State v. Huggett

• Decision Date: 27 May 2009
• Docket Number: C051879CR.,A130175 (Control).,A130305.,C050186CR.
• Citation: 209 P.3d 385,228 Or. App. 569
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Bruce Shannon HUGGETT, Defendant-Appellant.
• Court: Oregon Court of Appeals

209 P.3d 385

228 Or. App. 569

STATE of Oregon, Plaintiff-Respondent, v. Bruce Shannon HUGGETT, Defendant-Appellant.

C051879CR.

C050186CR.

A130175 (Control).

A130305.

Court of Appeals of Oregon.

Submitted on August 27, 2008.

Decided May 27, 2009.

Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, and Mary-Shannon Storey, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the briefs for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Senior Assistant Attorney General, filed the briefs for respondent.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and CARSON, Senior Judge.

LANDAU, P.J.

This is a consolidated appeal, involving two criminal cases. In Case Number A130175, defendant was convicted of one count of possession of a controlled substance, former ORS 475.992 (2003), renumbered as ORS 475.840 (2005). On appeal, he argues that the trial court erred in denying a motion to suppress evidence obtained during a traffic stop and in admitting a laboratory report at trial without requiring the state to produce the criminalist who prepared the report. In Case Number A130305, defendant had been placed on probation on an unrelated charge. The trial court, however, determined that defendant's conviction for possession of controlled substances constituted a violation of the terms of his probation. On appeal, defendant contends that a reversal of the possession conviction necessarily requires a reversal of the probation violation as well. We conclude that the trial court erred in denying the motion to suppress and reverse and remand both judgments on that basis. We do not reach the question whether the court erred in admitting the laboratory report.

The relevant facts are not in dispute for the purposes of the appeal. Around 10:00 p.m. on June 15, 2005, Washington County Sheriff's Deputy Andresen stopped defendant for riding a bicycle without a headlight. Andresen immediately recognized defendant as someone whom he previously had arrested for possession of a controlled substance and who was on probation for possession of methamphetamine. Andresen told defendant the reason for the stop, obtained defendant's identification card, and ran defendant's identification through dispatch to check for warrants. Andresen then asked defendant if he had any drugs in his possession; defendant replied that he did not. After dispatch reported that defendant was not the subject of any outstanding warrants, Andresen asked defendant for consent to search his person. Defendant replied that he "did mind kind of, but that he would empty his pockets." Before allowing him to do so, Andresen conducted a patdown for weapons but did not detect any. Andresen then said "okay," and defendant emptied his pockets, placing the contents on the hood of Andresen's patrol car.

Andresen noticed that defendant had not emptied a small change pocket and asked him what was in it. Defendant reached two fingers of his right hand into the pocket and told Andresen that he had emptied it. Andresen asked if he could check the pocket; defendant responded, "Go ahead." Andresen placed two fingers into the pocket and felt plastic at the bottom of it. He asked defendant what the object was and whether he could remove it from the pocket. Defendant replied that he did not know what the object was and that Andresen could remove it. Andresen did so and discovered that it was a plastic bag containing methamphetamine.

The trial court found that Andresen stopped defendant for a traffic violation and that, even before speaking to defendant, Andresen recognized him as a person whom Andresen had recently arrested for possession of methamphetamine and that Andresen "suspected that [defendant] might be possessing meth right then and there." The court also determined that a reasonable person would not have felt free to leave until he either was cited for the traffic violation or was told that he would not be cited. The court concluded, however, that, under ORS 810.410, Andresen was authorized to ask for consent to search defendant for contraband and that, in doing so, he did not unlawfully extend the initial stop. The court also concluded that, even assuming that Andresen extended the stop beyond a lawful time period, such extension was not the cause of his decision to ask to search defendant's pocket or of defendant's consent to the search, because, "from the moment the officer saw and recognized [defendant], the officer was looking for meth." The court denied defendant's motion to suppress.

The trial court found defendant guilty of possession of a controlled substance. Defendant agreed that his conduct constituted a violation of his probation. As previously described, the trial court entered a judgment of conviction for possession of a controlled substance and a judgment of probation violation.

