State v. Jordan, 012121 ORCA, A169117

Docket Nº:A169117
Opinion Judge:ORTEGA, P. J.
Party Name:STATE OF OREGON, Plaintiff-Respondent, v. DONALD LEROY JORDAN, Defendant-Appellant.
Attorney:Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, fled t...
Judge Panel:Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.
Case Date:January 21, 2021
Court:Court of Appeals of Oregon

308 Or.App. 547

STATE OF OREGON, Plaintiff-Respondent,

v.

DONALD LEROY JORDAN, Defendant-Appellant.

A169117

Court of Appeals of Oregon

January 21, 2021

Submitted April 29, 2020

Lane County Circuit Court 18CR18044; Maurice K. Merten, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, fled the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

[308 Or.App. 548] ORTEGA, P. J.

Defendant was stopped by a police officer and eventually assented to a search, which led to the discovery of methamphetamine in his pants pocket. The officer cited defendant for methamphetamine possession, and the citation included a date for defendant to appear in court. Defendant failed to appear and ultimately was convicted of methamphetamine possession, ORS 475.894 (Count 1), and failure to appear on a criminal citation, ORS 133.076 (Count 2). In a single assignment of error, defendant challenges that judgment and argues that the trial court erred in denying his motion to suppress because his consent to the search was not voluntary. Defendant further contends that he is entitled to suppression of the methamphetamine that was discovered in the search and also the criminal citation that was issued, as evidence produced from the unlawful search. We conclude that defendant's consent to the search was not voluntary and that the methamphetamine evidence should be suppressed. However, we disagree that defendant is entitled to suppression of the criminal citation. We therefore reverse and remand on Count 1 and affirm on Count 2.

Detective Sites, the arresting officer, testified at the pretrial hearing on defendant's motion to suppress, and a dashboard-camera video which captured his interaction with defendant was admitted into evidence. We recite the evidence based on Sites's testimony at the hearing and the dash-cam video. The trial court relied on both Sites's testimony and the video, and the parties' dispute about defendant's voluntary consent centers on the conclusions that can be drawn from that evidence.

At around 1:30 a.m., Sites was patrolling downtown Eugene when he saw defendant, who was wearing a rain poncho and standing by a shopping cart in a covered residential parking garage posted with no-trespassing signs. The parking area is a known drug area, and residents regularly complained to police about drug activity. Sites, in uniform, stepped out of his patrol car, approached defendant, and informed him that he was trespassing. Sites knew defendant from previous contacts and noticed that defendant's demeanor was more agitated and tense than usual. Sites, [308 Or.App. 549] a trained Drug Recognition Expert, saw signs that defendant was impaired by a stimulant. He also noticed a syringe plunger cap at defendant's feet and believed that, in addition to having probable cause for trespassing, he had reasonable suspicion that defendant was in possession of drugs or drug paraphernalia.

Sites then asked defendant if he had any drugs on him and if Sites could search him. Defendant responded that he did not and searched his own pockets, which Sites took to be the behavior of someone trying to hide something. After 20 seconds had passed, Sites moved closer to and leaned down over defendant and positioned himself to begin searching while asking a second time, "All right, is it all right if I check you out really quick?" Defendant responded "Huh," and Sites, while still positioned to search, moved in even closer, leaned even further over defendant, and asked a third time, "Is it all right if I check you out really quick?" Defendant responded, "Like what?" As defendant pulled at the front of his poncho while Sites's hands were holding the poncho, Sites asked a fourth time, "Is it all right if I check?" Defendant responded that Sites could go ahead.1 Sites testified that defendant also "positioned himself to allow the search" but did not remember whether defendant lifted his arms. Sites began to search defendant and, while doing so, confronted defendant about a prior methamphetamine charge, which defendant denied having and they debated. Approximately 35 seconds into the search, defendant stated, "This is violating my rights." Sites did not believe that defendant had withdrawn his consent but suspended the search out of caution.

