State v. Rhyne

• Jurisdiction: Oregon
• Citation: State v. Rhyne, 290 Or App 827, 417 P.3d 422 (Or. App. 2018)
• Docket Number: A158117
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jared Lee RHYNE, Defendant-Appellant.
• Court: Oregon Court of Appeals
• Decision Date: 21 March 2018

290 Or.App. 827

417 P.3d 422

STATE of Oregon, Plaintiff-Respondent,

v.Jared Lee RHYNE, Defendant-Appellant.

A158117

Court of Appeals of Oregon.

Argued and submitted April 13, 2016.

March 21, 2018

Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah Laidlaw, Deputy Public Defender, Office of Public Defense Services.

Inge D. Wells, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General.

Before DeVore, Presiding Judge, and Lagesen, Judge, and Powers, Judge.^*

DeVORE, P.J.

Defendant appeals from a judgment of conviction for delivery of methamphetamine, ORS 475.890(2). The trial court had denied his motion to suppress evidence obtained from defendant at the scene of a drug purchase arranged by a police informant. Defendant assigns error to the denial of the motion, arguing that an officer unlawfully extended a seizure of his person without reasonable suspicion as to him. He argues that an unlawful extension, together with an unlawful seizure from him of a knife, rendered inadmissible his subsequent disclosure of methamphetamine in his pocket. We conclude that detectives had reasonable suspicion that defendant was involved in a drug sale and that an unlawful seizure of his knife did not invalidate his disclosure of his possession of methamphetamine. We affirm.

When reviewing a denial of a motion to suppress, we are bound by the trial court's findings of fact that are supported by evidence in the record. State v. Stevens , 311 Or. 119, 126, 806 P.2d 92 (1991). If the trial court did not make findings on all facts and if there is evidence from which those facts could be decided more than one way, we will presume that the trial court found facts in a way consistent with its ultimate conclusion. Id . at 127, 806 P.2d 92 (citing Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968) ).

On February 5, 2013, detective Scriven assisted detective Hansen in a "controlled buy-bust" that was arranged with the help of a confidential informant. Their target was Collier, from whom the informant had planned to buy 1.7 to 1.8 grams of methamphetamine. The detectives expected that someone, in addition to Collier, might be present because Collier said he would get a ride from someone to the site of the sale. Shortly before the sale, the meeting site changed a couple of times. The parties eventually settled on a Bi-Mart parking lot. There, the detectives spotted a car with a woman in the driver's seat and defendant in the front passenger seat. They saw Collier emerge from the back seat of the car and pace around some distance from the car, while making cell phone calls to the informant. Hansen called Burge, a nearby detective, to intercept Collier. Scriven and Hansen approached to talk to the driver and defendant in the car.

Based on his experience and training, Scriven believed it was common for multiple people to be present at drug transactions. He was not surprised that others accompanied Collier, because he knew that other persons either provide transportation or are the dealer from whom the drug seller gets the drugs. The person delivering the drugs may not possess the drugs. That is, the "main guy doesn't want to just give up the drugs until he has the money so he'll ride with [a 'middle-man'] so he doesn't get ripped off."

Hansen absolutely "expected" that defendant was involved in the drug transaction because he was present in the car. Hansen suspected that defendant might be involved, as he explained later:

"It's also common for individuals to be a middle man, what we refer to as a middle man, so a drug dealer won't let his drugs, you know, go out of his sight so sometimes a drug dealer will go with the person who is a middle man, and then also people weigh their drugs in cars and use their drugs in cars, things like that. That's why we were interested in the vehicle."

Hansen allowed that he was not "completely sure at the time," but he suspected that defendant's presence meant that Collier was a "middle-man." Explaining that the volume of methamphetamine had something to do with it, Hansen later testified:

"A. Well, obviously, drugs are expensive and we were buying 1.8 grams, so that's a good amount of money, so what the drug dealer, depending on their trust basis, the drug dealer will sometimes let their drugs walk but generally—

"Q. When you say 'walk,' what do you mean?

"A. Like they'll give them to somebody to take it to whoever else and then they expect that person to bring the money back.

"Q. Okay.

