State v. Peterson

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: SERCOMBE
• Citation: State v. Peterson, 259 Or.App. 294, 313 P.3d 388 (Or. App. 2013)
• Decision Date: 06 November 2013
• Docket Number: A146017.,10C41311
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Myles Russel PETERSON, Defendant–Appellant.

259 Or.App. 294

313 P.3d 388

STATE of Oregon, Plaintiff–Respondent,

v.Myles Russel PETERSON, Defendant–Appellant.

10C41311; A146017.

Court of Appeals of Oregon.

Argued and Submitted Nov. 27, 2012.

Decided Nov. 6, 2013.

Jedediah Peterson, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Myles Russel Peterson filed the supplemental brief pro se.

Michael A. Casper, Deputy Solicitor General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and HASELTON, Chief Judge, and SERCOMBE, Judge.

SERCOMBE, J.

Defendant appeals a judgment of conviction on one count of delivery of heroin constituting a commercial drug offense, ORS 475.850 and ORS 475.900, and one count of possession of heroin, ORS 475.854. He asserts that the trial court erroneously denied his motion to suppress the evidence obtained from a search of his person and the statements that he made after an unlawfully extended traffic stop. We reverse and remand.¹

We review the trial court's denial of a motion to suppress for errors of law. ORS 138.220. The trial court's findings of fact are binding on appeal if there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). The following facts are taken from or are consistent with the trial court's findings.

Defendant was driving a Buick automobile when Officer Andrew Connolly saw him run a red light. Connolly activated his overhead lights, and defendant pulled into a parking lot. After defendant parked, Connolly blocked defendant's car into a parking space with his patrol car. Connolly asked for defendant's driver's license, insurance card, and registration. When defendant gave Connolly his license and insurance card,² Connolly recognizeddefendant from a previous encounter. During that encounter, defendant led police on a high speed chase, and police found ammunition and a knife in or near defendant's car. Connolly was also aware that defendant had been involved in another high speed chase, after which defendant had been subdued, and that defendant had a conviction for carrying a concealed weapon. Based on those safety concerns, Connolly called for backup. He also asked defendant if there were drugs, weapons, or anything illegal in the car. Defendant replied, “Not that I know of[.]”

A second officer arrived and “maintained on the car” with defendant. Connolly returned to his patrol car to write up a citation. After completing the citation, Connolly deactivated his lights, walked back to defendant's car, and returned defendant's documents. Connolly stood at the driver side window, facing the door. He gave defendant the citation and explained the court process. He told defendant that he was “free to go[.]”

Connolly then asked for consent to search defendant's car. Defendant did not consent. Instead, he asked why Connolly wanted to search his car, and Connolly replied that he had safety concerns based on their previous encounter. Defendant remarked that Connolly's patrol car was parked so close to his car that “he didn't feel that he could move.” Connolly offered to move his patrol car. Defendant did not say whether “he wanted [Connolly] to move the car or not[.]” Defendant again asked why Connolly wanted to search his car. Connolly reiterated his safety concerns, asking for consent to search a second time. Defendant “never answered that question yes or no[.]”

Defendant then said that he ran the red light because he had been “looking in the rearview mirror at a fat lip.” That remark “led to the defendant talking about having been in a fight” the night before. Connolly and defendant discussed whether defendant wanted to press charges against the person who injured him, but defendant said that he did not know if he wanted to press charges.

Seven to 10 minutes had elapsed since Connolly issued the citation. The second officer was still on the scene. While still standing at defendant's window talking with defendant, Connolly saw a for-sale sign for a 1998 Buick on defendant's rear floorboard. Connolly then remembered that the insurance card defendant had given him earlier was for an Acura, not for a Buick. Connolly asked defendant if the Buick was his, and defendant said that it was. Connolly then asked if defendant had insurance on the Buick. Defendant said that his parents took care of the insurance and that his mother had told him that the Buick was currently insured.

Connolly asked for the insurance card back, and defendant handed it over. Connolly said that he would have to verify the insurance information before defendant would be allowed to leave. Connolly returned to his patrol car and called the insurance company. He was told that defendant's parents did, in fact, insure four cars, but that the Buick was not one of them. Connolly went back to defendant's car and told defendant that he was under arrest for knowingly giving an officer false information about liability insurance. ORS 806.055.³ Incident to that arrest, Connolly searched defendant's pocket and found a Visine bottle containing heroin.

