State v. Lowell

• Decision Date: 09 December 2015
• Docket Number: A151865.,11C50888
• Citation: 275 Or.App. 365,364 P.3d 34
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Vincent Michael LOWELL, Defendant–Appellant.
• Court: Oregon Court of Appeals

275 Or.App. 365

364 P.3d 34

STATE of Oregon, Plaintiff–Respondent,

v.Vincent Michael LOWELL, Defendant–Appellant.

11C50888

A151865.

Court of Appeals of Oregon.

Argued and Submitted April 25, 2014.

Decided Dec. 9, 2015.

Robin A. Jones, Deputy Public Defender, argued the cause for appellant. With her on the brief 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 were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

NAKAMOTO, J.

This criminal appeal concerns defendant's motion to suppress evidence. After defendant crashed his bicycle into a car and was injured, he separately interacted with two police officers. A police officer at the accident scene ordered him to go to the hospital. A second police officer, who was investigating the accident, arrived after defendant requested treatment at the hospital, entered his treatment room, and smelled marijuana. That officer asked for and obtained defendant's consent to search the backpack and discovered in it marijuana and other related paraphernalia, including a digital scale. The officer informed defendant of his Miranda rights, and defendant admitted that he regularly sold marijuana. Then the officer seized defendant's cell phone and reviewed incriminating text messages. Ultimately, defendant was prosecuted and unsuccessfully moved to suppress the evidence from his backpack, his statements, and the text messages. Defendant was then convicted of one count of delivery of marijuana for consideration, ORS 475.860(2)(a), based on a conditional guilty plea.

In three combined assignments of error, defendant challenges the trial court's denial of his motion to suppress the evidence. He argues that the police seized him by compelling him to seek medical treatment at the hospital and, in doing so, violated his right to be free from unreasonable seizures under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Based on that premise, defendant argues that all evidence obtained after the bicycle crash was unlawfully obtained and, therefore, should have been suppressed. We conclude that, regardless of whether defendant was unlawfully seized initially—an issue we do not decide—the police did not exploit that seizure to later obtain the physical evidence found in his backpack or his incriminating statements. As for defendant's text messages on his cell phone, in light of the United States Supreme Court's decision in Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), the trial court incorrectly analyzed suppression of the text messages under the "search incident to arrest" exception to the warrant requirement under the Fourth Amendment. Accordingly, we conclude that the trial court did not err when it admitted the physical evidence or defendant's statements, but did err when it admitted the text messages. Because we do not engage in harmless error analysis on an appeal from a conviction based on a conditional guilty plea, we reverse and remand.

I. FACTS

When reviewing a trial court's denial of a motion to suppress, we are bound by the trial court's findings of historical fact provided that there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). If the trial court did not make detailed findings on disputed issues of historical fact, we infer that the trial court made findings consistent with its ultimate conclusion. State v. Watson, 353 Or. 768, 769, 305 P.3d 94 (2013). We present the following facts with that standard in mind.

A. The Alleged Seizure of Defendant at the Accident Scene

While riding his bicycle the wrong way in a bicycle lane, defendant crashed into a car and flew over the handlebars. Defendant hit the vehicle with enough force to break his bicycle at the handlebars, rendering it inoperable. He suffered a cut on his forehead, and he had blood on his face.

Paramedics and Officer Riddle were the first responders at the accident. Riddle, who was ending his shift, chose to respond in case emergency medical assistance was necessary; he knew that other officers beginning their shifts would be dispatched to actually investigate the accident. The paramedics tried to persuade defendant that he needed to go to the hospital, but he did not have medical insurance and refused. The paramedics enlisted Riddle's help in persuading defendant to seek medical treatment.

