State v. Pichardo

• Citation: 326 P.3d 624,263 Or.App. 1
• Decision Date: 21 May 2014
• Docket Number: A150488.,110833156
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Victor Javier PICHARDO, Defendant–Appellant.
• Court: Court of Appeals of Oregon

263 Or.App. 1

326 P.3d 624

STATE of Oregon, Plaintiff–Respondent,

v.Victor Javier PICHARDO, Defendant–Appellant.

110833156; A150488.

Court of Appeals of Oregon.

Submitted Dec. 30, 2013.

Decided May 21, 2014.

Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

Before WOLLHEIM, Presiding Judge, and HASELTON, Chief Judge, and SCHUMAN, Senior Judge.

HASELTON, C.J.

Defendant, who entered a conditional plea of no contest, ORS 135.335(3),¹ for possession of heroin, ORS 475.854, appeals the resulting judgment, assigning error to the trial court's denial of his motion to suppress evidence. For the reasons amplified below, we conclude that the arresting officer unlawfully extended the duration of the stop in violation of Article I, section 9, of the Oregon Constitution² when he asked defendant about drugs without reasonable suspicion of criminal drug activity, and that the evidence that defendant seeks to suppress was the unattenuated product of that illegality. Accordingly, we conclude that the trial court erred in denying defendant's motion to suppress, and we reverse and remand.

We review the trial court's denial of defendant's motion to suppress for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In doing so, we are bound by the trial court's express and implicit factual findings if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts in accordance with that standard.

On August 2, 2011, Gresham Police Officer Long and his partner were dispatched to assist other officers who were looking for a wanted person, Hamilton, who had fled police officers on foot after they attempted to execute an arrest warrant. Long was not informed about the basis of that warrant. While driving in the neighborhood in which Hamilton had last been seen, Long and his partner saw defendant's car stopped and idling in a traffic lane. There were no other vehicles traveling on that street. Long believed that defendant was impeding traffic in violation of ORS 811.130.³ As Long watched defendant's car, a man who matched Hamilton's description ran to the car, opened the front passenger door, jumped in, and leaned the seat back. At that point, Long was “concerned” that defendant was helping Hamilton evade the police.

Long and his partner drove toward the front of defendant's car, activated the overhead lights on their patrol car, and parked in front of defendant's car. Another police car with its overhead lights on pulled behind defendant's car. While other officers arrested the front-seat passenger (who, indeed, was Hamilton), Long approached the driver's side window and asked defendant to step out of the car. Defendant complied. Long asked defendant for his driver's license and proof of insurance, and defendant responded that he had insurance but no driver's license.

Long then asked defendant for consent to search him for drugs. Defendant consented and admitted that he had heroin in his pocket, which Long located and seized. Long arrested defendant, placed him in handcuffs, advised him of his Miranda rights, and placed him in the back seat of a patrol car. Long then asked defendant for consent to search his car. Defendant consented, and admitted that there were drugs in the car, which Long located and seized.

Defendant was charged with possession of heroin. Defendant filed a pretrial motion, arguing that the stop and search violated Article I, section 9, and, therefore, the court should suppress “all evidence obtained as a result of an unlawful stop, including the seizure of any controlled substances and all oral derivative evidence.” Specifically, defendant argued that the initial stop was not supported by probable cause that defendant had parked his car “in a manner that impedes or blocks the normal and reasonable movement of traffic.” ORS 811.130(1). Defendant further argued that, even if the initial stop was lawful, Long unlawfully extended the scope and duration of the stop by asking about drugs without reasonable suspicion that defendantwas engaged in criminal drug activity.

The trial court denied defendant's motion, reasoning, with little elaboration, that “the duration and scope of the stop was all reasonable on the record.” Defendant entered a conditional guilty plea and appealed, assigning error to the denial of his motion to suppress and reprising his arguments before the trial court.

On appeal, the state remonstrates that Long lawfully stopped defendant based on objectively reasonable suspicion that defendant was attempting to help Hamilton evade the police. SeeORS 162.325 (crime of hindering prosecution); ORS 162.247 (crime of interfering with a peace officer). The state contends that, because defendant was lawfully detained based on objectively reasonable suspicion of criminal activity, defendant's remaining arguments concerning the duration and scope of the stop must fail. Finally, the state argues that, even if the stop was unlawful—either at the outset or by way of extension—defendant is not entitled to suppression because defendant's consent to search his person and his vehicle was attenuated from any preceding illegality.

