State v. Paskar

• Jurisdiction: Oregon
• Citation: State v. Paskar, 271 Or App 826, 352 P.3d 1279 (Or. App. 2015)
• Docket Number: 122974,A154885.
• Parties: STATE of Oregon, Plaintiff–Appellant, v. Gregory PASKAR, Defendant–Respondent.
• Court: Oregon Court of Appeals
• Decision Date: 17 June 2015

271 Or.App. 826

352 P.3d 1279

STATE of Oregon, Plaintiff–Appellant

v.Gregory PASKAR, Defendant–Respondent.

122974

A154885.

Court of Appeals of Oregon.

Argued and Submitted Feb. 24, 2015.

Decided June 17, 2015.

Anna M. Joyce, Solicitor General, argued the cause for appellant.With her on the brief was Ellen F. Rosenblum, Attorney General.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for respondent.With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

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

Opinion

TOOKEY, J.

In this criminal case, one of three related cases that we decide today, seeState v. Anton,271 Or.App. 860, 353 P.3d 596, 2015 WL 3770955(2015);State v. Ene,271 Or.App. 858, 353 P.3d 597, 2015 WL 3770979(2015), the state appeals the trial court's order granting defendant's pretrial motion to suppress evidence.ORS 138.060(1)(c).State police troopers discovered the evidence during an encounter with defendant and his codefendants, Anton and Ene, that took place 28 miles offshore from Newport while the three men were fishing.We agree with the trial court that the troopers seized defendant in violation of Article I, section 9, of the Oregon Constitution when they announced that they would inspect all three codefendants' halibut tags.Accordingly, we affirm.

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.On appeal, “[o]ur function is to decide whether the trial court applied legal principles correctly to those facts.”Id.The trial court made extensive findings of fact, and we draw the following facts from those findings and undisputed facts in the record.

On August 18, 2012, Oregon State Police troopers Canfield and Van Meter were on patrol 28 miles offshore in an all-depth halibut fishery.¹They were in a Zodiac vessel that had no police insignia but did have blue lights and a siren.The troopers were in uniform and wearing their badges.

There were many boats in the area that the troopers were patrolling, which is known as the chicken ranch.The first boat that the troopers encountered was a 22–foot open boat of which defendant, Anton, and Ene were the only occupants.As the officers first approached the boat, defendant's line was in the water, and he was landing a fish.The troopers waited at a distance of 10 to 15 yards until the fish was landed.They observed that it was a yellow-eye rockfish, a species prohibited to keep in that fishery.

Defendant landed and released the yellow-eye rockfish without removing it from the water.A fish that is brought up from several hundred feet below the surface and then released at the surface will die.Canfield testified that the State Department of Fish and Wildlife has recently made devices available to anglers that increase a fish's chances of survival after it is caught and released; use of those devices is not required, but an angler must release a prohibited species unharmed.Defendant did not use any such device to increase the fish's chances of survival.As a result, after defendant released the fish, it floated belly-up at the surface.At that point, in Canfield's view, defendant, Anton, and Ene were no longer free to leave.

After defendant released the fish and it floated away, the troopers approached to within five to 10 feet of the boat and asked defendant, Anton, and Ene if they had caught any fish that day.Anton responded that they had caught three halibut.Canfield testified that halibut tags must be validated immediately after a halibut is caught.

Canfield “announced that the troopers would approach to inspect the halibut tags.”He said, “we'd like to look at your tags; please get them out for us,” or something very similar.His statement “had the tone and content of a command * * *, as opposed to being a mere question to the men.”The purpose of the inspection “was to make sure that [the tags] had been validated, in other words, to make sure that the men had not committed a crime by failing to properly record the catch.”The troopers pulled closer and grabbed the boat.

Defendant, Anton, and Ene gave their tags to the troopers, who observed that the tags had not been validated.Canfield then asked to inspect the fish, and one of the three men opened a cooler on the deck.In the cooler, Canfield saw halibut as well as two prohibited species—canary rockfish and ling cod.

The troopers were relaxed and conversational throughout the encounter.When they grabbed the boat, their primary purpose was “to check the halibut tags and see what fish had been landed.”Canfield could not remember whether they eventually warned the men about defendant's failure to release the yellow-eye rockfish unharmed.Van Meter testified that, at some point during the interaction, the troopers did give a verbal warning, but she did not remember when.

