State v. Orman
| Decision Date | 16 November 2022 |
| Docket Number | A171638 |
| Citation | 322 Or.App. 707,521 P.3d 506 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Greggory Lee ORMAN, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Mooney, Presiding Judge, and Hellman, Judge, and DeVore, Senior Judge.*
Defendant appeals his convictions on seven counts of identity theft, ORS 165.800, one count of second-degree forgery, ORS 165.007, and one count of unlawful possession of heroin, ORS 475.854(2)(a), based on a conditional guilty plea, pending this appeal. Defendant filed a motion to suppress evidence discovered during a warrantless search of his bag during a traffic stop in which he was a passenger in the car, arguing that he was unlawfully stopped and thus the evidence discovered was tainted by the illegal seizure. The trial court concluded that the stop of the car was lawful and that the evidence was admissible under three different exceptions to the warrant requirement: consent, the automobile exception, and search-incident-to-arrest. We hold that the trial court erred in denying the motion to suppress, as defendant himself was illegally stopped prior to the search of his bag and the state failed to meet its burden of proving that the discovered evidence was nonetheless admissible. Accordingly, we reverse and remand.
We review a trial court's denial of a motion to suppress for legal error. State v. Rodriguez-Perez , 262 Or App 206, 208, 325 P.3d 39 (2014). We are bound by the trial court's findings of fact so long as there is sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We recount the facts below in some detail given the nature of the arguments, the complexity of the incident, and the fact that the trial court made no explicit ruling on whether defendant was seized under Article I, section 9. The facts come both from the testimony given at the suppression hearing as well as the extensive police body camera footage, which the trial court reviewed and summarized during its oral ruling on the motion to suppress. Where necessary, we supplement the trial court's summary of the events, including providing important time stamps from the record.
On the night of November 23, 2018, defendant was a passenger in a vehicle driven by his fiancée, LeClaire, when they were stopped by Officer Henderson for speeding and lack of insurance on the vehicle. At the beginning of the stop, LeClaire stated that she did not have her driver's license on her, and defendant offered his license to Henderson. LeClaire gave Henderson a false name, but when pressed for a middle name and date of birth, she admitted to providing a false name and gave Henderson her real name and driver's license, explaining that her license was suspended and that she might have an outstanding warrant. LeClaire was detained and read her rights. Defendant remained in the vehicle.
Henderson then asked defendant if his license was "good," and defendant said yes and stated he should have been the one driving because LeClaire's license was suspended. At the suppression hearing, Henderson testified that he was initially suspicious of the validity of the license defendant had handed him, due to its coloring and because it was "funny looking." Henderson had dispatch run defendant's license, which was under the name DT, and dispatch subsequently informed Henderson that the license number was valid. The information from dispatch came in seven and one-half minutes into the stop. Henderson did not return the license to defendant at that time.
Henderson obtained consent from LeClaire to search the vehicle, and asked defendant to step out and walk LeClaire's dog for a minute. The dog, a large German Shephard, was in the back seat of the car and barked at Henderson when he approached the vehicle. Defendant complied with Henderson's request, and, as he exited the vehicle, he took a computer bag with him. Henderson asked if there was anything in the bag, and defendant answered, "Just computers, two really expensive laptops," and offered to show Henderson. Henderson did not look inside the bag at that time and began his search of the car.
Henderson asked if there was anything in the car that defendant knew about, and defendant said no.1 While Henderson searched the car, he asked defendant about where he and LeClaire lived and what they were doing in town,2 and discussed defendant getting insurance put on the car. During the search of the vehicle, Henderson was informed by dispatch that there was an unentered warrant for LeClaire's arrest. Henderson informed dispatch that LeClaire was in custody, and he requested a cover unit. Also during the search, Henderson found a needle in a backpack and a bank card with the name LeClaire had initially given at the beginning of the stop. By that point, the stop had lasted 26 minutes.
Deputy Tugwell arrived on the scene. Henderson filled him in on what had happened so far and indicated that he had not had a chance to talk to defendant much, but that defendant had been adamant to get the computer bag out of the car with him. Henderson asked Tugwell to try to build a rapport with defendant and see if he could get defendant to let them pat him down. Tugwell stood by defendant and spoke to him while Henderson continued to search the vehicle.
Thirty-one minutes into the stop, Henderson discovered three Washington State driver's licenses, with three different names, all with LeClaire's picture on them. After showing them to Tugwell and asking LeClaire about them, Henderson asked defendant if he knew anything about the fake IDs. Defendant denied any knowledge of them. Henderson and Tugwell compared the fake IDs to the Washington driver's license defendant had provided at the beginning of the traffic stop (which Henderson still had in his possession) and wondered how to tell the difference. Henderson testified at the suppression hearing that it was at this point that he formed reasonable suspicion that defendant had committed some sort of crime. Henderson returned to his patrol car, asked LeClaire if defendant's ID was fake, and called dispatch to request a photo from Washington to try to confirm whether defendant was the person listed on the identification.
While Henderson waited for a response, Tugwell continued to stand next to defendant and talk to him, asking defendant if he would consent to Tugwell looking through the computer bag, noting his concern for safety and that the events of the evening were curious and getting weirder. Defendant did not consent to a search of his bag, initially explaining that he did not want his computers to get wet in the rain, and eventually stating that he knew his rights and was not consenting at that time. However, he did at one point open the bag to let Tugwell see inside the top.
Henderson then received a photo from dispatch of the person associated with the DT license defendant had provided. He showed the picture to defendant and said that defendant was not being honest about something because he did not match the picture. Defendant told Henderson that he had been the victim of identity theft years earlier. Henderson stated that he was very suspicious based on the fake IDs found in the car and their similarity to the ID defendant had provided. Henderson asked defendant for his social security number and defendant provided a number. Henderson continued to investigate defendant's identity, attempting to get confirmation one way or another from dispatch whether defendant really was DT. He also asked defendant again whether he had anything on him and whether he would consent to a pat down or search of his bag. Defendant indicated that Tugwell had looked in the bag, and again opened the top to show the computers, but did not otherwise consent to a search of his person or bag.
While waiting for information from dispatch, Henderson continued his search of LeClaire's vehicle and found a pipe, which LeClaire confirmed would test positive for heroin. He also found another driver's license, for JB.
Henderson then received a call from dispatch informing him that the information the dispatcher had received from Washington matched the information she had provided to Henderson earlier, and that DT was a victim of identity theft.3 Henderson told defendant that it sounded like everything he was saying was lining up, and defendant asked what he was to do now, as he obviously was not taking the car.
One hour and 16 minutes into the incident, a third officer arrived on the scene. Henderson filled him in on the progress so far and indicated that defendant was acting a little weird. The new officer asked if Henderson had searched defendant's bag. Henderson told him no, that he had only "kind of" seen inside. The new officer told Henderson that he had probable cause to search defendant's bag. Henderson then went to defendant and said, "From what I'm seeing in the car, can I see inside your bag?" Defendant said "yeah" and opened the bag. He began naming items as Henderson looked inside with a flashlight. It was at that point that Henderson spotted a needle in the bag. Defendant said that it was not his, that he had picked stuff up from the car when the police pulled them over, because he did not want LeClaire to get in trouble. Henderson then took the bag from defendant and placed it on the hood of his patrol vehicle for a further search. Upon the full search of the bag Henderson found multiple IDs and social security cards for other people. At that point, defendant was detained and handcuffed. Officer...
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