State v. Mitchell

• Decision Date: 19 August 2015
• Docket Number: 130230532,A154686.
• Citation: 273 Or.App. 207,360 P.3d 525
• Parties: STATE of Oregon, Plaintiff–Respondent, v. William Louis MITCHELL, Defendant–Appellant.
• Court: Oregon Court of Appeals

273 Or.App. 207

360 P.3d 525

STATE of Oregon, Plaintiff–Respondent,

v.William Louis MITCHELL, Defendant–Appellant.

130230532

A154686.

Court of Appeals of Oregon.

Submitted Jan. 27, 2015.

Decided Aug. 19, 2015.

Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Senior Assistant Attorney General, filed the brief for respondent.

Opinion

TOOKEY, J.

Defendant was charged with possession of methamphetamine, ORS 475.894, and he moved to suppress the evidence of methamphetamine, arguing that he was unlawfully seized and that the discovery of an outstanding warrant did not purge the taint of the illegality. The trial court determined that defendant was unlawfully seized but denied defendant's motion to suppress, concluding, under the Fourth Amendment to the United States Constitution,¹that the causal connection between the unlawful seizure and the challenged evidence was sufficiently attenuated by the discovery of the outstanding warrant so as to purge the taint of the illegality. The trial court then conducted a bench trial without obtaining a written jury waiver from defendant and convicted defendant as charged.

Defendant now appeals the resulting judgment of conviction. In his first assignment of error, defendant argues that the trial court improperly denied his motion to suppress, contending that the court incorrectly concluded that the discovery of the outstanding warrant purged the taint of the unlawful seizure. In his second assignment of error, defendant argues that the trial court plainly erred by conducting a bench trial without obtaining a written jury waiver from defendant.

As to the first assignment of error, we assume without deciding that defendant was unlawfully seized, agree with the trial court that the causal connection between the unlawful police conduct and the challenged evidence was sufficiently attenuated by the discovery of the outstanding warrant so as to purge the taint of the illegality, and conclude that the trial court did not err in denying defendant's motion to suppress. As to the second assignment of error, the state concedes that the trial court plainly erred when it conducted a bench trial without obtaining a written jury waiver from defendant, and we agree and accept the state's concession. Accordingly, we reverse and remand.

We are bound by the trial court's findings of fact as long as there is constitutionally sufficient evidence to support them. State v. Ehly,317 Or. 66, 74–75, 854 P.2d 421 (1993). In the absence of express factual findings, we presume that the trial court decided the disputed facts in keeping with its ultimate conclusion. Id.at 75, 854 P.2d 421. On appeal, “[o]ur function is to decide whether the trial court applied legal principles correctly to those facts.” Id.We state the facts consistently with those standards.

Boltjes was a fare inspector for TriMet, which operates a mass transit system in Portland. As a fare inspector, Boltjes had the authority, on or within TriMet property, to check a person for a fare and to “detain[ ] that person for enough time to identify them and write them a citation * * * for fares and other TriMet code violations.” Boltjes was not authorized to make an arrest.

Bowen was a police officer assigned to the Transit Police Division. Bowen was periodically assigned to assist fare inspectors and enforce fare violations, and he often “assist[ed] the fare inspectors with identifying people when they [did not] have ID on them.” Bowen would identify people by “ask[ing] the person for their name, the date of birth, some clarifying information.” Typically, he would “ask them for their date of birth and how old they are” to “[m]ake sure those match.” He would also “[a]sk them if they've ever been arrested before, if they're currently on probation, [and] if they have an Oregon driver's license.” Then Bowen would “double-check” that information to make sure that it matched what the person had reported.

While conducting a fare inspection mission one night, Boltjes saw defendant at the Rose Garden Transit Center. Believing that defendant had ridden a train, Boltjes approached defendant and “asked him for his fare.”²

Defendant did not have a fare.

Boltjes then asked defendant for his identification. Defendant said that he did not have any identification, and he verbally provided Boltjes with a name and a date of birth. Boltjes wrote down that identifying information, but he did not think that it was correct, because, based on the date of birth that defendant had provided, defendant would have been about 40 years old, and defendant did not appear to be 40 years old.

