State v. Prouty

• Decision Date: 23 June 2021
• Docket Number: A169110
• Citation: 492 P.3d 734,312 Or.App. 495
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Thomas George PROUTY, Defendant-Appellant.

312 Or.App. 495

492 P.3d 734

STATE of Oregon, Plaintiff-Respondent,

v.Thomas George PROUTY, Defendant-Appellant.

A169110

Court of Appeals of Oregon.

Argued and submitted June 25, 2020

June 23, 2021

Francis C. Gieringer, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

SHORR, J.

Defendant appeals from a judgment of conviction for delivery of methamphetamine, ORS 475.890 ; possession of methamphetamine, ORS 475.894 ; and possession of heroin, ORS 475.854. He assigns error to the trial court's denial of his motion to suppress evidence that he contends was discovered as the result of an unlawful seizure under Article I, section 9, of the Oregon Constitution.¹ The state argues that defendant was not seized and that, if he was, the seizure was lawful under the officer-safety doctrine. For the reasons discussed below, we conclude that, under the totality of the circumstances, defendant was seized prior to the discovery of the evidence he seeks to suppress, and that the seizure was not justified by officer-safety concerns. Consequently, we reverse and remand.

We review the denial of defendant's motion to suppress for legal error, and we are bound by the trial court's findings of historical fact if the evidence in the record supports them. To the extent that the court failed to make express findings on pertinent historical facts, we will presume that the court found those facts in a manner consistent with its ultimate conclusion. State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017). We state the facts, which are undisputed, in accordance with that standard of review.

At around 3:00 a.m., Oregon State Trooper Nelson responded to a call complaining of unsafe driving on I-5. Nelson located the vehicle and observed that the driver was frequently speeding up and slowing down, driving over the speed limit, and "drifting side to side within the lane." From the manner of driving, Nelson believed that the driver was likely driving under the influence of intoxicants (DUII). At 3:17 a.m., Nelson activated the siren on his unmarked patrol vehicle and stopped the driver, who pulled over to the left shoulder of I-5 so that the vehicle was in the median between the north- and south-bound lanes of traffic.

Nelson approached the driver's side of the car and asked the driver, Templeton, for her license and registration. Templeton had difficulty locating her registration and appeared "restless" and "overly talkative." From Templeton's behavior, Nelson suspected that Templeton was "under the influence of a stimulant." Nelson also asked defendant, who was seated in the front passenger seat, for identification. Nelson copied the information from defendant's license and returned the license to defendant before returning to his patrol car. Nelson testified that it was routine to "try to identify everybody on a traffic stop." He also did so because defendant was a potential witness to a DUII investigation. During that brief interaction with defendant, Nelson observed that defendant was "on the nod" and "docile."

At his patrol car, Nelson contacted dispatch to check Templeton's and defendant's warrant status. Nelson did not inform Templeton or defendant that he intended to check their warrant status. Neither Templeton nor defendant had any outstanding warrants, but defendant was flagged as an "armed career criminal" and his driver's license was suspended. After Nelson learned that defendant was listed as an "armed career criminal," Nelson was concerned that defendant might present a safety risk.

Nelson returned to Templeton's car and asked her to perform field sobriety tests (FSTs). Templeton agreed, and Nelson and Templeton moved to the front of Nelson's patrol car to conduct the tests. Nelson did not tell defendant that he was free to leave, or otherwise interact with defendant, who remained in the front passenger seat. Nelson testified that there was traffic on I-5 at that time, and that there was no "safe passage" to cross the freeway. According to Nelson, it would have been "extremely dangerous" to try to cross the freeway because of the heavy traffic and time of night.

At some point during the FSTs, Trooper Kendoll arrived to assist Nelson with the investigation. Nelson asked Kendoll to "keep an eye on" defendant. Kendoll walked up to the driver's side of the car and bent down to look at defendant through the driver's side window. After one or two minutes, Kendoll stepped back several feet and continued watching defendant from a standing position. Nelson asked Kendoll to watch defendant "for officer safety" and because he was concerned that defendant "could possibly have a weapon or something to that effect."

