State v. Primeaux

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Sercombe
• Citation: State v. Primeaux, 216 P.3d 887, 230 Or. App. 470 (Or. App. 2009)
• Decision Date: 26 August 2009
• Docket Number: 06C49868.,A134910.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Gerald Wayne PRIMEAUX, Defendant-Appellant.

216 P.3d 887

230 Or. App. 470

STATE of Oregon, Plaintiff-Respondent, v. Gerald Wayne PRIMEAUX, Defendant-Appellant.

06C49868.

A134910.

Court of Appeals of Oregon, En Banc.

Submitted on February 6, 2009.

Resubmitted en banc June 17, 2009.

Decided August 26, 2009.

Garrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, Judges.

SERCOMBE, J.

Defendant appeals a judgment of conviction for delivery of a Schedule I controlled substance, ORS 475.840(1). Defendant contends that the trial court erred in denying his motion to suppress evidence and in convicting him on the basis of an insufficiently corroborated confession. We conclude that the evidence was sufficient to convict defendant. We review the denial of defendant's motion to suppress for legal error, State v. Sopiwnik, 176 Or.App. 127, 129, 30 P.3d 430 (2001), and determine that the court erred in denying the motion to suppress evidence. Accordingly, we reverse and remand.

The following facts are uncontroverted. A City of Aurora Police Officer observed an automobile driven by defendant with a missing brake light cover such that the radiated light was white in color. Oregon law requires that an automobile display a red rear brake light. The officer activated his patrol car's overhead lights to initiate a traffic stop. While he followed the automobile, defendant tossed a beer can out of the driver's window. The officer stopped the automobile and interviewed defendant. Defendant admitted that he had thrown the can of beer out the window, explaining that he "didn't want to get into trouble." Defendant also stated that he had consumed two beers. The officer asked defendant to get out of the vehicle and to produce identification. Although the officer could detect a slight odor of alcohol on defendant's breath, the officer determined that defendant was not intoxicated based on an examination of his eyes. The officer returned defendant's driver's license, warned him about driving with an open alcoholic beverage container and littering, and reminded him to get his brake light repaired.

The officer testified to what happened next:

"He [defendant]—said he understood, and he still just stood there. And he seemed kind of nervous. His hands were shaking. He kept looking back and forth. At that point, I asked him if there [were] any drugs or weapons in the car. [Defendant] said, `I'm just going to a party for my son.' And I asked him if a drug dog were to walk around the vehicle, if it would detect anything. And [defendant] said, `I have an ounce of marijuana in my car.'"

The officer testified that he had asked defendant where the marijuana was in the car and that defendant had told him that it was in his backpack. The officer then placed defendant in handcuffs, entered the car, and seized the backpack. The officer could smell the odor of marijuana emanating from the backpack, and, after opening its larger compartment, he found the marijuana that led to defendant's conviction.

In his second assignment of error, defendant argues that the trial court erred by not granting his motion for a judgment of acquittal on the ground that the evidence adduced at trial was not sufficient to convict him under ORS 136.425(1).¹ That statute provides:

"A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats; nor is a confession only sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed."

Defendant told the officer that he was delivering marijuana to a party for his son. In substance, defendant contends that his confession is the only evidence of his intent to deliver the marijuana found in his possession and that, therefore, the trial court was required to grant his motion under ORS 136.425(1).

In reviewing defendant's claim of error, we consider the record and all reasonable inferences that could be drawn from it in the light most favorable to the state to determine whether a reasonable juror could have found all the elements of the offense beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den., 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). In State v. Lerch, 296 Or. 377, 677 P.2d 678 (1984), the court held that ORS 136.425(1) does not require the state to corroborate each and every element of an offense to which a defendant has confessed. Rather, the statute "requires evidence that tends to prove or establish the corpus delicti. * * *

"* * * * *

"We hold that `some proof' means that there is enough evidence from which the jury may draw an inference that tends to establish or prove that a crime has been committed."