Riddle tried to "convince" defendant that he needed to go to the hospital. Riddle was concerned that defendant was injured, based on the paramedics' statements, the blood running down defendant's face, and his "common sense" that bicycle-car crashes can result in serious injuries to bicyclists. He also believed that defendant, who "looked very young," was a "kid," and he was concerned about his "community care taking" "obligation" to help an injured minor, although he did not inquire as to defendant's age. Riddle testified that he stressed his concern during his conversation with defendant: "[The paramedics] are concerned about you. I am concerned about you. You need to go to the hospital." He testified, "I essentially gave him a choice. I said, you can voluntarily go down with the paramedics, or I will take you to the hospital, but you need medical treatment."

Their conversation lasted one to two minutes. Riddle described his tone as "encouraging" and "out of concern and convincing." He testified that he routinely interacts with injured community members who are reluctant to seek medical treatment because of the expense. He tries to reassure those people that they "are not in trouble" and that, even though medical treatment is expensive, their immediate health is more important than the cost. Riddle characterized his conversation with defendant as typical of those conversations, which he perceived to be part of his "community care taking" obligation to "force people to go get medical treatment" in certain circumstances. Riddle and defendant never discussed a criminal investigation, and he was "completely shocked" when he later received the subpoena in this case. In his words, "I thought it was a kid riding a bicycle that got hit by a car and needed to go to the hospital. And that was the end of it."

Defendant had decided to go to the hospital and was in the ambulance when the second officer, Officer Folkerte, arrived. Folkerte took over as the primary officer at the scene because Riddle's shift was ending. Folkerte spoke with Riddle regarding the details of the crash and learned that defendant would be transported to the hospital in the ambulance.

At the accident scene, Folkerte began to suspect that "other things [were] going on." A paramedic told Folkerte that defendant was acting "very guarded" and "extremely paranoid" and that defendant had made the unusual request to drop off his backpack at a friend's house on the way to the hospital. The paramedic asked Folkerte to follow the ambulance to the hospital, which he did a few minutes later, after he finished interviewing witnesses at the scene. Folkerte did not interview defendant at the accident scene, but Folkerte intended to interview defendant and also to issue him a traffic citation once Folkerte got to the hospital.

B. The Search of Defendant's Backpack at the Hospital

The paramedics dropped defendant off at the hospital, a few minutes away. Defendant went in and signed a voluntary consent-to-treatment form before Folkerte arrived. Folkerte then entered defendant's treatment room and immediately smelled marijuana. That put defendant's concern about his backpack in context for Folkerte, who suspected that defendant possessed marijuana. During the exchange that followed, medical personnel filtered in and out of defendant's treatment room, and Folkerte stood next to defendant, who was in a chair. Folkerte testified that his tone was "[p]rofessional," that there was "nothing exceptional about" the "dialogue" that ensued, and that there were "no raised voices" or "unnecessary high emotions." Folkerte did not threaten to arrest defendant if he refused to cooperate.

Folkerte inquired whether the backpack contained marijuana, and defendant stated that it contained "a couple of pipes" and a "small amount of marijuana." Then, Folkerte asked defendant for consent to search his backpack, which defendant orally gave. Folkerte then read a department-prepared consent card to defendant, informing defendant that he had the right to refuse consent. Folkerte again asked defendant if he consented to the search and defendant again orally consented to the search. Defendant signed the card. Folkerte asked defendant to open his backpack and hand over the pipes and the "small amount of marijuana" that he had identified. While defendant complied, Folkerte could see that defendant was attempting to hide a brown wooden cigar box within the backpack. Folkerte asked defendant about the cigar box, which defendant removed from the backpack and opened to reveal two clear plastic bags containing marijuana, later weighed at 1.45 ounces. Folkerte questioned defendant again about any additional items in the backpack, and defendant removed a digital scale and a small pill container containing small amounts of crushed marijuana.

C. The Questioning After the Backpack Search

After seeing the marijuana, scale, and pill container, and considering defendant's earlier request to drop off his backpack, Folkerte suspected that defendant was delivering marijuana. Folkerte estimated that, at that point, about 20 minutes had passed since Folkerte had arrived at the hospital room. Folkerte read defendant his Miranda rights from a department-prepared card, and defendant stated that he understood his rights. Folkerte then began questioning defendant about delivering marijuana. Defendant stated...