Sites continued to discuss with defendant his belief that defendant possessed drugs, pointing out the syringe plunger cap at defendant's feet. Defendant removed his poncho and jacket and displayed his arms to show Sites that he was not an IV drug user. Sites asked defendant a fifth time for his consent to search, and defendant responded, "No, I ain't fucking, no, you can arrest me then." Sites responded, [308 Or.App. 550] "Is that-if that's how you want to do it." Eventually, defendant said, "[Y]ou can search me if you want, but *** that's violating my rights." Up to that point, defendant sometimes joked with Sites, including indicating that if Sites took him to jail he wanted to take his TV with him. However, defendant also expressed frustration with Sites's requests for consent to search, pacing back and forth and declaring, "This is ridiculous, man, it is."

Sites then asked defendant what he had in his pockets, and defendant responded by holding his arms out to the side, patting his pockets, and then lifting his arms in the air. Sites then walked toward defendant while asking again, "Can I check?" Defendant then dropped his arms. Sites removed the glove from his right hand and walked toward defendant's backside while defendant turned his body away from Sites so that his back was facing Sites's front. Sites removed his glove because he interpreted defendant turning away from him2 and holding his "arms out" as giving nonverbal consent to search and because the glove was thick and removing it enables him to "check a smaller pocket, like the *** coin pocket." However, given that defendant had recently asserted that Sites was violating his rights, he continued to seek verbal confirmation to search. For about five seconds, Sites stood at defendant's backside, in his "immediate proximity," positioned to search and waiting for defendant's verbal consent until defendant nodded his head up and down. Sites asked, "Yeah?" and defendant responded, "Do it, do it." Sites did not have to reposition himself to reach into defendant's pockets, where he discovered methamphetamine. Sites served defendant with a citation to appear in court 22 days later, but defendant failed to appear. He ultimately was indicted by a grand jury for methamphetamine possession and failure to appear.

Before trial, defendant filed a motion to suppress "any and all evidence" from the search, arguing that [308 Or.App. 551] defendant had merely acquiesced, not voluntarily consented to the search. The trial court denied defendant's motion to suppress based on Sites's testimony and viewing the video, determining that "by words and conduct," defendant "clearly, voluntarily consented to the search of his person." Following a stipulated facts trial, defendant was convicted of possession of methamphetamine and failure to appear on a criminal citation.

On appeal, defendant argues that the circumstances surrounding his interaction with Sites, the words that Sites used, and defendant's responses all show that defendant did not voluntarily consent to the search. Specifically, defendant argues that Sites repeatedly accused him of trespassing, communicated that he suspected defendant of drug possession, and persistently questioned and asked to search defendant despite his repeated expressions of frustration with the encounter, including two complaints that Sites was violating his rights. Thus, according to defendant, the surrounding circumstances gave defendant "ample reason to believe that his arrest and search was likely if not inevitable." Further, defendant argues that his words and actions showed that he was not voluntarily cooperating with Sites, including his multiple attempts to limit and control the search, twice interrupting Sites's attempts to search him by telling him that Sites was violating his rights, telling Sites that he could search him only if he arrested him, and that, despite his initial resistance, he only reluctantly gave way following Sites's persistent conduct. Thus, defendant argues, the state failed to establish that he actually intended to give consent. See State v. Blair, 361 Or. 527, 535, 396 P.3d 908 (2017) (discussing "actual consent" as the "touchstone of the consent exception under Article I, section 9").

The state disagrees that Sites's words or conduct communicated that the search was inevitable or required and argues that, on the contrary, his words and conduct communicated that he would not search without defendant's consent. The state emphasizes that Sites's interaction with defendant was polite, respectful, and calm and that Sites did not raise his voice or draw his weapon and did not place defendant in handcuffs or in his patrol car or take any other actions that would arguably create a coercive atmosphere. [308 Or.App. 552] The state acknowledges that Sites "repeatedly asked for defendant's consent to search," but argues that Sites also "repeatedly made clear that he would not in fact search defendant without that consent." And, according to the state, defendant first gave nonverbal consent by "positioning himself so that Sites could pat him down" and then, before Sites began the search, gave his verbal consent when he told...

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