State v. Phillips

• Decision Date: 04 March 2020
• Docket Number: A164790
• Citation: 302 Or.App. 618,459 P.3d 909
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jacqueline Marie PHILLIPS, Defendant-Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 618

459 P.3d 909

STATE of Oregon, Plaintiff-Respondent,

v.Jacqueline Marie PHILLIPS, Defendant-Appellant.

A164790

Court of Appeals of Oregon.

Submitted January 15, 2019.

March 4, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John P. Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore.

Defendant appeals a judgment of conviction for one count of unlawful delivery of methamphetamine and one count of unlawful possession of methamphetamine, challenging the trial court’s denial of her motion to suppress. For the reasons set out below, we conclude that the trial court correctly denied defendant’s motion. Accordingly, we affirm.

We set out the facts consistently with the explicit and implicit findings that the trial court made in the course of denying defendant’s suppression motion, which the record supports. See State v. Dodge , 297 Or. App. 30, 33, 441 P.3d 599, rev. den. , 365 Or. 533, 451 P.3d 607 (2019) ("In reviewing the trial court’s denial of defendant’s suppression motion, we are bound by the trial court’s findings of historical fact so long as evidence in the record supports them.").

Police officers found methamphetamine at defendant’s residence, a unit in a manufactured-home park, after they visited her while searching for a stolen firearm. Officers were following up on information that another person, DK, had possession of that stolen gun; they also believed that DK, along with his father, RK, were inside another unit in the same manufactured-home park. RK had commented to multiple people that he "was thinking about committing ‘suicide by cop.’ "

Officer Scharmota and several others arrived at the park and attempted repeatedly to contact DK and RK at the residence where police thought they were located, initially without success. The activity drew attention from other people at the park; officers tried to direct people away from the area and to stay in their homes. Officers also learned that other people inside the residence were acquainted with defendant, who lived 50 to 100 yards away. A detective (Meade) went to defendant’s residence to see if she had any information about RK’s location. Defendant also learned about the police activity from a neighbor who had called to tell her about it. In the meantime, and after about 50 minutes of attempted communication, RK said he would come outside. He and DK were taken into custody without incident.

Most officers then left the scene, but some, including Scharmota, remained. RK told the officers that he had given the stolen gun to another tenant in the park—defendant—in exchange for methamphetamine. After talking with RK for about 20 minutes, Scharmota walked to defendant’s unit and saw her and Meade standing on the porch outside of her door, talking. Defendant "was very relaxed" and polite; she and Meade were engaged in "non-confrontational," calm conversation. It was about 4:30 p.m. when Scharmota got to defendant’s unit.

Scharmota told defendant that he had information that RK "had brought the gun to her" and traded it for drugs; he explained that police "were still looking into trying to figure out where this gun was." Defendant denied having any drugs or a gun in her home and invited the officers to come in and search. Scharmota said something like, "we might get to that point," but he did not tell defendant that she could be arrested or charged with a crime. After about 10 to 15 minutes of conversation on the porch, defendant "asked if we could go inside so she could sit down," inviting Scharmota into the residence. Scharmota described the conversation as "killing time until somebody else could come down there and assist [him] with searching the residence." He and defendant engaged in nonconfrontational, "very mild" and "comfortable" conversation, but Scharmota "did ask her a little bit more about the presence of guns and drugs in the house," and Scharmota "would imagine" that, in a nonconfrontational way, he had asked defendant to be honest with him or said "that we would appreciate her cooperation and her being honest." However, Scharmota did not threaten to arrest defendant; nor did he promise her any leniency. Defendant invited Scharmota to search the residence "several times." Scharmota did not search the residence at that point because he was alone and without cover (at some point, Meade had left).