In his first assignment of error on appeal, defendant argues that the trial court erred in denying his motion to suppress evidence discovered during the search of his pocket. Defendant acknowledges that Andresen's initial traffic stop was lawful. He argues that Andresen, by asking defendant for consent to search rather than issuing a citation or telling defendant that he was free to leave, unlawfully extended the initial stop and that, at that time, Andresen lacked reasonable suspicion that defendant posed a threat to the deputy or had committed an offense beyond the traffic offense. According to defendant, under State v. Kirkeby, 220 Or.App. 177, 185 P.3d 510, rev. allowed, 345 Or. 301, 194 P.3d 147 (2008), the extension of the initial stop was unlawful.

Defendant further argues that Andresen's serial requests for defendant's consent to search his person and, subsequently, his small change pocket constituted exploitation of an unlawful seizure. In particular, defendant contends that he consented to the first search based on Andresen's unlawful seizure and consented to the second search because he was aware that Andresen had observed his failure during the first search to empty his small change pocket. Thus, defendant argues, his consent to the second search was not made independently of the unlawful seizure or his consent to the first search, and he was entitled to suppression of the resulting evidence.

The state responds that Andresen permissibly sought defendant's consent to search during the course of a lawful traffic stop and that Andresen's request did not extend the duration of the stop because, at the time of the request, he had neither issued a citation for the traffic infraction nor exceeded the time reasonably required to do so. The state argues that, as in State v. Amaya, 176 Or. App. 35, 29 P.3d 1177 (2001), aff'd on other grounds, 336 Or. 616, 89 P.3d 1163 (2004), Andresen's actions resulting in defendant's consent to search constituted lawful questions posed during the course of a single, lawful stop. The state further argues that, even assuming that Andresen's request for consent to search unlawfully extended the stop, the challenged evidence was not discovered as a result of Andresen's exploitation of that illegality; rather, Andresen sought defendant's consent to search based on his knowledge of defendant's previous conviction for possession of methamphetamine and his knowledge that defendant was on probation for that crime. Thus, the state contends, there was no "but for" relationship between the claimed illegality and Andresen's request for consent. As to whether there was any relationship between the claimed illegality and defendant's giving of consent, the state points to the trial court's finding that, "[f]rom the get go, [defendant] was playing the cat and mouse game. * * * I don't find that anything that the officer did changed [defendant's] amenability to being searched."

Our resolution of defendant's assignment of error requires us to determine whether Andresen unlawfully extended the duration of the initial, lawful traffic stop and, if he did so, whether the challenged evidence was obtained through exploitation of that unlawful conduct. Determining whether a traffic stop was unlawfully extended is a fact-specific inquiry. See, e.g., State v. Raney, 215 Or.App. 339, 343, 168 P.3d 803 (2007), modified on other grounds on recons., 217 Or.App. 470, 175 P.3d 1024, rev. den., 344 Or. 671, 189 P.3d 26 (2008).

As we explained in State v. Rodgers, 219 Or.App. 366, 182 P.3d 209, rev. allowed, 345 Or. 301, 194 P.3d 147 (2008), questioning unrelated to the initial basis for a stop can lead to unlawful prolongation of the stop in two situations. In the first situation, an officer concludes a lawful stop (for example, by telling a person that he or she is free to leave) and then initiates a second stop by questioning the person about unrelated matters without reasonable suspicion of further criminal activity. Id. at 371, 182 P.3d 209. In the second situation, an officer, without letting the person know expressly or by implication that he or she is free to leave, detains the person beyond the time reasonably required to investigate the initial basis for the stop and to issue a citation, without the requisite reasonable suspicion. Id. at 371-72, 182 P.3d 209. In either case, the extension of a lawful stop is unlawful unless it is supported by reasonable suspicion of criminal activity. Id. at 372, 182 P.3d 209; see also State v. Broughton, 221 Or.App. 580, 587-88, 193 P.3d 978 (2008).

In this case, we conclude that Andresen extended the initial, lawful traffic stop beyond the time reasonably required to investigate and cite defendant for the traffic infraction. Nothing in the record indicates that, at the time that Andresen requested defendant's consent to search his person, he was awaiting the results of a records check, was waiting for defendant to provide him with items needed to continue the traffic stop, or was engaging in any other steps related...