State v. Kirkeby

• Decision Date: 21 May 2008
• Docket Number: CR030112.,A128263.
• Citation: 185 P.3d 510,220 Or. App. 177
• Parties: STATE of Oregon, Plaintiff-Appellant, Cross-Respondent, v. Anthony Douglas KIRKEBY, Defendant-Respondent, Cross-Appellant.
• Court: Oregon Court of Appeals

185 P.3d 510

220 Or. App. 177

STATE of Oregon, Plaintiff-Appellant, Cross-Respondent, v. Anthony Douglas KIRKEBY, Defendant-Respondent, Cross-Appellant.

CR030112.

A128263.

Court of Appeals of Oregon.

Argued and Submitted October 31, 2007.

Decided May 21, 2008.

Robert M. Atkinson, Assistant Attorney General, argued the cause for appellant-cross-respondent. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Shawn Wiley, Senior Deputy Public Defender, argued the cause for respondent-cross-appellant. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

ARMSTRONG, J.

In this criminal action, the state appeals the trial court's pretrial order suppressing drug evidence obtained during a consensual search of defendant's person during a traffic stop. ORS 138.060(1)(c). The issue presented to us is whether the police officer's request for consent to search defendant constituted an unlawful extension of the traffic stop in violation of Article I, section 9, of the Oregon Constitution.¹ Defendant cross-appeals the court's pretrial ruling that denied his motion to exclude evidence of a field test of drugs that were discovered as a result of the search. We affirm on appeal, State v. Rodgers, 219 Or.App. 366, 182 P.3d 209 (2008), and dismiss the cross-appeal as moot.

We review the lawfulness of searches and seizures for legal error and are bound by the trial court's findings of historical fact to the extent that those findings are supported by evidence in the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

The trial court found the facts to be those to which Deputy Sheriff Steele testified at the suppression hearing. On the afternoon of February 6, 2003, Steele saw defendant driving in downtown Willamina. He knew defendant by sight and also knew that defendant's driver license had been suspended. Steele contacted his dispatcher who confirmed that defendant had a suspended license. The dispatcher also reported that defendant did not have any outstanding arrest warrants. Based on the driving while suspended violation, ORS 811.175, Steele activated the overhead lights on his patrol car and stopped defendant. The overhead lights remained on throughout the duration of the encounter. Both defendant and Steele got out of their cars and walked toward one another. Steele testified that he was concerned for his safety because defendant had left his vehicle, which raises the risk of danger to an officer.

When Steele told defendant that he had stopped him for driving while suspended, defendant seemed surprised and handed him an Oregon driver license. Defendant was cooperative and "businesslike"; he did not act in a threatening or aggressive manner. Steele also indicated that, during his extensive history of prior contacts with defendant, defendant had never acted in a violent or threatening manner and had never pulled a weapon. At that point in the encounter, Steele had defendant's name, date of birth, and driver license number. He acknowledged that that was all the information that would be contained on a traffic citation; however, he testified that he "probably" did not have everything he needed to issue the citation, because he had not requested and received from defendant the vehicle registration and proof of insurance.

Steele explained to defendant that "the license that he was handing me was no good" and asked defendant if he had any weapons on him or in the car. Steele explained why he asked about the presence of weapons:

"Once again he was outside the car and it was pertinent. For officer safety I wanted to know if he had any weapons on him and there was a passenger still in the vehicle and so I was asking if there was any weapons in the vehicle also. Because really now I had two people and they were in different locations and I needed to kind of know what was going on and who had what if anything."

Defendant stated that he did not have any weapons. Steele then asked defendant for "consent to a pat search for weapons." The trial court found that approximately two minutes had elapsed between the initial stop and that request. Steele had not yet written defendant a citation. At some point during the encounter—although it is unclear precisely when—two additional officers arrived on the scene. Those officers were "watching the passenger" for Steele as he talked with defendant.