296 Or. at 397-98, 677 P.2d 678 (emphasis in original).

Here, the officer discovered two baggies of marijuana in defendant's backpack. One baggie contained 4.8 grams of marijuana; the other baggie's contents weighed 34.3 grams. The baggies were packaged separately, one in a baggie inside another container and the other in a baggie by itself. Focusing on that evidence, the state argues, and we agree, that a reasonable inference that could be drawn from the evidence is that the smaller amount of marijuana was for personal consumption and that the larger amount was for the purpose of delivery to other persons. See State v. Rodriguez-Barrera, 213 Or.App. 56, 60, 159 P.3d 1201, rev. den., 343 Or. 224, 168 P.3d 1155 (2007) ("[P]ossession of a controlled substance in a quantity that is inconsistent with personal use, when accompanied by possession of materials commonly associated with delivery, is sufficient to establish possession with intent to deliver the controlled substance."); see also State v. Alvarez-Garcia, 212 Or.App. 663, 159 P.3d 357 (2007). Thus, there is some evidence that tends to corroborate defendant's admission that he was delivering the marijuana to his son at a party. It follows that the trial court did not err in denying defendant's motion for judgment of acquittal.

Defendant next asserts that the trial court erred in denying his motion to suppress the evidence of marijuana and his statements to the police officer following the questions about drugs and weapons. Defendant contends that the evidence was obtained as a result of a violation of Article I, section 9, of the Oregon Constitution.² Defendant argues that the state acquired the evidence by unlawfully extending the traffic stop or, alternatively, stopping him for a second time by questioning him about drugs and what a drug dog would find. The stop extension or second stop occurred, according to defendant, without any reasonable suspicion that he had committed a crime. The state counters that the officer's statements made it clear that the traffic stop had ended and that defendant was free to leave before the questions were asked. Moreover, it asserts that the officer's questions about drugs or weapons and a drug dog did not constitute a second restraint on defendant's freedom of movement under Article I, section 9, because the questions did not manifest an exercise of the officer's authority.

We conclude that Article I, section 9, was violated when defendant was questioned during a traffic stop about matters unrelated to the stop, thereby prolonging the stop without reasonable suspicion of further criminal activity. As a result of that unlawful questioning, defendant's backpack was confiscated and searched. That search and the unlawful inquiries yielded the evidence sought to be suppressed. Under State v. Hall, 339 Or. 7, 25, 115 P.3d 908 (2005), that evidence should have been suppressed because its discovery was not otherwise inevitable or sufficiently attenuated from the unlawful police conduct.

The legal analysis is straightforward. Article I, section 9, precludes an "unreasonable search, or seizure." We summarized the circumstances that create an unreasonable traffic stop in State v. Rodgers, 219 Or.App. 366, 370-71, 182 P.3d 209, rev. allowed, 345 Or. 301, 194 P.3d 147 (2008):

"To be reasonable, traffic stops must be supported by reasonable suspicion that the person stopped has committed a traffic infraction. If reasonable suspicion of a traffic infraction exists, `[a]n officer can lawfully detain a driver * * * for "the time reasonably required to complete a citation and any other documents that must be given to the citizen in connection with the detention."' During a lawful traffic stop an officer may, without violating Article I, section 9, question the motorist about matters that are unrelated to the stop. Questioning that occurs during, or causes, an extension of the traffic stop beyond that reasonable time, however, is the functional equivalent of a new restraint of the motorist's liberty, and must be supported by reasonable suspicion that the motorist has engaged in some further criminal activity. * * *

"Inquiries unrelated to the initial traffic infraction can lead to unlawful restraint of a person's liberty in two situations. The first occurs when the officer concludes a lawful stop and then reinitiates a second stop by beginning to question the person about unrelated matters without reasonable suspicion. * * *

"The second way in which an officer can unlawfully question a person after a lawful traffic stop occurs when the 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 traffic infraction and issue a citation."

(Emphasis in original; citations omitted.)

The state does not contend, and...