The troopers testified that it is common for anglers in one boat to ask anglers in another boat how the angling is going.Canfield explained that, while troopers are “talking with a boat, checking things,” another boat will sometimes “pull over, start kidding their buddies about being checked.”When people talk between boats, the people in one boat often hold onto the other boat to avoid having the boats bang together or separate.There were two- to three-foot swells and a light breeze when the troopers grabbed the boat, so the troopers grabbed the boat for the safety of the occupants of both boats.

Based on the troopers' observation of his unmarked halibut tag and the fish in the cooler, defendant was charged with three counts of violating sport fishing regulations with a criminally negligent mental state.²

Each count was charged as a Class A misdemeanor, seeORS 496.992(1)(“Except as otherwise provided by this section or other law, a violation of any provision of the wildlife laws, or any rule adopted pursuant to the wildlife laws, is a Class A misdemeanor if the offense is committed with a culpable mental state.”), and, accordingly, carried a penalty of up to one year of imprisonment, ORS 161.615(1), and a fine of up to $6,250, ORS 161.635(1)(a).Anton and Ene were each charged with two counts of violating sport fishing regulations with a criminally negligent mental state, also Class A misdemeanors.

Defendant, Anton, and Ene each moved to suppress the evidence that the troopers had obtained through their contact with the men, arguing that the troopers had stopped them in violation of Article I, section 9, and the Fourth Amendment to the United States Constitution and that the troopers had exploited the illegal stop to obtain the evidence.At a joint hearing on the three codefendants' motions to suppress, the state contended, inter alia, that the troopers had never stopped the men; that, even if the troopers had stopped the men, the stop was justified by, at least, reasonable suspicion that defendant had committed a crime—criminally negligent failure to release the yellow-eye rockfish unharmed; and that the troopers had obtained the evidence through a lawful administrative search.

The trial court agreed with defendant, Anton, and Ene.It first rejected the state's argument that the search was a lawful administrative search, noting that, “[i]f offenders face criminal sanctions, the inspection implicates criminal law enforcement purposes and is not ‘administrative in nature.’ ”Nelson v. Lane County,304 Or. 97, 104, 743 P.2d 692(1987).Then it concluded that the troopers had probable cause to believe that defendant had failed to release the yellow-eye rockfish unharmed.Thus, the court reasoned, the troopers were entitled to stop defendant for the purpose of issuing a warning or charging him with a crime or violation regarding the yellow-eye rockfish.

The court concluded that the troopers stopped all three men when Canfield “announced”“we'd like to look at your tags; please get them out for us.”The court determined that “[s]uch a statement is not a request to inspect, but an announcement that an inspection is forthcoming.It is a show of authority.”The court explained that the announcement “converted the ‘mere encounter’ into a ‘stop’ ” because it was “ ‘conduct significantly beyond that accepted in ordinary social intercourse.’ ”(QuotingState v. Holmes,311 Or. 400, 410, 813 P.2d 28(1991).)The court concluded that Canfield's question whether the men had caught any fish that day, by contrast, was mere conversation.Ultimately, the court concluded that, pursuant to State v. Rodgers/Kirkeby,347 Or. 610, 227 P.3d 695(2010), the troopers' requests to inspect the three men's halibut tags violated Article I, section 9, because the stop was not related to the release of the yellow-eye rockfish; rather, it was focused on the men's halibut-related activities.³In arguing that point at the hearing, counsel for defendant Anton explained that “the yellow-eye rockfish is a red herring.”

Accordingly, the court granted defendant's motion to suppress.Pursuant to ORS 138.060(1)(c), the state appeals, arguing that the troopers did not stop defendant, and, that, even if there was a stop, it was justified by the troopers' observation of defendant's failure to release the yellow-eye rockfish unharmed.

Article I, section 9, guarantees individuals the right to be “secure in their persons, houses, papers and effects, against unreasonable search, or seizure.”Under that provision, government officials may not “embark on a search or seizure for evidence to be used for [a criminal prosecution]” absent “individualized suspicion of wrongdoing.”State v. Boyanovsky,304 Or. 131, 134, 743 P.2d 711(1987).

“[I]n determining whether a particular governmental action violates Article I, section 9, of the...