak with defendant.Haugen asked defendant to step out of the car, and she did.He then asked her or directed her to walk to a point in front of his patrol car, where he began to question her.Haugen asked defendant whether she had a criminal history and whether she was on parole or probation.Defendant told Haugen that she was recently out of prison for a drug-trafficking crime, which Haugen understood to be a felony.At one point, Haugen asked defendant for consent to search her car, which she refused.Throughout the conversation, Haugen did not show any physical force, place defendant in handcuffs, or tell defendant that she was not free to leave.The trial court found credible Haugen's testimony that defendant was cooperative and engaged in easygoing conversation at this point.

During the conversation, however, defendant repeatedly touched a location on her pant pocket, a repetitive motion that Haugen associated with drug use and described as “indexing.”Defendant's behavior drew Haugen's attention to that area of her clothing.Later in the conversation, defendant moved in a manner that caused her jacket or shirt to lift up, and Haugen saw a knife in that pocket.Out of a concern for his safety, Haugen reached out and took the knife, which he then noticed was spring loaded.Haugen knew that defendant was not lawfully permitted to possess a concealed, spring-loaded knife.Haugen believed he had probable cause to arrest defendant at that point.After backup officers arrived, defendant was arrested and read her Miranda rights.Despite initially indicating that she did not want to talk to police, defendant later voluntarily spoke with police after being re-read her Miranda rights.In patting down defendant and searching defendant's car incident to her arrest, the officers found, among other things, heroin, methamphetamine, drug scales, and drug paraphernalia.

As noted, defendant moved to suppress the evidence of the illegal drugs, the drug-related items, and incriminating statements she made to officers about those items after her arrest.Defendant argued to the trial court that Haugen seized her when he asked her to get out of her car, directed her toward the front of his patrol car, and began asking her questions about her parole status and criminal history.Because Haugen lacked reasonable suspicion that defendant was engaged in criminal activity, defendant argued, the stop was unlawful, and all evidence discovered after that point should be excluded.

The trial court denied defendant's motion, concluding that defendant got out of her car and spoke with Haugen of her own accord and, therefore, was not seized up until the point that Haugen saw her knife and removed it from her pocket.The trial court further concluded that Haugen had an objectively reasonable safety concern that allowed him to take the knife, and, when he noticed that the knife appeared to be spring loaded, Haugen had probable cause to arrest defendant.Following a bench trial, the trial court dismissed one of the counts against defendant, convicted her on the remaining counts, and sentenced defendant to a total of 36 months in prison.

On appeal, defendant reprises the argument she made below that, under Article I, section 9, of the Oregon Constitution, she was unlawfully seized by Haugen when he asked her to get out of her car and walk to his patrol car, and questioned her about her parole status and criminal history.Defendant argues that a reasonable person under those circumstances would feel that she was under criminal investigation and, therefore, would not feel free to end the encounter and leave.Because nothing that Haugen had observed up to that point gave him reasonable suspicion to seize defendant, defendant argues, the stop was unlawful.

The state argues on appeal that Haugen did not seize defendant until he took the knife from her pocket, at which point he had a permissible safety concern to do so.Everything prior to that, the state argues, was consensual conversation that did not rise to the level of a seizure and, accordingly, the trial court did not err in denying her motion to suppress.

We begin our analysis with Article I, section 9, which guarantees individuals the right to be “secure in their persons * * * against unreasonable search, or seizure.”The Supreme Court has recognized that, “out of the broad range of potential encounters between police and citizens, only some implicate the prohibition in Article I, section 9, against unreasonable ‘seizures.’ ”State v. Ashbaugh,349 Or. 297, 308, 244 P.3d 360(2010).In considering what amounts to a seizure, the Supreme Court has roughly divided that broad range of police-citizen encounters into three categories.Id. at 308–09, 244 P.3d 360.The first is “ ‘mere conversation,’ that is, noncoercive encounters that are not ‘seizures' and, thus, require no justification under Article I, section 9.”Id. at 308, 244 P.3d 360.

The second is termed “ ‘stops,’ a type of seizure that involves a temporary restraint on a person's liberty and that violates Article I, section 9, unless justified by, for example, necessities of a safety emergency or by reasonable suspicion that...