State v. Oller

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Rozalind Sue OLLER, Defendant–Appellant.
• Citation: 277 Or.App. 529,371 P.3d 1268
• Docket Number: 13CR0619FE,A156526.
• Court: Oregon Court of Appeals
• Decision Date: 13 April 2016

277 Or.App. 529

371 P.3d 1268

STATE of Oregon, Plaintiff–Respondent

v.Rozalind Sue OLLER, Defendant–Appellant.

13CR0619FE

A156526.

Court of Appeals of Oregon.

Argued and Submitted Feb. 9, 2016.

Decided April 13, 2016.

Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, argued the cause for appellant.With her on the brief was Peter Gartlan, Chief Defender.

David B. Thompson, Assistant Attorney General, argued the cause for respondent.With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before SERCOMBE, Presiding Judge, and TOOKEY, Judge, and DeHOOG, Judge.

DeHOOG, J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine.She assigns error to the trial court's denial of her motion to suppress physical evidence and incriminating statements.An officer conducted a traffic stop of defendant and her passenger, who the officer knew was on probation for drug-related conduct.After concluding the traffic stop, the officer observed syringes in the pocket of the driver's side car door.Based on that observation, the officer asked defendant if she had anything illegal in the car and requested consent to search her purse.Defendant consented to the search of her purse, as well as to the search of a closed red bag inside the purse.The search of the red bag yielded physical evidence of drug possession and statements by defendant, which defendant sought to suppress.We conclude that (1) the officer did not have reasonable suspicion to investigate defendant for a drug crime when he began to question her about illegal items in her car and, therefore, the officer unlawfully detained her and (2)the state did not meet its burden of proving that the police did not exploit that unlawful seizure to obtain defendant's subsequent consent.Accordingly, we reverse and remand.

We review the denial of a motion to suppress to determine whether the trial court's factual findings are supported by constitutionally sufficient evidence in the record and whether the trial court correctly applied applicable principles of law.State v. Ehly,317 Or. 66, 75, 854 P.2d 421(1993).We take the facts from the court's findings and from consistent evidence presented at the suppression hearing.We are bound by the trial court's findings of historical fact if there is evidence in the record to support them.Id.If the trial court did not make detailed findings on disputed issues of fact, we infer that the court made findings consistent with its ultimate conclusion, so long as the record supports that view of the facts.State v. Watson,353 Or. 768, 769, 305 P.3d 94(2013).With that standard in mind, we present the following facts, based primarily on the officer's largely uncontroverted testimony at the suppression hearing.

Defendant was driving with a passenger when Douglas County Deputy Sheriff Riesen stopped the car she was driving during a routine patrol.Riesen had recognized defendant's passenger as a known drug user and had followed defendant's car.When Riesen saw defendant make an illegal lane change, he stopped her to investigate that traffic violation.After explaining the reason for the stop, Riesen asked defendant for her driver's license.Defendant could not provide her driver's license.

To determine defendant's identity, Riesen asked her to step out of her car and accompany him to his patrol car.Riesen detained defendant outside of his patrol car while he checked her identity through his computer.During that time, Riesen also confirmed with dispatch that defendant's passenger was on probation for drug crimes.After confirming defendant's identity and confirming that she was a licensed driver, Riesen told her that he would only issue her a warning for the lane change violation.Riesen then walked with defendant back to her car.

On the walk back to defendant's car, Riesen asked defendant whether she knew that her passenger was on probation and that he was not allowed to associate with drug users.Riesen characterized that discussion as “conversation” and said that he often talks with people and walks them back to their cars after he has finished a traffic stop.

When defendant opened the driver's side car door to drive away, Riesen saw syringes in the pocket of that door.In Riesen's experience, the syringes he saw were of a type that intravenous drug users typically use.At that point, Riesen believed that he had grounds to investigate defendant for a drug offense.Riesen asked defendant about the syringes and asked her whether she had anything illegal in the car.She said that she did not and agreed to let Riesen search her purse, which was located between the driver's and passenger's seats.