Bowen was on duty at the transit center on the night in question. Boltjes escorted defendant to Bowen's patrol vehicle and told Bowen that he did not believe that defendant was being honest about his identity. Boltjes then relayed defendant's identifying information to Bowen and asked him to check it “through his channels.” Boltjes could not “say for sure” whether his contact with defendant ended at that point, but generally, when it gets to that point, Boltjes lets the officer “take over.” Boltjes did not issue defendant a citation for riding the train without a fare.

Bowen asked defendant for his name and date of birth. When defendant verbally provided Bowen with the same identifying information that defendant had provided to Boltjes, Bowen “was suspicious, given that [defendant] appeared to be older than 40.” Nevertheless, Bowen “ran that information over the radio” while defendant and Boltjes stood at the hood of Bowen's patrol vehicle.

Bowen located a photograph of the person matching the identifying information that defendant had provided to Boltjes and Bowen. Bowen observed that the photograph appeared to be of a person who was younger than defendant, and Bowen's suspicion increased. Bowen then “started to look for other identifying characteristics, tattoos, other stuff that's harder to change frequently on a person” and found that the “tattoos and the physical descriptors also did not match with [defendant's].”

Bowen told defendant that he did not think that he was being honest and gave him “one last option to be honest.” Specifically, Bowen told defendant that if he did not disclose his actual name and date of birth, Bowen was going to charge him with giving false information to a police officer.

At that point, defendant disclosed to Bowen his actual name and date of birth.

Bowen then “confronted [defendant] with his lie and began asking him why he lied,” and defendant “said he thought he had a warrant.” Bowen then tried “to verify that name” and, in the process of doing so, Bowen located an outstanding warrant for defendant's arrest. Bowen had the warrant confirmed and arrested defendant. When defendant was searched incident to the arrest, the police discovered a crystalline substance that later tested positive for methamphetamine.

In his motion to suppress, defendant argued that he was unlawfully seized when Bowen ran a records check on him and that, under federal law, “the subsequent discovery of a valid warrant [did] not ‘purge the taint’ of the unlawful ‘stop’ of defendant.” At a hearing on the matter, the state responded that defendant was not seized and alternatively argued that, even if defendant was seized, suppression was not warranted because the discovery of the outstanding warrant was “an attenuating circumstance.” To support its attenuation argument, the state pointed to State v. Dempster,248 Or. 404, 408, 434 P.2d 746 (1967), in which the Oregon Supreme Court, relying on Fourth Amendment case law, concluded that the lawful arrest of the defendant on a bench warrant “purged the search incident thereto of the taint of any illegality in the detention of defendant prior to that time.” The state urged the trial court to apply Dempsterin the trial court's Fourth Amendment analysis in this case.

Regarding the seizure issue, the trial court stated:

“The question is whether at some point during the encounter the lawful authority to detain [defendant] for purposes of verifying his identification for purposes of writing a citation ended and turned into unlawful authority, or unlawful exercise of authority, detaining [defendant] without reasonable suspicion or probable cause. And the testimony was unclear as to how long it took.

“But certainly, the investigation changed from one of an investigation into the defendant's identity for purposes of writing him a citation, into an investigation to determine whether or not there was an outstanding warrant for his arrest.

“* * * * * *

“Once Bowen confronted [defendant] with his lie and began asking him why he lied, that was a new investigation and at that point, there was no basis for * * * suspicion or probable cause for Bowen to detain [defendant] for that, for the purpose of that new investigation.

“So I do believe under the facts and I conclude under the facts of this case as presented that the—although I don't believe the initial stop and detention by Boltjes was unlawful, I do believe that the investigation changed at some point during the encounter to a new investigation, and that Bowen then was exercising his authority to stop and detain [defendant], and * * * Bowen did not have lawful authority to do so, didn't have reasonable suspicion or probable cause at that point to do so. So the stop itself was unlawful.”

Having determined that defendant was unlawfully seized “[o]nce Bowen confronted [defendant] with his lie and began asking him why he lied,” the court then discussed the legal basis for defendant's motion to suppress:

“[COURT]: That leads us to the second question, which I understand the defense concedes that under Oregon law the subsequent discovery of an arrest warrant purges the taint of the unlawful stop. So the arrest and subsequent search under the arrest warrant, under Oregon law, would be

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