After Scharmota had been alone with defendant for about 15 or 20 minutes, two officers (Murphy and Green) arrived. Defendant again invited a search of her home. Murphy testified at the suppression hearing that defendant had "a very relaxed demeanor kind of dictated by her own willingness" to allow the officers to search; he testified that he did not pressure her by stating that "something else would happen" if she did not consent. Scharmota began to search, starting with the bedroom. Immediately upon entering that room, he saw a baggie with a white substance that he believed to be methamphetamine. Scharmota brought the baggie into the living room and told Murphy what he had found. Murphy then asked defendant if there were any additional drugs, and defendant said she needed to use the bathroom. Murphy asked if any methamphetamine was in that room, and defendant said, "Yes, under the sink." Defendant’s demeanor had not changed at that point; nor had Murphy threatened her in any way. Murphy described defendant as "kind of nonchalant." Scharmota testified that defendant "was giving off the demeanor that she was trying to help us and answer our questions and be cooperative with us."

Scharmota looked under the bathroom sink and found a "methamphetamine bong" but no drugs; he then returned to the living room and asked for more information. Defendant said there was a makeup bag under the sink, giving "pretty specific directions on where to find the drugs." Scharmota "felt [defendant] was trying to be helpful and be honest with us"; he returned to the bathroom and found a digital scale, plastic baggies, and methamphetamine in the bag that defendant had described. Defendant said that the items had been left there by one of her friends, but she acknowledged that her fingerprints would be on them. Defendant went to use the bathroom after the officers had retrieved the methamphetamine from that room; while she was there, Murphy found additional methamphetamine in the living room.

Additional conversation and questioning occurred after that point, related solely to the stolen gun, which officers eventually found in defendant’s bedroom based on information that defendant had provided. At that point, Murphy told defendant that she could be lodged in jail, although the officers would not take her to jail that day, and that he would "be referring it to the District Attorney’s Office." Murphy had not previously made any statements to defendant about jail or submitting the case to the prosecutor.

The officers left defendant’s residence at about the same time, clearing the scene at 5:43 p.m. Scharmota had spent about an hour and 15 minutes at defendant’s home at that point. During that time, Scharmota never restricted defendant’s movement, he never told defendant that she could not leave the residence, and defendant never asked to leave. Murphy described the scene as having been "fluid," with a few officers coming and going, but no more than three officers in the residence at any one time. Murphy did not observe any officers make threats or arguments.

Defendant remained calm throughout. Neither Scharmota nor Murphy ever read Miranda warnings during the encounter, and neither of them heard any other officer give those warnings.

A neighbor testified at the suppression hearing that defendant told her, after the incident, that she had been "so intimidated" by the officers who went to her home.

After being charged with possession and delivery of methamphetamine, defendant moved to suppress evidence found during the search. The trial court denied the motion, having found that defendant "volunteered to allow the law enforcement into her home and consented to a search" of "the whole place." The court also ruled that defendant had not been in compelling circumstances that necessitated Miranda warnings, even after "she [was] presented with the initial drugs" found by the officers. After the court denied defendant’s suppression motion, she entered a conditional guilty plea and received a probationary sentence.

On appeal, defendant argues that the trial court erred when it denied her suppression motion. Defendant contends that she was in compelling circumstances and, therefore, the officers should have provided Miranda warnings before questioning her. According to defendant, the circumstances became compelling either when Scharmota told her that he had information that she had traded drugs for the stolen gun or when officers later discovered methamphetamine in defendant’s bedroom and asked her whether additional drugs were present. In either case, defendant argues, later-discovered evidence should have been suppressed because its discovery derived from the preceding Miranda violation. In response, the state argues that defendant was never in compelling circumstances and Miranda warnings were therefore not required. The state further argues that defendant voluntarily consented to the search of her residence and that her voluntary consent attenuated any Miranda violation that had occurred.

Our evaluation of the parties’ arguments starts with basic principles. Article I, section 12, of the Oregon Constitution provides that "[n]o person shall be * * * compelled in any criminal prosecution to testify against himself." To protect that right against...