State v. Morfin–Estrada

• Decision Date: 11 July 2012
• Docket Number: A143650.,090748809
• Citation: 251 Or.App. 158,283 P.3d 378
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Moises MORFIN–ESTRADA, aka Moises Morfinestrada, Defendant–Appellant.
• Court: Oregon Court of Appeals

251 Or.App. 158

283 P.3d 378

STATE of Oregon, Plaintiff–Respondent,

v.Moises MORFIN–ESTRADA, aka Moises Morfinestrada, Defendant–Appellant.

090748809; A143650.

Court of Appeals of Oregon.

Argued and Submitted Sept. 1, 2011.

Decided July 11, 2012.

Bear Wilner–Nugent, Portland, argued the cause and filed the brief for appellant.

Douglas F. Zier, Salem, argued the cause for respondent. With him 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.

DUNCAN, J.

In this criminal case, defendant appeals the trial court's judgment convicting and sentencinghim for one count of carrying a concealed weapon, ORS 166.240.¹ On appeal, defendant challenges the trial court's denial of his motion to suppress evidence that, he argues, derived from a violation of his rights under Article I, section 9, of the Oregon Constitution.² Specifically, defendant argues that, when the police officer who had stopped him for a traffic violation asked for his consent to a patdown for weapons, the officer unlawfully extended the duration of the traffic stop. We disagree. As explained below, like the trial court, we conclude that, when the officer asked defendant for his consent to a patdown for weapons, the officer had reasonable suspicion that defendant was carrying a concealed weapon. Therefore, although the request for consent extended the traffic stop, the extension was lawful. Accordingly, we affirm.

Whether an officer has unlawfully extended an otherwise lawful traffic stop in violation of Article I, section 9, is a question of law that we review for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993); State v. Gomes, 236 Or.App. 364, 370, 236 P.3d 841 (2010). When we do, we are bound by the trial court's findings of historic fact, provided that there is constitutionally sufficient evidence in the record to support them. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). If the trial court did not make express findings, we presume that the trial court resolved factual disputes in a manner consistent with its ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We state the facts consistently with that standard.

In the summer of 2009, Gresham Police Officer Galbreath worked the graveyard shift in east Portland. He dealt with gang activity on a nightly basis. Galbreath had previously found a variety of weapons, including firearms, on gang members. Violence between gangs was an ongoing problem, and it included stabbings and shootings. There had been an influx of new gangs into east Portland and a lot of gang fights that summer. Gangs fought over territory, which they claimed by marking it with graffiti tags. In Galbreath's experience, tagging was a chronic problem, and it caused conflicts between gangs. As Galbreath explained the practice,

“rival gangs will come into another gang's area and scratch out, you know, whoever is claiming the turf or the area, scratch out their logo and put up their own. So it's a fight for power.”

Shortly after midnight on July 23, 2009, Galbreath, who was in uniform and driving a marked patrol car, saw defendant and another man, Delgado, walk across 172nd Avenue against the traffic light, which is a Class D traffic violation. ORS 814.020(1)(b), (3). Galbreath pulled over and got out of his patrol car to talk to defendant and Delgado. He asked them what they were doing out so late at night. Defendant and Delgado pointed out some fresh graffiti on a nearby garage door. They told Galbreath that they were part of a neighborhood patrol and had come out because they had received a telephone call that someone had been spraying graffiti in the area. Galbreath told them that he had seen them cross the street against the traffic light.

Galbreath noticed that Delgado had what appeared to be a gang tattoo and asked both Delgado and defendant what gang they were in. Defendant answered that they were members of the Paso Robles Boys (PRB). Galbreath was familiar with that gang and had seen “a lot” of their tags in the Gresham area. The fresh tag was not a PRB tag. Defendant told Galbreath that he and Delgado had been stopped earlier that night by the gang team and that they had already been checked for warrants. Galbreath asked defendant and Delgado for their gang nicknames,which they provided and he wrote down. Galbreath then asked defendant for his real name, which defendant also provided. Defendant offered Galbreath his identification card, and Galbreath took it to write down defendant's information and then returned it.

