State v. Maciel

• Decision Date: 16 January 2013
• Docket Number: 092084AFE; A145086.
• Citation: 254 Or.App. 530,295 P.3d 145
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jose MACIEL, aka Fabian Villalabos–Cantu, Defendant–Appellant.
• Court: Oregon Court of Appeals

254 Or.App. 530

295 P.3d 145

STATE of Oregon, Plaintiff–Respondent,

v.Jose MACIEL, aka Fabian Villalabos–Cantu, Defendant–Appellant.

092084AFE; A145086.

Court of Appeals of Oregon.

Argued and Submitted April 30, 2012.

Decided Jan. 16, 2013.

Lindsey K. Detweiler, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

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

ARMSTRONG, P.J.

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 drug-related evidence obtained during an unlawful stop. We review for legal error whether a police officer's interaction with an individual amounts to an unlawful seizure under Article I, section 9, of the Oregon Constitution. State v. Smith, 252 Or.App. 518, 519, 287 P.3d 1210 (2012). We conclude that the drug-related evidence should have been suppressed and, accordingly, reverse and remand.

The relevant facts are undisputed. Early one morning, Troopers Walport and Hillier of the Oregon State Police were monitoring northbound traffic on I–5, just north of the California border. At approximately 4:00 a.m., Hillier, who was operating a lidar speed gun,¹ observed a vehicle traveling 60 miles per hour in a 55–mile–per–hour zone. Walport pulled out behind the vehicle and activated his overhead lights. The vehicle slowed to approximately 20 miles per hour, moved over, and straddled the fog line; it did not come to a stop. Walport watched the driver lean over and slap someone in the passenger seat, who quickly sat up. The occupants appeared to be talking amongst themselves.

Approximately one half mile after Walport had activated his overhead lights, the driver stopped the vehicle on the highway shoulder. Walport approached the passenger side of the vehicle and told the driver that he had been stopped for a speeding violation. Walport asked the driver if he spoke any English, and the driver replied, “No.” During that exchange, Walport noticed that the passenger—defendant—appeared angry; he had crossed arms and a clenched jaw, and he was shaking his head while staring directly ahead.

Walport asked the driver for his license, insurance, and registration. The driver provided an Oregon driver's license while defendant opened the glove compartment and retrieved the vehicle's registration and insurance information, which did not match the name on the driver's license. Walport first asked the driver and then defendant if either of them owned the vehicle, and each responded, “No.”

Walport then asked who owned the vehicle, and defendant offered a series of inconsistent answers. Defendant first explained that the vehicle belonged to a friend, but, when Walport asked for the friend's name, defendant vacillated and instead explained that the vehicle belonged to a friend of a friend. Walport asked for the friend-of-a-friend's name. Defendant paused, apparently in thought, and eventually answered “Monzo”—the name on the registration. Walport asked defendant why they were driving Monzo's vehicle, and defendant explained that he had purchased the vehicle in California, although he could not provide any documentation for the sale.

The interior of the car did not appear to Walport to be consistent with the interior of a vehicle that had just been purchased because it had food wrappers and receipts scattered around it and a child's car seat that appeared to have been in place for some time. Several other items—or the lack thereof—in the vehicle also attracted Walport's attention: Both the driver and the passenger had identical prepaid cellular phones, there was no visible luggage in the passenger compartment of the vehicle,² and there was a religious medallion affixed to the vehicle's rearview mirror.

Walport asked defendant for identification, and defendant produced an Oregon driver's license. At 4:18 a.m., Walport returned to his patrol car and requested a warrant check on defendant and the driver. While that check was pending, Walport returned to the passenger side of defendant's vehicle and asked defendant to accompany him to the patrol car so that defendant could clarify the details of his purported purchase of the vehicle. Defendant complied and explained that he and the driver had traveled from Woodburn, Oregon, to Oakland, California, in their own vehicle to visit their friend, Junior. While in Oakland, defendant decided that he wanted to purchase the vehicle in which they had been stopped. Junior took defendant to a street corner in Oakland, where defendant met Monzo and purchased the vehicle.