During the patdown search, Steele felt miscellaneous items in defendant's pockets. After the patdown, Steele "felt fairly confident that [defendant] didn't have any firearms on his person." He nonetheless asked defendant for consent to look at each of the items that he had felt, because he did not know what they were and "wanted to investigate further." For each item, consent was granted. Steele testified that defendant was not free to leave during the encounter; he also did not tell defendant that he was free not to cooperate. One of the items that Steele had felt was a small metal cylindrical container. Steele asked defendant if he could look inside it. Defendant first responded, "I just found that." Steele again asked for consent to look inside, and defendant agreed. Steele unscrewed the cap and saw two zip lock baggies containing a residual amount of a clear crystalline substance that appeared to be methamphetamine. At that point, Steele concluded that he had probable cause to believe that defendant had committed the crime of possession of a controlled substance, and he arrested defendant for that crime. At that point, approximately four to five minutes had elapsed from the beginning of the stop.

Defendant was thereafter charged with possession of a controlled substance, former ORS 475.992 (2003). Before trial, defendant moved to suppress the evidence obtained during the search. He argued that, although questions concerning the presence of weapons may be permitted under ORS 810.410(3)(d),² unless the officer has "a reasonable suspicion of an immediate threat of serious injury," that questioning—including asking for permission to search for weapons—constitutes an unlawful seizure in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. (Emphasis in original.) According to defendant, because there was no such threat in this case and because his consent was obtained as a result of the resulting unlawful seizure, the evidence must be suppressed. The state countered that the officer's request for consent to search defendant was not unlawful because the officer had legitimate officer safety concerns and because "it [was] a consent search, which the officer [was] authorized [under ORS 810.410(3)(e)] to conduct at that point." The state also argued that defendant was not unreasonably detained beyond "what was necessary" because the search occurred within a few minutes of the stop and during the course of the investigation of the traffic violation.

The trial court granted defendant's motion to suppress. The court first concluded that none of the officer's conduct violated ORS 810.410. However, relying on State v. Amaya, 336 Or. 616, 89 P.3d 1163 (2004), and State v. Ehret, 184 Or.App. 1, 55 P.3d 512 (2002), the court further concluded that Steele's request for consent to frisk defendant was nonetheless unlawful under Article I, section 9, because it amounted to a seizure of defendant without reasonable suspicion that defendant posed a danger to the officer or others or that he had committed a crime. The court reasoned that, although not every question by an officer that is unrelated to the reason for a traffic stop raises constitutional concerns, the request for consent to do a patdown, because it is "significantly beyond that accepted or ordinary social conduct intercourse" and would not "be perceived as non-offensive contact if it occurred between two ordinary citizens," unlawfully extended the duration of the traffic stop in violation of Article I, section 9, because it was not justified by a reasonable suspicion that defendant posed an immediate threat to the officer's safety. This appeal by the state followed.

The state does not argue on appeal that Steele had a "reasonable suspicion, based upon specific and articulable facts," that defendant posed "an immediate threat of serious physical injury to [him]." State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987); see also Amaya, 336 Or. at 631, 89 P.3d 1163. Rather, as was clarified at oral argument, the state's argument is that, at the time that he asked defendant for permission to pat him down, Steele was, in some general sense, "concerned with his safety"—a "concern" that did not rise to the constitutionally independent and sufficient Bates level—and, because of that concern, was authorized under ORS 810.410(3)(d) to make inquiries of defendant that were unrelated to the traffic stop, including asking him for consent to search his person. See ORS 810.410(3)(d) (authorizing inquiries, including an inquiry regarding the presence of weapons, to "ensure the safety of the officer, the person stopped or other persons present"). According to the state, the statute authorizes "officer safety requests like the one made here," made during the course of a traffic stop, even though they "likely will have the effect of extending the duration of the stop for some minimal period of time."³ In the state's view, as we understand it, any delay caused by the request in this case therefore did not amount to a seizure for purposes of Article I, section 9, but rather was a product of defendant's valid consent.

We turn to defendant's arguments on appeal. First, we note that defendant does not argue on appeal, as he did below, that Steele's initial question about the presence of weapons constituted a seizure under Article I, section 9. See State v....