Sergeant Hernandez, who was part of the gang team, arrived. Like Galbreath, he was in uniform and driving a marked patrol car. He got out of his patrol car and stood next to Galbreath. He confirmed that the gang team had stopped defendant and Delgado earlier and they did not have any warrants.

About 10 minutes after he first contacted them, Galbreath asked defendant and Delgado if he could search them for guns. Delgado put his hands on his head, walked over to Galbreath, and turned around. Galbreath searched him, finding nothing. Galbreath turned to defendant and said, “How about you?” Defendant put his hands on his head and said, “I have my dagger in my left pocket.” With defendant's hands above his head, Galbreath could see the hilt of the dagger, which had previously been concealed by defendant's shirt. Galbreath seized the dagger and arrested defendant for carrying a concealed weapon.

Before trial, defendant moved to suppress all evidence obtained as a result of Galbreath's request for consent to search. Citing Hall, defendant asserted that his consent was invalid because it was the product of an unlawful seizure, specifically, an unlawful extension of the traffic stop. In response, the state contended that the encounter between defendant and Galbreath was not a stop and, even if it was, during its course, Galbreath developed reasonable suspicion that defendant was carrying a weapon.

At the hearing on the motion, the prosecutor questioned Galbreath about why he had asked to search defendant and Delgado and whether he had reasonable suspicion that they were carrying weapons.

“[PROSECUTOR]: And why did you ask to search [them]?

“[GALBREATH]: Because there's—their gang activity and gang involvement. A lot of times I run into the gang—people involved in gangs, they'll have spray paint, a lot of graffiti coming up and down 172nd and there was graffiti right behind them, looking for weapons, graffiti implements, guns, things they shouldn't have.

“[PROSECUTOR]: Given the tagging that was going on and their stated reason for being out, did you think it was reasonable or did you have a reasonable suspicion that they were carrying weapons?

“[GALBREATH]: I've ran into many gangsters that carry weapons, especially knowing that the tagging behind them was not their own and they were out on their neighborhood patrol, which I don't know of any neighborhood patrol there.

“You know, I was getting to the point where I believed that it might be coming out for the retaliation tagging of their turf.”

Thus, Galbreath testified that he asked to search defendant and Delgado because of “their gang activity and gang involvement.” As to whether he had reasonable suspicion that defendant and Delgado were carrying weapons, Galbreath testified that he had encountered many gang members who carry weapons and that he thought defendant and Delgado might be coming out to retaliate for the tagging of their gang's territory.

Concluding that Galbreath had stopped defendant, the trial court stated that defendant was “not free to go” and “[defendant] knew it and it was objectively reasonable for him to know it.” The trial court also concluded that Galbreath's request to search extended the traffic stop “beyond its legitimate purpose.”

Turning to the question of whether the extension of the stop was lawful, the trial court concluded that the extension was not justified as an officer safety measure, stating that “[t]here's no officer safety discussion here at all.” But, the trial court concluded that the extension was justified as a criminal investigatory stop because the officer, in the trial court's view, had reasonable suspicion that defendant was carrying a concealed weapon.

The trial court acknowledged that there was no evidence that defendant or members of his gang had carried weapons in the past. But, the trial court focused on defendant's gang membership and his reason for being out, specifically, that he was responding to a call about a tag that had been placed by another gang. Summarizing the evidence supporting Galbreath's suspicion that defendant was carrying a concealed weapon, the trial court stated:

“[T]here is at least a suggestion that we're in [PRB's] territory because the [y're] doing a neighborhood patrol and the[y're] concerned with some other gang, so we got that. It's their territory or the officer reasonably believes that.

“ * * * * *

“So [the officer] knew * * * by the time he asked for consent to search for weapons, that the defendant was responding to a call about tagging. He knew from his training and experience that tagging is the focus of gang violence.

“And he knew from statements of the parties he was confronting that they were responding to such a call and concerned about such an event. I think the State gets there.

“ * * * * *

“ * * * [I]t is a particularized suspicion that these gang members under these circumstances at this time and place, responding to a call of a rival gang members tagging, would come armed.”

The trial court noted that Galbreath could have “done a bit more to articulate” the bases for his suspicion but that it understood Galbreath to have meant that defendant and Delgado were gang members “responding to a rival gang's tag” and that “gang members often resort to violence about such things.” Thus, the trial court...