State v. Knapp

• Decision Date: 24 October 2012
• Docket Number: A145261.,C100016CR, C090068CR, C091133CR; A145259 (Control), A145260
• Citation: 253 Or.App. 151,290 P.3d 816
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Keylan Franklin KNAPP, Defendant–Appellant.
• Court: Oregon Court of Appeals

253 Or.App. 151
290 P.3d 816

STATE of Oregon, Plaintiff–Respondent,
v.
Keylan Franklin KNAPP, Defendant–Appellant.

C100016CR, C090068CR, C091133CR; A145259 (Control), A145260, A145261.

Court of Appeals of Oregon.

Argued and Submitted Jan. 31, 2012.
Decided Oct. 24, 2012.

[290 P.3d 817]

Ingrid A. MacFarlane, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief was John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

DUNCAN, J.

[253 Or.App. 152]Defendant was found guilty of unlawful possession of methamphetamine in one case and had his probation revoked in two other cases based, in part, on having unlawfully possessed methamphetamine. Defendant asserts that the trial court in the possession case should have granted his motion to suppress the methamphetamine, and thus his conviction, as well as his probation revocations, should be reversed. For the reasons set forth below, we reverse and remand.

In reviewing a trial court's decision on a motion to suppress, we view the record, and all the inferences that it will support, in the light most favorable to the trial court's findings, if there is constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 74–75, 854 P.2d 421 (1993). In this case, the only pertinent facts, derived from the testimony of the police officer who stopped the vehicle in which defendant was a passenger, are straightforward and uncontroverted.

Officer Mace of the Hillsboro Police Department observed a vehicle in which the brake lights were not functioning and the passenger's seat belt was not fastened. He initiated a traffic stop of the vehicle to investigate both traffic violations. He sought and received identification from Beardall, the driver, and defendant, the passenger. Defendant told Mace that he was on parole for armed robbery. Mace returned to his patrol car with identification from both Beardall and defendant, and he called in the information to dispatch. Mace also inquired as to whether he was required to tow the vehicle, given the problem with the brake lights. Dispatch informed him that the driver was on probation and that defendant had “a caution for Armed Robbery and some other things.” For officer safety reasons, Mace requested backup before proceeding further with the traffic stop. Within a few minutes, Officer Hubbenette arrived. Mace received word that he did not need to tow the vehicle. Mace returned to the vehicle and asked Beardall for consent to search the vehicle, and Beardall consented. At Mace's request, Beardall and defendant got out of the vehicle and stood with Hubenette near the patrol car while Mace [253 Or.App. 153]searched the vehicle. Mace retained defendant's identification throughout that time. Mace found methamphetamine in the car near where defendant had been sitting and arrested defendant.

Defendant moved to suppress evidence of the methamphetamine found in the vehicle, arguing that he had been unconstitutionally detained and that the evidence was obtained as a result of that illegality. Or. Const., Art. I, § 9.¹ Defendant argued, and the trial court apparently agreed—as do we—that defendant initially was lawfully stopped for the seatbelt infraction, but that the stop of defendant became unlawful at the point when Mace ceased processing defendant's seatbelt infraction and instead asked Beardall to consent to a search of the car. See generally State v. Leino, 248 Or.App. 121, 124, 273 P.3d 228 (2012) ( Article I, section 9, is “not implicated if an inquiry unrelated to a traffic stop occurs during a routine stop but does not delay it, that is, if it occurs during an ‘unavoidable

[290 P.3d 818]

lull’ in the investigation”). In this case, Mace sought consent to search the car instead of proceeding with the traffic infraction, and he did not do so during an “unavoidable lull” in the traffic stop.

The state argued to the trial court, however, that the evidence was derived not from the stop of defendant, but as a result of Beardall's consent to the search of the vehicle. Moreover, the state asserted, defendant claimed no possessory or privacy right as to the vehicle. The court agreed with the state and noted that, to the extent that defendant implied that the traffic stop was unlawful as to Beardall as well as to himself, Beardall might have a good argument in favor of suppression given that it was his consent to the search of his car that led to the discovery of the disputed evidence, but defendant did not. The court therefore denied the motion to suppress, and defendant subsequently was convicted of possession of a controlled substance.