Defendant and Riesen walked to the back of defendant's car, and defendant began to remove items from her purse.Defendant identified each individual item for Riesen as she removed it from her purse.Based on his experience, Riesen believed that that behavior indicated that defendant was hiding something.Because Riesen thought that defendant“seemed to be taking forever,”he asked defendant, “Why don't you just let me look in the purse?”Defendant agreed and handed Riesen her purse.

While searching defendant's purse, Riesen removed a red bag from inside the purse.He asked defendant what was inside the bag.In Riesen's words, she“paused an unusual length of time,”“stared * * * blankly” at Riesen, and “panicked.”Defendant reached out to grab the red bag from Riesen, but he“pulled it away from her.”Riesen understood that defendant“didn't want [him] to look in the bag,” and thought that her act of grabbing for the bag “was a nervous reaction.”Riesen again asked defendant what was in the red bag, and defendant responded that there were “meth items” in the bag.Riesen asked defendant if he could search the bag, and defendant“told [Riesen he] could look in it.”Inside the bag, Riesen discovered drug paraphernalia and a residual amount of methamphetamine.Defendant made additional incriminating statements after that discovery.Riesen arrested defendant for methamphetamine possession, and this charge followed.

Before trial, defendant moved to suppress her statements and the physical evidence obtained during her encounter with Riesen.She argued that the evidence should be excluded because Riesen twice violated her right against unlawful searches or seizures under Article I, section 9, of the Oregon Constitution.¹First, defendant argued that Riesen had unconstitutionally seized her by unlawfully detaining her after the traffic stop had ended.Second, she argued that she had not consented to the search of her purse and the red bag within it.The state responded that defendant had not been unconstitutionally seized and that defendant had provided valid consent to search.According to the state, the initial traffic stop had ended when Riesen told defendanthe would only issue her a warning and walked with her back to her car.Although the state conceded that Riesen had again seized defendant when he began to question her about illegal items in her car, the state argued that, by that time, the syringes visible in the car door had given Riesen reasonable suspicion to investigate defendant for a drug crime.

The trial court denied defendant's suppression motion, based on its conclusions that neither the seizure of defendant nor the search of her purse had been unlawful.The court agreed with the state that the original traffic stop had ended when Riesen told defendant that he would issue her a warning for the traffic violation.The court further agreed that Riesen subsequently effected a new stop, but that, based upon the syringes that Riesen had seen in the car door, it had been a lawful stop supported by reasonable suspicion to investigate defendant for drug crimes.The court also concluded that defendant voluntarily consented to the searches of her purse and the red bag.

On appeal, defendant renews her argument that Riesen unlawfully seized her—either by extending the traffic stop when he walked with her to her car after signaling that she was free to leave, or, alternatively, by detaining her anew when he questioned her at the car about drug activity.According to defendant, Riesen did not have reasonable suspicion to justify either a continuation of the traffic stop or a new investigatory detention.As it argued in the trial court, the state responds that Riesen did not unlawfully seize defendant when he walked with her back to the car, and reasonable suspicion justified any detention that may have occurred at the car.²

On this record, defendant's first argument—that Riesen unlawfully seized her—is dispositive; it is therefore unnecessary to reach her second argument regarding the search of her purse.As the state acknowledged before the trial court, Riesen detained defendant after he had completed his traffic investigation when he asked her whether there was anything illegal in the car and asked to search her purse.Therefore, we assume, without deciding, that defendant was seized at that point, and we conclude that Riesen did not have reasonable suspicion to detain defendant to investigate her for a drug offense at that time.Thus, Riesen's detention of defendant was unlawful.Moreover, the state has not satisfied its burden of proving that defendant's consent to the search of her purse and the red bag was not the product of that unlawful seizure.Therefore, the evidence discovered inside the red bag—as well as defendant's incriminating statements made then and afterwards—should have been suppressed.Accordingly, the trial court erred in denying defendant's motion to suppress.

Because Riesen seized defendant to investigate potential drug crimes after the traffic stop had ended, that renewed seizure was lawful only if the circumstances supported reasonable suspicion that defendant was engaged in criminal activity.SeeState v....