State v. Jackson

• Decision Date: 31 December 2014
• Docket Number: A147133.,090059CR
• Citation: 342 P.3d 119,268 Or.App. 139
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Shawn Michael JACKSON, Defendant–Appellant.
• Court: Oregon Court of Appeals

268 Or.App. 139

342 P.3d 119

STATE of Oregon, Plaintiff–Respondent

v.Shawn Michael JACKSON, Defendant–Appellant.

090059CR

A147133.

Court of Appeals of Oregon.

Argued and submitted on Dec. 18, 2012.

Decided Dec. 31, 2014.

David A. Hill, Eugene, argued the cause and filed the brief for appellant.

Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.

Opinion

DUNCAN, J.

In this criminal case, defendant appeals a judgment convicting him of unlawful delivery of marijuana, ORS 475.860(2) (Count 1), arguing that the trial court erred in denying his motion to suppress evidence because the evidence derived from a violation of his rights under Article I, section 9, of the Oregon Constitution.¹ Defendant contends that the state trooper who discovered the evidence did so only after unlawfully stopping defendant and exploiting that unlawful stop to gain defendant's consent to a search of the trunk of his car. We conclude that defendant was stopped when the state trooper told him that he wanted to talk to him about a traffic violation that he had seen defendant commit. Because that stop was not supported by probable cause and the evidence at issue derived from the unlawful stop, we reverse and remand.

We begin with the facts, which we state consistently with the trial court's findings. On the evening of February 24, 2009, defendant drove through downtown Lakeview in a white car with California license plates. State Trooper Hargis was conducting a traffic stop there, but after defendant went by, Hargis made a U turn and came up behind defendant's car. Hargis followed defendant into the parking lot of a service station on Highway 395 one-and-one-half miles north of Lakeview. Hargis intended to buy a cup of coffee at the station. Defendant pulled up to the gas pumps at the station, and Hargis parked his patrol vehicle behind and to the right of defendant's car. Defendant got out of his car, put some garbage into a garbage can, and walked around the side of the gas station's convenience store toward the restroom. Hargis got out of his car and looked in the windows of defendant's car. He did not see anything that caught his attention. Then Hargis walked into the convenience store and bought a cup of coffee.

Hargis was still in the convenience store when defendant came into the store after using the restroom. Defendant bought an energy drink and paid for his gas. Hargis approached defendant and told him that he wanted to talk to him about his failure to use a turn signal at a “Y” intersection between Lakeview and the gas station. Defendant told Hargis that he did signal, and Hargis told him that he had not signaled for 100 feet before the intersection. Then Hargis asked defendant where he was coming from, and defendant said that he had driven from Bend, where he lived, to Reno, Nevada, to visit his grandfather, who was ill, for the weekend and that he was returning to Bend. The car had California license plates because defendant had rented it for the trip. The conversation quickly turned to the topic of marijuana. At some point during the conversation, Hargis and defendant walked out of the convenience store side by side and stood on the sidewalk outside the store.

When he spoke with defendant, Hargis, who is a drug recognition expert, observed that defendant's eyes were bloodshot and watery, his speech was deliberate and slow, he repeated answers and questions, his pupils were dilated, and he had a “very relaxed demeanor.” Hargis asked defendant whether he was on any medications, and defendant replied that he was not. Then Hargis asked defendant when he had last smoked marijuana. Defendant said that it had been more than a year since he smoked marijuana and that he did not smoke marijuana.

Based on the indicators listed above, Hargis believed that defendant was under the influence of marijuana. At the hearing, Hargis explained that the indicators showed that defendant had smoked marijuana recently—within 24 to 48 hours—but that marijuana intoxication lasts only a few hours after the marijuana is smoked. Hargis believed that defendant might have marijuana for personal use in the car.

In addition to believing that defendant was under the influence of marijuana, Hargis believed that defendant was trafficking marijuana. That belief was based on the indicators of marijuana use listed above, the fact that defendant had rented a car for a short trip to Reno, defendant's implicit admission that he had used marijuana more than a year before, and Hargis's training, which indicated that marijuana traffickers are likely to use marijuana during their trafficking trips.