We first consider whether the initial stop was supported by reasonable suspicion. State v. Rodgers/Kirkeby, 347 Or. 610, 621, 227 P.3d 695 (2010) (“[A] temporary restraint of a person's liberty for the purpose of criminal investigation— i.e., a ‘stop’—qualifies as a ‘seizure,’ under Article I, section 9, and must be justified by a reasonable suspicion of criminal activity.”). “If a police officer is able to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime, the officer has ‘reasonable suspicion’ and hence may stop the person for investigation.” Ehly, 317 Or. at 80, 854 P.2d 421. “Reasonable suspicion has two components: the officer must subjectively believe that the person is engaged in criminal activity, and that belief must be objectively reasonable.” State v. Espinoza–Barragan, 253 Or.App. 743, 747, 293 P.3d 1072 (2012).

Applying those principles to this case, we conclude that the initial stop was lawful. When Long approached defendant, Long subjectively believed that he had lawful authority to stop defendant based on a traffic violation. Additionally, based on the facts adduced at trial, we conclude that an objectively reasonable officer in Long's position would have suspected that defendant was attempting to help Hamilton evade the police. See State v. Miller, 345 Or. 176, 186, 191 P.3d 651 (2008) (explaining that an officer's expressed reason for making a stop does not control a court's determination of the legality of that stop). Accordingly, Long had reasonable suspicion to stop defendant to inquire about defendant's interactions with Hamilton and to gather information necessary to issue a traffic citation. Additionally, after Long discovered that defendant was driving without a driver's license, Long had probable cause to investigate circumstances surrounding that possible violation.

We next consider whether Long unlawfully extended the stop. A police officer does not necessarily violate Article I, section 9, by asking questions unrelated to the original reason for a stop. That is so because “verbal inquiries are not searches and seizures.” Rodgers/Kirkeby, 347 Or. at 622, 227 P.3d 695; see also State v. Amaya, 336 Or. 616, 626, 89 P.3d 1163 (2004) (rejecting the defendant's argument that “ every question by an officer that is unrelated to the reason for a valid traffic stop violates Article I, section 9, unless the question is based on reasonable suspicion” (emphasis in original)); State v. Gomes, 236 Or.App. 364, 371, 236 P.3d 841 (2010) (“[T]here are no Article I, section 9, implications if an inquiry unrelated to the traffic stop occurs during a routine stop but does not delay it.”). Nevertheless, in at least two situations, questioning unrelated to the original reason for a stop may lead to unlawful prolongation of the duration of the stop. As we explained in State v. Huggett, 228 Or.App. 569, 574, 209 P.3d 385 (2009), rev. dismissed,348 Or. 71, 228 P.3d 582 (2010) (citations omitted):

“In the first situation, an officer concludes a lawful stop (for example, by telling a person that he or she is free to leave) and then initiates a second stop by questioning the person about unrelated matters withoutreasonable suspicion of further criminal activity. In the second situation, an officer, without letting the person know expressly or by implication that he or she is free to leave, detains the person beyond the time reasonably required to investigate the initial basis for the stop and to issue a citation, without the requisite reasonable suspicion. In either case, the extension of a lawful stop is unlawful unless it is supported by reasonable suspicion of criminal activity.”

See also State v. Jimenez, 263 Or.App. 150, ––––, ––– P.3d ––––, 2014 WL 2118586 (May 21, 2014) (officer unlawfully extended the duration of a traffic stop by inquiring about weapons without reasonable suspicion that the defendant possessed a weapon or otherwise presented a safety threat) (slip op. at 8); State v. Pearson, 262 Or.App. 368, 371, 323 P.3d 994 (2014) (same); State v. Maciel, 254 Or.App. 530, 536, 295 P.3d 145 (2013) (officer unlawfully extended duration of stop when the officer shifted from investigating whether the vehicle was stolen to whether the defendant was engaged in drug trafficking); State v. Kentopp, 251 Or.App. 527, 534, 284 P.3d 564 (2012) (“[A]n officer's reasonable suspicion about certain crimes does not justify the officer's extension of a stop to conduct an investigation of another crime for which the officer does...