Walport asked defendant how much he had paid for the vehicle. Defendant explained that he had not yet paid for the vehicle, but, instead, he was conducting a test drive of it from Oakland to Woodburn, a distance of approximately 600 miles. In a series of follow-up questions, Walport learned that defendant and Monzo had not settled on a purchase price, that defendant did not have Monzo's phone number, and that defendant had no way of transferring money to Monzo to complete the sale. Asked about those gaps in his plans, defendant explained that he would contact Junior, who would then contact Monzo and figure out the remaining details. In the event that defendant was dissatisfied with the car as a result of his test drive, he did not know how he was going to return the vehicle nor how he would reclaim the vehicle that he had left in Oakland. Over the course of the conversation, defendant noticeably relaxed, appearing less angry than he had been at the beginning of the stop.

Walport did not believe defendant's account of the “sale,” and he asked defendant whether there were “large amounts of cash” or drugs in the car. Defendant became visibly nervous, crossed his arms, sat down on the hood of Walport's patrol car, and stared at the ground. Walport then listed individual drugs, and each time defendant responded by shaking his head and saying, “No.” Walport asked defendant for permission to search the vehicle and provided defendant with a consent form, printed in Spanish and English, which defendant declined to sign. Walport successfully sought consent from the driver to search the car, but defendant informed Walport, “[the driver] doesn't own anything in the car, everything in the car belongs to me.” Accordingly, Walport did not rely on the driver's consent to search the car.

At 4:29 a.m., Walport received a return on the warrant check for defendant and the driver; both were clear. Walport declined to write a traffic citation, however. Instead, at 4:40 a.m., he called Oregon State Trooper Costanzo, who arrived on the scene at 5:05 a.m. with Cookie, a certified drug-detection dog. While performing a dog sniff of defendant's vehicle, Cookie alerted to the presence of drugs. Relying on Cookie's alert, Costanzo searched the vehicle and ultimately found approximately five pounds of methamphetamine hidden behind a panel in the passenger compartment.

Defendant was indicted for one count each of manufacturing, delivering, and possession of methamphetamine, ORS 475.886; ORS 475.890; ORS 475.894, and one count of providing false information to a police officer, ORS 162.385. Defendant pleaded not guilty and moved to suppress all evidence obtained in the search of his vehicle, contending that the search violated his rights under Article I, section 9.³ In a series of memoranda in support of suppression, defendant argued that Walport lacked reasonable suspicion to detain defendant and that Walport had unlawfully seized defendant's vehicle, both in violation of Article I, section 9.

The trial court denied defendant's suppression motion, concluding that “[w]hile no one factor in this case would be sufficient to support reasonable suspicion of criminal activity, taken as a whole there is adequate evidence to support such suspicion.” The trial court did not specify the criminal activity that Walport reasonably suspected. The order denying suppression notes that defendant's unbelievable story rendered objectively reasonable Walport's suspicion that defendant's vehicle was stolen. The order did not address whether any of the evidence known to Walport supported a reasonable suspicion of drug trafficking or other drug-related criminal activity. Nevertheless, the court concluded that the extension of the traffic stop for purposes of the dog sniff was reasonable.

In light of the trial court's ruling, defendant entered a conditional no-contest plea to one count of possession of methamphetamine. Defendant reserved his right to appeal the trial court's denial of his suppression motion.

On appeal, defendant renews his arguments under Article I, section 9, that he was unlawfully stopped, that his vehicle was unlawfully seized, and that the dog sniff and subsequent discovery of methamphetamine were the product of police exploitation of those ongoing unlawful seizures. In turn, the state contends that Walport developed reasonable suspicion to investigate car theft and drug trafficking during the traffic stop and that the subsequent investigation, including the dog sniff of defendant's vehicle, was reasonable.

A stop of a person by a police officer is supported by reasonable suspicion when the officer subjectively believes that the person has committed or is about to commit a crime and that belief is objectively reasonable in light of the totality of the circumstances existing at the time of the stop. State v. Belt, 325 Or. 6, 11, 932 P.2d 1177 (1997); State v. Espinoza–Barragan, 253 Or.App. 743, 747, 293 P.3d 1072 (2012). To be objectively reasonable, the officer's suspicion must be based on specific and...