State v. Kentopp
| Decision Date | 08 August 2012 |
| Docket Number | 094119FE; A145415. |
| Citation | 251 Or.App. 527,284 P.3d 564 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Wade Owen KENTOPP, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Peter Gartlan, Chief Defender, and David Sherbo–Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.
Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, arguing that the trial court erred in denying his motion to suppress evidence obtained during an unlawful extension of a lawful traffic stop. Reviewing the denial of the motion to suppress for legal error and deferring to the trial court's findings of historical fact if there is evidence to support them, State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993), we conclude that the evidence should have been suppressed, and, accordingly, we reverse and remand.
While he was sitting in his patrol car in the median of Interstate 5, Oregon State Trooper Jeter saw defendant driving a car without wearing his seatbelt and decided to stop him. Jeter caught up to defendant and turned on his patrol car's overhead lights. As defendant began pulling onto the shoulder of the road, Jeter could see him leaning over toward the floorboard by his feet. After the vehicles had stopped on the shoulder, Jeter approached defendant's car on the passenger side to tell defendant why he had stopped him. Almost immediately upon looking in the open passenger-side window, Jeter saw a small cosmetic purse by defendant's feet—where Jeter had seen defendant reaching while he was being pulled over. As Jeter began talking with him, defendant began visibly shaking, which struck Jeter as unusual. Jeter also noticed during the conversation that defendant had gray, rotting teeth, which Jeter associated with methamphetamine use.
Jeter eventually asked defendant for his driver's license, and defendant told him that he had left it at home and also that, because he was borrowing the car from his boss, he did not have any registration for the car or proof of insurance. In response, Jeter requested any type of identification, but defendant did not have any and, instead, told Jeter his name and birthday. He also gave Jeter his boss's name and telephone number, so that Jeter could call him to verify that defendant had permission to borrow the car, and informed Jeter, in response to his questioning, that the cosmetic purse belonged to his boss's wife.
At that point in the traffic stop, Jeter returned to his patrol car, requested a backup officer, and provided dispatch with defendant's name and birthday so that dispatch could run a “wants [check], [a] DMV check and a criminal history” on defendant. After calling dispatch, Jeter walked back to the passenger-side window of defendant's car and asked defendant if he would step out of the car and talk with him. Defendant agreed to get out of the car, but he began to roll the windows of the car up—with, according to Jeter, a panicked look on his face—and reached for the keys of the car. That caused Jeter to suspect that defendant was either going to lock himself in the car or that defendant was going to flee from the scene. Acting on his suspicion, Jeter quickly went to the driver-side door, which was slightly open, and put his leg against it. He told defendant that he thought defendant was up to something and asked for the car keys. Defendant refused to give him the keys, but Jeter took them out of defendant's hand anyway. Jeter and defendant then had a brief conversation at the car.1
After that conversation, and about 15 minutes into the stop, the backup officer, Oregon State Trooper Costanzo, arrived. Costanzo helped escort defendant to the front of Jeter's patrol car and stood nearby while Jeter patted defendant down for weapons and administered Miranda warnings to him.
Jeter, having failed to find any weapons on defendant, asked him whether there were drugs in the car, and defendant responded, “Not that I know of.” Defendant's response caused Jeter to request defendant's consent to search the car, but defendant refused. At that point, Jeter told Costanzo that defendant was not going to consent to the search, and Costanzo returned to his patrol car and retrieved his drug-sniffing dog from the back seat. As Costanzo was preparing to conduct a drug sniff around the car with the dog, Jeter told defendant that, if the dog alerted to his car, then the officers would search it. Shortly thereafter, the dog alerted to the driver's side of the car, leading Jeter to handcuff defendant—at which time defendant told him that there was a baggie of methamphetamine in the cosmetic purse that Jeter had seen. Jeter told Costanzo about defendant's admission, and Costanzo proceeded to search the car and found methamphetamine and drug paraphernalia.
Jeter cited defendant and released him—roughly 30 minutes after he had pulled defendant over—and called defendant's boss to ensure that the car was not stolen.2 Subsequently, the state charged defendant with one count of unlawful possession of methamphetamine.
Before trial, defendant moved under Article I, section 9, of the Oregon Constitution to suppress the drug evidence and his statement to Jeter that the purse contained methamphetamine.3 In support of his motion, defendant contended, among other things, that Jeter had unlawfully extended the traffic stop when, rather than pursuing the initial traffic violation— viz., failing to wear a seatbelt—he began to investigate whether defendantpossessed drugs without reasonable suspicion that he did.
The court denied the motion, concluding that,
Shortly thereafter, defendant entered a conditional guilty plea, reserving his right to appeal the court's denial of his suppression motion, and was convicted.
On appeal, defendant focuses, among other things, on a purported inadequacy of the record— viz., the lack of specific evidence about when Jeter received the results of defendant's records check from dispatch—and argues that this case should be remanded for a factual determination of when that happened. Moreover, defendant contends, in essence, that, if the state cannot prove that the officers' drug investigation occurred before Jeter received dispatch's response—and thus during an unavoidable lull in the traffic stop—then the state will have failed to prove that the officers acted lawfully in conducting the drug investigation. In response, the state proceeds from the premise that the traffic stop had been extended by the drug investigation and argues that the extension of the stop was lawful because Jeter had reasonable suspicion that defendant was not licensed to drive, had stolen the car that he was driving, and was about to flee the scene.4 Therefore, as framed by the parties' arguments at the suppression hearing and on appeal, the determinative issue in this case is whether the extension of the lawful traffic stop caused by Jeter's unrelated drug inquiry was justified by reasonable suspicion.5
The reasonable suspicion standard has a subjective component—that is, the officer must subjectively suspect that a person has committed a crime—and an objective component—that is, the officer must identify specific and articulable facts from which he or she formed an objectively reasonable suspicion that a person has committed or is about to commit a crime. State v. Mitchele, 240 Or.App. 86, 90–91, 251 P.3d 760 (2010). Here, because Jeter testified that he suspected that defendant was engaged in criminal activity, the reasonable suspicion inquiry hinges on the objective prong of the test: whether the specific and articulable facts in this case— viz., defendant's (1) furtive movements; (2) nervous demeanor; (3) gray, rotting teeth; (4) conduct consistent with trying to flee the scene; (5) failure to have registration and proof of insurance for the car that he was driving; and (6) statement that he was borrowing the car from another person—are sufficient to support a reasonable suspicion that defendant was committing the crime of drug possession.
We begin with the first three circumstances. As to defendant's furtive movements, those movements— viz., leaning down as he was being pulled over—do not, by themselves, amount to reasonable suspicion. See,...
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