"A. So they can get ripped off easily because the drugs go away and then the person doesn't necessarily have to bring their money back, so that's a middle man. So the middle man person isn't necessarily holding on to the quantity of drugs that are being ordered, so they have to go to somebody that is holding that amount, which the person that's buying the drugs doesn't have that connection and so that middle man person, quote unquote, is the connection.

"Q. So under that theory, and we're not saying it necessarily even happened, under that theory you're saying Mr. Collier would be the middle man?

"A. Correct.

"Q. Collier makes the arrangement but Mr. Collier isn't someone who is trustworthy so another individual might accompany Mr. Collier to keep an eye on things?

"A. Correct.

"* * * * *

"Q. And you said you weren't totally sure but is that what you suspected in this case was you suspected the driver and the passenger?

"A. I suspected that they were absolutely involved because they were waiting in the parking lot. They changed their location that many times. It's pretty common with a drug dealer if he gets somebody to drive and they keep changing *** locations like that."

As Scriven approached the driver, Hansen approached defendant on the passenger side of the car. Hansen asked defendant to roll down his window. As the window started down, Hansen displayed his badge. Defendant rolled the window back up and moved his hands toward his waist. Concerned that defendant might have a weapon, Hansen opened the door and ordered defendant to get out of the car and show his hands—to show them free of weapons. At the hearing, Hansen explained that it was uncommon for people, when contacted by the police, to roll their window up and move their hands out of view. He said that people commonly carry weapons around their waist. Hansen did not want the driver or defendant to reach for weapons or destroy evidence. Hansen did a patdown of defendant's waist area and found no weapons.

Hansen asked Klopenstein, another officer, to stay with defendant while Hansen retrieved his cell phone from his car. In Hansen's opinion, defendant was not free to leave. Looking back, Hansen saw defendant reach under his sweatshirt to his shirt pocket. At the hearing, Hansen described the behavior as "indexing." He explained that a person under stress, especially in situations involving drugs, will touch the pocket containing drugs or a weapon. Hansen returned to defendant and did another patdown, feeling a small bulge in defendant's shirt pocket. Defendant said the bulge was just coins in a coin purse. Hansen asked the driver and defendant for consent to search the car, but they refused consent.

Hansen stepped away again to speak with Collier, the original target of the investigation. Collier gave Hansen consent to search him, and Hansen found methamphetamine on Collier.

While Hansen was with Collier, Klopenstein saw a clip for a knife on defendant and took what he discovered was a knife.

Having found methamphetamine on Collier, Hansen returned to defendant and asked him if he would remove the items from his pocket. Defendant said that he did not have any drugs on him. Hansen told defendant and the driver that he had two options—either they consent to a search of the vehicle or he would call a K-9 unit. Hansen told them that, if the dog alerted to the vehicle, he would impound the vehicle and get a search warrant. As Hansen was calling the K-9 officer, defendant interrupted him and said that he would remove the items from his pocket. Defendant removed his items, including "a good amount of cash," but not the item in his shirt pocket. Defendant claimed, at first, that he had removed the coins, but, when Hansen did not believe defendant, defendant sighed and reached for his shirt pocket, admitting the item was drugs. Fearing that defendant might try to throw away evidence, Hansen asked defendant to let Hansen remove the drugs, and defendant consented. Hansen found just under half an ounce of methamphetamine. Hansen advised defendant of his Miranda rights, and defendant said that the methamphetamine found in Collier's possession had come from defendant's supply.

Before the trial court, defendant urged that all evidence obtained from him had been obtained in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution and should, therefore, be suppressed. The trial court addressed the motion in the sequence that the facts presented. The trial court determined that defendant was stopped or seized when Hansen ordered him out of the car and conducted a patdown of his waist, but the court concluded that the seizure was justified by officer safety concerns because defendant rolled up his window and made furtive motions toward his waist. The trial court determined that the detectives had reasonable suspicion thereafter to extend the stop to question defendant based on their suspicion that defendant was involved in the intended drug purchase. The court determined that suspicion was reasonable due to defendant's presence in the car, the changes of location, and the detectives' experience that drug dealers commonly employ a middle-man, like Collier, to avoid loss of drugs and...