State v. Grover

• Decision Date: 28 April 2004
• Citation: 90 P.3d 8,193 Or. App. 165
• Parties: STATE of Oregon, Respondent, v. Trevor Jeremiah GROVER, aka Trevor Ross-Grover, Appellant.
• Court: Oregon Court of Appeals

90 P.3d 8

193 Or. App. 165

STATE of Oregon, Respondent, v. Trevor Jeremiah GROVER, aka Trevor Ross-Grover, Appellant.

C 000533711; A111852.

Court of Appeals of Oregon.

Argued and Submitted March 31, 2003.

Decided April 28, 2004.

Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Acting Executive Director of Public Defense Services.

David J. Amesbury, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and SCHUMAN, Judge.¹

DEITS, C.J.

Defendant appeals a judgment of conviction for possession of a controlled substance. ORS 475.992. He assigns error to the trial court's denial of a motion to suppress. The evidence that he seeks to suppress consists of (1) statements that he made to an officer concerning his possession of methamphetamine and (2) methamphetamine found on his person by the officer. We reverse and remand.

In May 2000, at around 9:45 a.m., Officer Ronald Cash went to an apartment unit in Portland in response to reports of suspected drug activity at and near the apartment. He was invited inside by a woman who answered the apartment door. Cash had been at this same apartment a week earlier and had talked with a person who he knew to be an admitted drug user. The woman who answered the door told Cash that he could look around the apartment, but that she and her mother were the only persons in the apartment. Cash did so, accompanied by the woman. He entered a bedroom and eventually found two other occupants of the residence, one male and one female, and saw drug paraphernalia and drugs in plain sight. Cash recognized the items as contraband. He advised the three occupants of their Miranda rights and began to interview them.

As Cash began to interview the woman who had invited him into the apartment, he heard tapping on the bedroom window and someone calling a name. Cash testified that he could see defendant through the window and that he recognized him from previous encounters. Cash told defendant to "[c]ome around to the front door." The parties dispute whether defendant knew that this instruction came from a police officer. In any event, defendant complied. Defendant entered the apartment and walked down a hallway toward the bedroom where Cash was. Cash testified that, at this point, he was concerned for his safety because of the number of persons in the house, the recent discovery of drugs, and a recent report by defendant's mother that defendant had a weapon and had been threatening to kill her and himself. As defendant walked down the hall, Cash drew his gun and pointed it at defendant. Cash said, "I want you to raise your hands up. Keep your hands away from your body. I don't know whether you're armed or not, but keep your hands away from your body." After defendant raised his hands, Cash reholstered his gun. He instructed defendant to "turn around and go down on his knees." Cash then handcuffed defendant.

Following that action, Cash asked defendant some questions. The precise content of those questions is disputed by the parties. The state asserts on appeal that Cash asked defendant only whether he could pat him down and whether he had any weapons. Both defendant and Cash testified, however, that Cash also asked him whether he had any narcotics. According to Cash, defendant responded to his inquiry by giving him permission to pat him down and telling him that he had methamphetamine in his left coat pocket. Defendant testified that he said nothing in response to the officer's questions. Cash proceeded with a patdown search, and felt a hard object in defendant's left coat pocket. He removed the object, a "kind of a light, camel light tin can pack, cigarette size [containing] one clear plastic bindle with three smaller bindles * * * and then a larger clear plastic bindle with a small bindle inside * * *." The bindles contained methamphetamine. Cash then read defendant his Miranda rights. Cash also testified that he was familiar with defendant from several previous encounters.² He characterized the "first two or three contacts" as "pretty rough, but after that, [defendant] understood that we—we really care." Cash described defendant's demeanor during this arrest as "very cooperative." He characterized his previous law enforcement contact with defendant as "[m]inor things; possession of marijuana of less than an ounce, you know, cigarettes." However, as noted above, a week or two before the incident at issue in this case, Cash was involved in a call initiated by defendant's mother. She had reported that "[defendant] in fact had a weapon, and that he was going to kill himself and his mother." Responding to the call, Cash and others found the house in disarray, but they did not find defendant at the location.

