State v. Presley

• Decision Date: 08 May 2002
• Citation: 46 P.3d 212,181 Or. App. 296
• Parties: STATE of Oregon, Appellant, v. Eric Lee PRESLEY, Respondent.
• Court: Oregon Court of Appeals

46 P.3d 212

181 Or. App. 296

STATE of Oregon, Appellant, v. Eric Lee PRESLEY, Respondent.

95-05-33796; A95653.

Court of Appeals of Oregon.

Submitted on Remand March 1, 2002.

Decided May 8, 2002.

Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and Rolf C. Moan, Assistant Attorney General, for appellant.

Sally L. Avera, Public Defender, and Irene B. Taylor, Deputy Public Defender, for respondent.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and ARMSTRONG, Judge.

EDMONDS, P.J.

This case is before us on remand from the Oregon Supreme Court. State v. Presley, 333 Or. 261, 39 P.3d 174 (2002). The state appeals from the trial court's grant of defendant's motion to suppress evidence and subsequent dismissal of the case, assigning error to the denial of the motion to suppress.¹ We vacate the suppression order and remand for the trial court to make additional findings.

When this case was before us previously, we held that ORS 136.432 removed the statutory basis for suppressing the evidence. We therefore vacated the suppression order and remanded the case for the court to make findings on issues that it had not previously considered. State v. Presley, 163 Or.App. 410, 988 P.2d 918 (1999), vacated 333 Or. 261, 39 P.3d 174 (2002). Thereafter, the Supreme Court held that ORS 136.432 could not constitutionally be applied to events that occurred before its adoption in 1997. State v. Fugate, 332 Or. 195, 26 P.3d 802 (2001). On remand in this case, the issues are whether the trial court correctly held that the officer violated ORS 810.410(3)(b) before asking for consent to search defendant and, if there was no violation, whether defendant consented to the search. If there was a statutory violation, the law as it existed before 1997 required suppression of the evidence without regard to whether defendant consented. Because the Supreme Court clarified the law in that regard after the trial court ruled, and because both that clarification and the issue of consent may require new factual findings, we again remand the case to the trial court.

Defendant was a passenger in a car that a police officer stopped for having an obscured license plate. The driver did not have a driver's license in his possession, and on investigation the officers discovered that there was an outstanding warrant for his arrest. They therefore arrested the driver and seized the car as "prisoner's property," intending to have it towed. After they made that decision, an officer told defendant and the other passenger to get out of the car and that they were free to leave. Defendant walked away a step or two and then turned around, told the officer that the owner of the car lived in a nearby house, and asked whether he could get the owner to come and take the car. The officer told defendant that the owner could not have the car and then asked whether defendant "had anything on him that he shouldn't have[.]" According to the officer, defendant said that he did not and offered to let the officer search him, which the officer did.

While the officer was searching defendant, another officer discovered a bag of white powder on the floor board of the car near where defendant had been sitting. He told the officer who was searching defendant to arrest him. The searching officer handcuffed defendant and continued his search, finding the evidence that is the subject of the motion to suppress. He then examined the white powder from the car and was able by looking at it to determine that it was baking powder rather than a controlled substance.

In ruling on defendant's motion to suppress, the trial court found that defendant was stopped when the officer stopped the vehicle in which he was riding, that he did not voluntarily come up to the officer and ask to be searched, and that the arrest was invalid because there was no probable cause to believe that the white powder was a controlled substance. There is evidence in the record to support those findings, and we are bound by them. See State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). To the degree that the trial court did not make express findings, we normally resolve disputed facts in a way that is consistent with its ultimate conclusion. See Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

The first issue is whether the officer violated ORS 810.410(3)(b) when he asked defendant whether he had anything "that he shouldn't have." Under the law that controls in this case, such a statutory violation would require suppression of the evidence. ORS 810.410(3)(b) authorizes a police officer to "stop and detain a person for a traffic violation for the purposes of investigation reasonably related to the traffic violation, identification and issuance of citation." An officer has no authority to restrain a person for any other purpose. Thus, the officer may not inquire into additional crimes or violations unless there is an independent basis for doing so. State v. Toevs, 327 Or. 525, 531, 964 P.2d 1007 (1998). For these purposes, a stop of a driver is a stop of a passenger, and the limitations on the officer's authority therefore apply to passengers as well as to the driver. State v. Taylor, 151 Or.App. 687, 691, 950 P.2d 930 (1997),rev. den. 327 Or. 432, 966 P.2d 222 (1998). A stop continues as long as the person stopped subjectively believes that the officer has restricted or interfered with the person's freedom of movement, provided that that belief is objectively reasonable. What matters is whether the officer has engaged in conduct beyond that accepted in ordinary social intercourse. Toevs, 327 Or. at 535,964 P.2d 1007. We have also held that a traffic stop continues until the person has had a "real time" opportunity to move on. That requires "a distinct temporal `break in the action' between an officer's indication that a motorist is free to go and any unrelated inquiries." State v. Hadley, 146 Or.App. 166, 172, 932 P.2d 1194 (1997).

In this case the trial court found that defendant had not volunteered to be searched and held that the officer did not have the authority to ask defendant to submit...