State v. Miller, A168644

CourtCourt of Appeals of Oregon
Citation319 Or.App. 32,508 P.3d 542
Docket NumberA168644
Parties STATE of Oregon, Plaintiff-Respondent, v. Rodney Monroe MILLER, Defendant-Appellant.
Decision Date13 April 2022

319 Or.App. 32
508 P.3d 542

STATE of Oregon, Plaintiff-Respondent,
Rodney Monroe MILLER, Defendant-Appellant.


Court of Appeals of Oregon, En Banc.

Argued and submitted May 5, 2020
Resubmitted en banc December 15, 2021.

April 13, 2022

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, C. J., and Ortega, Egan, Tookey, Shorr, James, Aoyagi, Powers, Mooney, Kamins, Pagán, Joyce, JJ. and DeHoog, J. pro tempore.


319 Or.App. 34

Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894 (2017).1 Following the denial of his motion to suppress evidence obtained during a search, defendant entered a conditional guilty plea, reserving his right to appeal the trial court's ruling. On appeal, defendant contends that the trial court erred in denying his motion because

508 P.3d 544

the investigating officer lacked reasonable suspicion to stop defendant, which stop then led to the discovery of incriminating evidence. The state responds that reasonable suspicion supported the stop. As explained below, we conclude that the officer had an objectively reasonable suspicion that defendant possessed illegal drugs before he initiated the stop. As a result, we affirm.

We review the trial court's ruling denying defendant's motion to suppress for legal error. State v. Maciel-Figueroa , 361 Or. 163, 165, 389 P.3d 1121 (2017). In so doing, we are bound by the court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). Where the court did not make express findings, and there is evidence from which the court could have found a fact in more than one way, we presume that the court decided the facts consistently with its ultimate conclusion. Id. We summarize the facts consistent with those standards.

On March 23, 2018, around midnight, Officer Witherell observed a pickup truck parked in the parking lot of an open Safeway store in Stayton. It was snowing, and the truck was parked crookedly in an "odd spot" that would require a person to "walk completely across the parking lot to go into the store." Witherell determined that the truck was registered to defendant and that it was required to have an ignition interlock device. Witherell observed the truck for a few minutes from across the street. After seeing the truck's brake lights come on, Witherell drove his

319 Or.App. 35

patrol car back to the Safeway parking lot, watched the truck for a few more minutes, and then approached it on foot.

As Witherell walked up to the truck, defendant—who was in the driver's seat—opened the truck door. Witherell asked defendant "if everything was ok and what was going on," and defendant explained that he was arguing with his girlfriend and held up his phone to Witherell, which Witherell took to mean that defendant was arguing with her on the phone.

During that interaction, Witherell noticed that defendant was wearing a hooded sweatshirt with the left sleeve "pulled up over his elbow" and the right sleeve pulled down to his wrist. Because defendant's truck was "very lifted" such that the truck's floorboard was "almost to [Witherell's] chest level," Witherell noticed that there was an uncapped syringe next to defendant's left foot. Witherell testified that the syringe looked like it was "loaded" but that he "could not get a clear enough view of it." Witherell also noticed a butane lighter in the driver's side door compartment. Witherell testified that butane lighters are consistent with methamphetamine and heroin use because they are used to heat spoons and glass pipes used to ingest methamphetamine and heroin.

Witherell then asked defendant about the syringe. Defendant initially responded, "Needle, I don't know." After Witherell pointed to the syringe, defendant responded, "That one, I couldn't tell ya." Defendant "was acting nervous specifically about the needle." Witherell then asked defendant if there was any other kind of drug paraphernalia in the truck, and defendant said "Bro, I ain't got nothin." Because syringes are used by those with diabetes, the officer asked defendant if he had diabetes. Defendant confirmed that he was not diabetic.

Defendant then offered a new explanation, that he had found the syringe at work earlier and was going to give it to a coworker named Stuart on the next day. At that time, based on defendant's suspicious demeanor, his one rolled-up sleeve, the presence of the syringe and butane lighter, and defendant's nervousness about the syringe, Witherell

319 Or.App. 36

asked defendant to get out of the truck. As we discuss later, the trial court concluded that a stop had occurred at that point, and the parties do not contest that conclusion on appeal.2

Witherell then frisked defendant for weapons. After the frisk, and without being questioned, defendant offered a different explanation—that he had picked up a man earlier who offered him the syringe. Defendant said that he was arguing with his girlfriend, that he was upset, and that he "hadn't done it

508 P.3d 545

yet." Witherell proceeded to seize the syringe and search the truck. Underneath the driver's seat, he discovered a spoon with methamphetamine residue. Underneath the butane lighter, he found a glass pipe with methamphetamine residue. He also found a "wash bottle," which is used "to rinse out syringes or to put water on the spoon and to inject methamphetamine or heroin." Witherell then arrested defendant and gave him Miranda warnings. Defendant confirmed that the wash bottle was "just wash." Defendant also said that he had used methamphetamine in the past. When asked what he thought was in the syringe, defendant responded "I'm assuming it was meth." Witherell followed up by asking defendant if it was methamphetamine or heroin, and defendant said, "It's not heroin. I would never touch that shit; it's meth."

Before trial, defendant filed a motion to suppress all evidence derived from the stop. Defendant argued that Witherell unlawfully stopped and seized him in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. At the suppression hearing, defendant argued that Witherell lacked reasonable suspicion to stop and seize him. The state argued the initial encounter was not a stop, and that thereafter Witherell articulated a sufficient basis to believe that defendant possessed a controlled substance, that the plain-view exception justified seizing the syringe, and that the search-incident-to-arrest exception justified the search of the vehicle. In urging the trial court to deny the suppression motion, the state focused on the lawfulness of

319 Or.App. 37

the initial contact as the main issue before the court and asserted that "so long as that initial contact was lawful the rest of the evidence that was seized thereafter should be admissible."

The trial court denied defendant's motion. It concluded that Witherell did not stop defendant until he asked him to get out of the truck and frisked him. The trial court further concluded that a sufficient legal basis supported that stop. In making that determination, the trial court found that defendant had been parked crookedly in an isolated spot in a Safeway parking lot late on a snowy night, and that when the officer approached defendant, defendant opened the truck door. The trial court further found that the officer observed a syringe on the truck floor near defendant's feet and a butane lighter in the driver's side door, and that the officer believed—although he was not certain—that the syringe was "loaded." Additionally, the court found that one of defendant's sleeves was rolled up as if he were "about to shoot up." As noted, after the trial court denied defendant's motion, defendant entered a conditional guilty plea, specifically reserving his right to appeal the trial court's ruling denying suppression.

On appeal, defendant renews his contention that he was unlawfully stopped without reasonable suspicion of illegal drug possession, asserting that the trial court erred when it denied his motion to suppress. As noted, the trial court concluded that defendant was stopped when Witherell asked him to step out of the truck and frisked him, and the parties do not contest that conclusion. See State v. Bowen , 88 Or. App. 584, 589, 746 P.2d 249 (1987), rev. den. , 305 Or. 45, 749 P.2d 1182 (1988) (holding that the defendant was "clearly stopped" when the officer asked her to step out of the car and frisked her). Defendant maintains, however, that the officer lacked reasonable suspicion of illegal drug possession at that point. The state argues that the court correctly denied defendant's...

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