Hargis asked defendant how much marijuana he had in the car, and defendant denied having marijuana. After defendant refused a request by Hargis to search the car for marijuana, Hargis told defendant that he was under investigation for DUII. He requested defendant's driver's license and rental agreement, and defendant consented to perform field sobriety tests. Rather than going forward with the field sobriety tests, Hargis sought to search defendant's car for drugs. After several requests, defendant consented to a search. During the search, Hargis found approximately half a pound of marijuana in the trunk of defendant's car. During a subsequent search of defendant, Hargis also found $3,923 in cash.

Hargis then checked defendant's pulse, which was within the normal range, and gave defendant two nonstandard field sobriety tests, a counting test and an alphabet test. Defendant passed those tests, and Hargis did not perform any others. Hargis believed that defendant was not impaired, and he did not pursue the DUII investigation further.

Defendant was charged with unlawful delivery of marijuana, ORS 475.860(2), and unlawful possession of marijuana, ORS 475.864, and the state alleged a criminal forfeiture count, ORS 131.582, for the cash. Defendant moved to suppress the marijuana, the cash, and his statements, arguing that the stop and detention had violated his rights under Article I, section 9, in several particulars. He argued that he had been stopped at at least three points during his encounter with Hargis; that none of those stops was supported by probable cause of the traffic violation or reasonable suspicion of the crime that was the reason for the stop; and that, in two instances, Hargis had unlawfully extended the stop. Defendant contended that his consent to the search, the evidence discovered during the search, and his incriminating statements resulted from exploitation of each of those unlawful stops and extensions. He also argued that his consent to the search was involuntary.

The trial court denied the motion to suppress, concluding that, although Hargis talked to defendant about the traffic violation, that interaction was not a stop. The court also concluded that Hargis had reasonable suspicion that defendant was under the influence of marijuana and probable cause to believe that there was contraband in the car and that defendant consented to the search voluntarily. After a trial on stipulated facts, defendant was convicted of unlawful delivery of marijuana; the other two charges were dismissed. Defendant appeals, renewing his arguments that the trial court erred in denying his motion to suppress. We review the denial of a motion to suppress for errors of law. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005).

Article I, section 9, protects individuals against unreasonable searches and seizures. In order to be reasonable in the absence of a warrant, a search must fall within “one of the few specifically established and well-delineated exceptions to the warrant requirement.” State v. Davis, 295 Or. 227, 237, 666 P.2d 802 (1983) (internal quotation marks omitted). The state bears the burden of proving that an exception to the warrant requirement justified a warrantless search or seizure; if it fails to do so, evidence derived from the search or seizure must be excluded. Id.; Hall, 339 Or. at 21, 115 P.3d 908.

A search for which the police gain valid consent is excepted from the warrant requirement. Id. In order to be valid, consent must be voluntary. Hall, 339 Or. at 20, 115 P.3d 908. In addition, “Article I, section 9, may require exclusion of evidence from an otherwise valid consent search upon the ground that the defendant's consent derived from a preceding violation of the defendant's rights under that state constitutional provision.” Id. at 21, 115 P.3d 908. That is so because “the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if ‘the government's officers had stayed within the law.’ ” Id. at 24, 115 P.3d 908 (quoting Davis, 295 Or. at 234, 666 P.2d 802 ).

Defendant does not dispute that he consented to the search. However, he contends that his consent was derived from preceding violations of his rights under Article I, section 9. Thus, we must determine at what point during the encounter defendant was seized and whether that seizure was constitutionally permissible. We conclude that defendant was seized at the beginning of the encounter, when Hargis unambiguously told defendant that he had committed a traffic violation and that Hargis wanted to talk to him about it. Hargis lacked probable cause for that stop; hence, the stop was unlawful. We also conclude that defendant's consent to the search derived from that unlawful stop. Accordingly, we reverse and remand.

The Oregon Supreme Court has explained that there are three types of encounters between police officers and individuals:

“(1) ‘mere conversation,’ that is, noncoercive encounters that are not ‘seizures' and, thus, require no justification under Article I, section 9 ;

“(2) ‘stops,’ a type of seizure that involves a temporary restraint on a person's liberty and that violates

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