Before trial, defendant moved to suppress all statements made by him and all physical evidence seized from him. He contended, among other things, that he had been subjected to an unlawfully “expanded” traffic stop that violated his rights under Article I, section 9, of the Oregon Constitution.⁴ Defendant did not argue that the initial stop was unlawful, but asserted that it became unlawful when Connolly, without reasonable suspicion, inquired into matters unrelated to the traffic infraction and prevented him from driving away. The state responded that defendant's motion should be denied because the stop was not unlawfully extended or, even if it was, the police did not exploit that illegality.

After a hearing, the trial court denied defendant's motion. The court found that Connolly's initial request to search was “well grounded[.]” It further found

“that the stop was terminated, that the defendant was free to leave, that he could have just indicated that he did want to leave and did not. Whether or not the burden is on him to do or the State to make that possible so he doesn't have to ask that question is a matter for appellate review.”

In accordance with the trial court's ruling, the evidence was admitted at defendant's jury trial, and defendant was convicted.

Defendant appeals, renewing the arguments he made to the trial court. He does not assert that Connolly's initial question—whether there was anything illegal in the car—was unlawful. Rather, he contends that he was subjected to an unlawfully extended traffic stop when, after issuing a citation and telling defendant that he was free to go, Connolly made an unrelated request to search defendant's car. See State v. Gant, 237 Or.App. 74, 78, 239 P.3d 269 (2010) (an officer unlawfully extends the scope of an otherwise lawful stop “if the officer questions the person about matters unrelated to the basis for the stop without reasonable suspicion of further criminal activity”). To support his argument, he cites State v. Rodgers/Kirkeby, 347 Or. 610, 624, 227 P.3d 695 (2010): “[P]olice inquiries unrelated to a traffic violation, when combined with physical restraint or a police show of authority, may result in a restriction of personal freedom that violates Article I, section 9.” Defendant relies upon three cases for the proposition that a person can be restrained, even when an officer says that the person is free to leave: State v. Toevs, 327 Or. 525, 964 P.2d 1007 (1998); State v. Dominguez–Martinez, 321 Or. 206, 895 P.2d 306 (1995); and State v. Alvarez, 234 Or.App. 544, 228 P.3d 683,rev. den.,349 Or. 57, 240 P.3d 1098 (2010).

The state does not argue that Connolly's request to search was related to the traffic stop or justified by a reasonable suspicion of further criminal activity. Rather, the state responds that the stop was not unlawfully extended because defendant was free to leave but voluntarily chose to stay. It contends that Connolly twice told defendant that he could go—once by expressly stating that defendant was free to go, and once by offering to move his patrol car. The state further asserts that Connolly was not required to move his patrol car or take some other action to prove that he meant what he said. Rather, according to the state, Connolly's assurance that he would move his car was enough to show that defendant was truly at liberty to leave.

Thus, we are required to determine, under the totality of the circumstances, whether the police conduct “transgressed the limits of Article I, section 9, resulting in an unlawful seizure and, if so, whether the evidence * * * should be suppressed because it is a product of an unlawful seizure.” Rodgers/Kirkeby, 347 Or. at 624, 227 P.3d 695. Although we are bound by the trial court's findings of fact to the extent that those findings are supported by evidence in the record, we review without deference whether the trial court correctly applied the law to those facts. Id. at 625, 227 P.3d 695.

As noted, Article I, section 9, precludes unreasonable seizures. “[A] traffic stop is a temporary seizure that occurs when an officer restrains a person's liberty or freedom of movement.” State v. Amaya, 176 Or.App. 35, 43, 29 P.3d 1177 (2001), aff'd on other grounds,336 Or. 616, 89 P.3d 1163 (2004). While an officer may stop and briefly detain a motorist to investigate a noncriminal traffic violation, “[p]olice authority to detain a motorist dissipates when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed.” Rodgers/Kirkeby, 347 Or. at 623, 227 P.3d 695.Accordingly, when a police officer has all of the...