Around 30 minutes after Nelson initiated the traffic stop, he arrested Templeton for DUII. Kendoll left his position near Templeton's car to assist with the arrest. Nelson decided to search Templeton's car because he believed there might be evidence of prior methamphetamine use inside. While the troopers walked back to the car, they discussed what to do with defendant, who was still sitting in the passenger seat. Nelson told Kendoll that he wanted "to make sure that [defendant] didn't stuff anything on his person because [Templeton was] high on meth." In response, Kendoll offered to "take [defendant] to the front of [Nelson's] car and search him." Nelson agreed and explained that he wanted "to make sure [defendant] didn't stuff anything anywhere in the car."

Nelson approached the driver's side of the car while Kendoll stood at the passenger door. Nelson asked defendant to "follow this other trooper's instructions" and to "step out for me." Instead of exiting the car, defendant asked Nelson why he was being questioned. In response, Nelson stated, "Why are you being questioned? I want you to step out of the car." Defendant complied, and Kendoll stood close to defendant as he exited the car. Kendoll testified that he stood next to defendant for safety reasons, to ensure that defendant would not step into traffic, and that defendant would not reach for any weapons. Nelson testified that defendant was free to leave at that time, however, he also stated that he would have stopped defendant from crossing the freeway for defendant's safety.

Kendoll closely escorted defendant to the front of Nelson's car. Kendoll told defendant that he was not under arrest but did not tell defendant that he was free to leave. At Nelson's car, Kendoll asked defendant to submit to a patdown for weapons. Defendant consented. During the patdown, Kendoll asked defendant about objects in defendant's pockets that "concerned [him]," but did not feel like weapons. Defendant told Kendoll that the items were a pack of cigarettes and binoculars. Kendoll did not search the inside of defendant's pockets.

After the patdown, Kendoll watched defendant while Nelson continued his search of the car. Kendoll described his demeanor as "relaxed" and explained that he "didn't have any sense *** that [defendant] was a threat to [the troopers]." Defendant asked Kendoll for permission to sit on the ground and smoke a cigarette. Kendoll agreed. At some point while defendant was sitting on the ground, Kendoll saw defendant pull something out of his pocket and place it on the ground. Kendoll did not know what the object was and he did not attempt to inspect it or ask defendant what it was.

Meanwhile, Nelson had searched the driver's side, backseat, and trunk of the car. Several minutes after the patdown, Nelson started searching the passenger's side. Under the passenger's seat, he found a box that held a methamphetamine pipe and a small plastic bag with a gas mask emblem printed on it. The plastic bag contained methamphetamine and heroin. Nelson also searched a backpack that was sitting on the floor in front of the passenger seat. Inside the backpack, Nelson found more methamphetamine, drug paraphernalia, and defendant's wallet.

A short time later, defendant asked Kendoll if he could leave the scene. Kendoll approached Nelson, who was still searching the passenger's side, to ask if defendant was free to go. Nelson told Kendoll that defendant was not free to leave because of the items that Nelson had discovered in defendant's backpack and under the passenger seat.

The troopers returned to Nelson's car where defendant was sitting. At that point, Nelson observed several items next to defendant on the ground. Among those items were plastic bags containing methamphetamine and heroin, including plastic bags with the same gas mask emblem as the bags discovered in the car. Kendoll told Nelson that defendant had pulled those items from his pocket while he was sitting on the ground. Just after 4:00 a.m., Nelson arrested defendant for possession of methamphetamine and heroin. Eventually Nelson issued a citation to defendant, and Kendoll drove defendant to a nearby truck stop.

Before trial, defendant moved to suppress the evidence discovered during the course of the traffic stop and resulting investigation, arguing that he was unlawfully seized in violation of Article I, section 9, and the Fourth Amendment to the United States Constitution. The trial court denied defendant's motion, concluding that defendant was not stopped at any point prior to the discovery of the evidence that defendant sought to suppress. The court reasoned that neither Nelson's momentary retention of defendant's license nor check of defendant's warrant status constituted a stop. And, Nelson's request for defendant to exit the car was "consistent with the trooper's rightful ability to have [defendant] step out of the vehicle so that [Nelson] safely could...