Before trial, defendant moved to suppress all evidence obtained as a result of the alleged illegal search and seizure of the defendant on the grounds that (1) his confession was obtained as a result of unlawful interrogation and (2) the methamphetamine was obtained as a result of an unlawful search. The trial court denied the motion. The basis of the trial court's ruling is not entirely clear. The trial court found that Cash was reasonably concerned for his safety and that he had the authority to check defendant for weapons. The court also found that, from the time that defendant knocked on the window, Cash had probable cause to arrest defendant for involvement with the drugs found in the home. The trial court found that the patdown of defendant was not voluntary. It also held that defendant's statement that he had methamphetamine in his pocket was admissible because Cash had not asked him if he had any drugs and, therefore, defendant's statement was not the result of an interrogation. The trial court apparently also held, sua sponte, that the evidence of methamphetamine was admissible based on an inevitable discovery theory.

On appeal, defendant argues that the trial court erred in denying the motion to suppress. Defendant first contends that his statement to Cash that he had drugs in his possession must be suppressed because the statement was obtained as a result of interrogation by Cash that occurred while defendant was in custody and before he had been advised of his Miranda rights in violation of both the state and federal constitutions. See Or. Const., Art I, § 12; U.S. Const., Amend. V. Before initiating interrogation of a suspect in custody, police officers must give the suspect Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Smith, 310 Or. 1, 7, 791 P.2d 836 (1990). Whether Miranda warnings were required here depends on whether (1) defendant was in custody and (2) interrogation of defendant occurred. Both factors are disputed here.

We first address the issue of whether defendant was in police custody at the time that he told Cash that he had methamphetamine in his pocket. The Oregon Supreme Court has held that Article I, section 12, of the Oregon Constitution requires Miranda warnings when a suspect is in "full custody" or in a "setting that judges would and officers should recognize to be compelling." State v. Magee, 304 Or. 261, 265, 744 P.2d 250 (1987). Whether "full custody" or "compelling" circumstances are at issue, the relevant inquiry is "`how a reasonable [person] in the suspect's position would have understood his [or her] situation.'" State v. Dinsmore, 182 Or.App. 505, 514, 49 P.3d 830 (2002) (quoting State v. Wandle, 75 Or.App. 746, 750, 707 P.2d 1281 (1985),rev. den., 300 Or. 605, 717 P.2d 1182, cert. den., 479 U.S. 888, 107 S.Ct. 285, 93 L.Ed.2d 260 (1986)(brackets in Dinsmore)). This court has observed that "one would hardly dispute that a person handcuffed on the street or in his own home is in `full custody.'" State v. Warner, 181 Or.App. 622, 628, 47 P.3d 497, 501,rev. den., 335 Or. 42, 57 P.3d 581 (2002) (quoting Magee, 304 Or. at 265,744 P.2d 250). The federal test for determining whether a person is in full custody for Miranda purposes is similar. We explained the test in State v. Zelinka, 130 Or.App. 464, 882 P.2d 624 (1994),rev. den., 320 Or. 508, 888 P.2d 569 (1995), to be "whether a `reasonable person in defendant's situation would have understood himself [under the totality of the circumstances] to be in custody or under restraints comparable to those associated with a formal arrest.[']" Id. at 475, 882 P.2d 624 (citing Berkemer v. McCarty, 468 U.S. 420, 441-42, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

In this case, even if it could somehow be said that defendant was not in full police custody at the time that this encounter occurred, at a minimum, the circumstances were compelling and comparable to those associated with a formal arrest. Defendant was ordered at gunpoint by a police officer to raise his hands. After defendant complied, the officer reholstered the gun. At that time, however, defendant was ordered to turn around and drop to his knees, and he was handcuffed. A reasonable person in defendant's position would have understood that he or she was in compelling circumstances for purposes of Article I, section 12, and the Fifth Amendment.

We next address the question of whether defendant was "interrogated" before receiving Miranda warnings. The trial court found, at least implicitly, that Cash did not ask defendant if he had any drugs. The state argues that we are bound by the trial court's findings of fact on this point. It is true that we are bound by a determination of fact by a trial court "unless the evidence * * * is such that the trial court as finder of fact could decide a particular fact question in only one way." State v. Johnson, 335 Or. 511, 523, 73 P.3d 282 (2003); see also State v. Bryant, 191 Or.App. 620, 625, 83 P.3d 941 (2004)

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