On appeal, defendant argues that the trial court reached the wrong conclusion. He notes that he was stopped for the seatbelt infraction, but further asserts that he was [253 Or.App. 154]stopped in his capacity as a passenger in a vehicle in which the driver had been stopped. For that proposition, he cites State v. Presley, 181 Or.App. 296, 300, 46 P.3d 212 (2002) (“A stop of a driver is a stop of a passenger, and the limitations on the officer's authority therefore apply to passengers as well as to the driver.”) He asserts that he was entitled to suppression based on the theory that evidence discovered during a consent search is inadmissible if the consent is the product of illegal police conduct, regardless of whether the defendant is the one who consented to the search, citing State v. Ray, 179 Or.App. 397, 40 P.3d 528 (2002). The state rejoins that defendant may not seek suppression of evidence on the ground that the police discovered evidence as a result of a violation of another person's constitutional rights, citing State v. Makuch/Riesterer, 340 Or. 658, 136 P.3d 35 (2006), and State v. Tanner, 304 Or. 312, 745 P.2d 757 (1987).

Thus, the starting point of our analysis concerns the threshold question of whether we are to look solely to the stop of defendant, or whether we also look at the stop of the driver, in analyzing the Article I, section 9, issue. The cases on which defendant relies— Presley,Ray, and their predecessor, State v. Dominguez–Martinez, 321 Or. 206, 895 P.2d 306 (1995)—concerned whether a police officer exceeded the statutory authority granted by an earlier version of ORS 810.410—a version that has since been superseded—by seeking consent for a search during a traffic stop.² It is undisputed that there is no such statutory issue here: Defendant is asserting a violation of Article I, section 9, of the Oregon Constitution. More importantly, however, case law concerning situations in which a passenger in a stopped car seeks suppression on constitutional grounds makes it clear that those cases do not govern the analysis. Rather, in cases such as State v. Lantzsch, 244 Or.App. 330, 260 P.3d 662 (2011), State v. Courtney, 242 Or.App. 321, 255 P.3d 577,rev. den.,351 Or. 401, 268 P.3d 152 (2011), and State v. Jones, 241 Or.App. 597, 250 P.3d 452 (2011), we analyzed whether a passenger had been unlawfully seized during the course of a traffic stop as a question separate from the stop of the driver.³

[290 P.3d 819]

[253 Or.App. 155]That premise does not, however, lead us to the conclusion that the state would have us draw—that defendant cannot pursue a constitutional argument under these circumstances because he had no protected possessory or privacy interest in the vehicle. In Tanner, on which the state relies, the defendant had entrusted stolen goods to the Bests, which were discovered when police searched the Best residence. 304 Or. at 314, 745 P.2d 757. The defendant asserted that the stolen goods should be suppressed because the warrant was invalid. The state responded that, regardless of the validity of the warrant, the search did not violate the constitutional rights of the defendant. Id. The court concluded that “the entrustment of an effect to another is sufficient to establish a privacy interest that is violated when the effect is discovered through an unlawful search.” Id. at 323, 745 P.2d 757.Cf.Makuch/Riesterer, 340 Or. at 670, 136 P.3d 35 (Holding that the defendants had no possessory or privacy interests in their attorney's home as they did not own it, rent it or store possessions in it: “evidence may be suppressed only if police invaded the personal rights of the person who seeks suppression; the violation of someone else's rights is not enough.”)

Unlike in Makuch/Riesterer, defendant here has established that his personal rights were invaded. That is, he has established that he was unlawfully detained at the point during the traffic stop when Mace ceased processing the citation and, instead, sought consent from Beardall to search the vehicle. Leino, 248 Or.App. at 124, 273 P.3d 228 (an officer may not inquire about unrelated matters as an alternative to going forward with processing a traffic infraction). At the time Mace asked Beardall for consent, Mace had heard back from dispatch and had all the information he needed to continue to process defendant's seat belt infraction or release defendant. But, [253 Or.App. 156]instead, Mace retained defendant's identification and asked Beardall for consent. The state does not argue that Mace's request for consent occurred during an unavoidable lull in the processing of defendant's seat belt violation or that Mace had any legitimate reason for not moving forward with that processing. See, e.g., State v. Berry, 232 Or.App. 612, 616–17, 222 P.3d 758 (2009), rev. dismissed,348 Or. 71, 228 P.3d 582 (2010) (the state has the burden of proving that an investigation of an unrelated criminal matter occurred during an unavoidable lull).

The question, then, is whether defendant is entitled to suppression of the disputed evidence based...