State v. Rodgers

• Decision Date: 11 February 2010
• Docket Number: (CC CM0420629,CA A128857,SC S056239 (Control)),(CC CR030112,SC S056237).,CA A128263
• Citation: 227 P.3d 695,347 Or. 610
• Parties: STATE of Oregon, Petitioner on Review, v. Michael K. RODGERS, Respondent on Review. State of Oregon, Petitioner on Review, v. Anthony Douglas Kirkeby, Respondent on Review.
• Court: Oregon Supreme Court

227 P.3d 695

347 Or. 610

STATE of Oregon, Petitioner on Review, v. Michael K. RODGERS, Respondent on Review.

State of Oregon, Petitioner on Review, v. Anthony Douglas Kirkeby, Respondent on Review.

(CC CM0420629; CA A128857; SC S056239 (Control)), (CC CR030112; CA A128263; SC S056237).

Supreme Court of Oregon, En Banc.

Argued and Submitted February 9, 2009.

Decided February 11, 2010.

COPYRIGHT MATERIAL OMITTED

Anna Marie Joyce, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the petitions for review and briefs on the merits were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General. With her on the reply brief were John R. Kroger, Attorney General, and Rolf C. Moan, Acting Solicitor General.

Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondents on review Michael K. Rodgers and Anthony Douglas Kirkeby.

DE MUNIZ, C.J.

In these two criminal cases, consolidated for purposes of opinion, each defendant was charged with drug-related crimes based on evidence obtained during separate traffic stops. In each case, the Court of Appeals concluded that the officer's conduct unreasonably extended the duration of the traffic stop, in violation of Article I, section 9.¹ State v. Rodgers, 219 Or.App. 366, 373, 182 P.3d 209 (2008); State v. Kirkeby, 220 Or.App. 177, 186, 185 P.3d 510 (2008). We allowed the state's petitions for review and now conclude that each defendant was unlawfully seized in violation of Article I, section 9, because in each case the police conduct was not justified by reasonable suspicion of criminal activity; was unrelated to the traffic violation investigation, identification, or issuance of a citation; and significantly restricted each defendant's freedom of movement. Because there were no intervening circumstances or other circumstances mitigating the effect of the illegal seizures of each defendant, we conclude that each defendant's consent, even if voluntary, was the product of police conduct that violated Article I, section 9, of the Oregon Constitution. Because the consent to search in each case was a product of the unlawful seizure, the evidence obtained during the search, in both cases, must be suppressed. We therefore affirm the decisions of the Court of Appeals.

I. FACTS, PROCEDURAL BACKGROUND, AND PARTIES' ARGUMENTS

For purposes of the issue presented here, the relevant facts of each case are undisputed.

A. State v. Rodgers

Defendant Rodgers was stopped by Corvallis Police Officer Van Arsdall for driving a vehicle with a burned-out license plate light in violation of ORS 816.330. Defendant provided Van Arsdall with a valid driver license and vehicle registration, but was unable to provide proof of insurance. Defendant explained that the vehicle was borrowed and that he was driving it with the owner's permission. While they were talking, Van Arsdall noticed a large container of blue liquid on the front passenger floorboard and a white sack with a smaller, square, metallic container inside it on the back seat. Van Arsdall also noticed that defendant had sores on his face, which Van Arsdall believed to be consistent with methamphetamine use. Van Arsdall returned to his patrol car and radioed a request for a records check.

In the meantime, a second officer, Kantola, arrived. Van Arsdall explained his observations to Kantola and told him that he believed that defendant had items in his vehicle that likely were used to produce methamphetamine. However, Van Arsdall testified at the suppression hearing that, at that point, he did not have enough information to arrest defendant—defendant's records check had come back clear, and Van Arsdall therefore had a sufficient basis only to issue defendant a traffic citation. Notwithstanding the clear records check, Van Arsdall approached the driver's side of the vehicle, while Kantola approached the passenger side. Van Arsdall asked defendant about the blue liquid, and defendant explained that it was windshield washer fluid. Van Arsdall then expressed concern about the metallic container in the white sack. Defendant removed the container from the sack and explained that it contained denatured alcohol, which he used for his job at a company that manufactured fertilizer. Van Arsdall then asked defendant for consent to search the vehicle. Defendant agreed, and, during the search, the officers found acid, lithium batteries, foil, and cold medicine containing pseudoephedrine—all precursor materials for manufacturing methamphetamine.

Defendant was charged with unlawful manufacture of a controlled substance. Before trial, defendant moved to suppress the evidence found in the vehicle, on the ground that Van Arsdall unconstitutionally had extended the scope and duration of the traffic stop by questioning him without reasonable suspicion that a crime had been or was being committed. The trial court concluded that Van Arsdall did not have reasonable suspicion to request to search the vehicle. However, the trial court found that defendant's consent to search was voluntary and that Van Arsdall's request for consent did not extend the duration of the stop. The trial court therefore denied defendant's motion to suppress, and defendant was convicted.

Defendant appealed, and the Court of Appeals reversed and remanded. That court concluded that Van Arsdall had extended the traffic stop beyond a reasonable time when he asked defendant about the containers instead of issuing a traffic citation. The Court of Appeals noted that Van Arsdall's questions had been unrelated to the traffic infraction. Because Van Arsdall had lacked reasonable suspicion to extend the stop, the Court of Appeals concluded that defendant's consent was the product of an unlawful seizure under Article I, section 9, and that the evidence discovered in the search of the vehicle therefore should have been suppressed. Rodgers, 219 Or.App. at 374, 182 P.3d 209.

B. State v. Kirkeby

A deputy sheriff who knew defendant by sight and knew that his driver license had been suspended saw defendant driving with a passenger in downtown Willamina. The deputy contacted his dispatcher, who confirmed that defendant had a suspended license but otherwise had no outstanding arrest warrants. Based on that information, the deputy activated his overhead lights—which remained on throughout the duration of the stop—and stopped defendant. Both defendant and the deputy got out of their respective vehicles and walked towards one another. The passenger remained in defendant's vehicle. The deputy was concerned for his safety, because defendant had left his vehicle. When the deputy told defendant the reason for the stop, defendant seemed surprised and handed the deputy an Oregon driver license. Defendant was cooperative and businesslike, and he did not act in a threatening or aggressive manner. Also, throughout the deputy's extensive history of prior contacts with defendant, defendant never had acted in a threatening or violent manner and never had displayed a weapon. At that point, the deputy had defendant's name, date of birth, and driver license number, which was all the information necessary to complete a traffic citation. However, the deputy testified that he probably did not have all the information that he needed because he did not have the vehicle registration and proof of insurance.

The deputy told defendant that the license was "no good" and asked him if he had any weapons on his person or in the vehicle. Defendant stated that he did not have any weapons. The deputy then asked for consent to conduct a patdown, and defendant agreed. At some point, two additional officers arrived and observed the passenger while the deputy talked with defendant. After the patdown of defendant, the deputy felt fairly confident that defendant did not have any firearms on his person, but nonetheless asked for consent to examine each of the items that he had felt in defendant's pockets, because he did not know what they were and wanted to investigate further. Defendant consented. The deputy testified that defendant was not free to leave at that time. The deputy, with defendant's further consent, opened a small metal cylindrical container that he had found during the patdown and discovered two ziplock bags containing a residual amount of a clear crystalline substance that appeared to be methamphetamine. By that time, four to five minutes had elapsed since the beginning of the stop.

Defendant was charged with possession of a controlled substance. Before trial, defendant moved to suppress the evidence obtained during the patdown search. He acknowledged that questions concerning the presence of weapons may be authorized under ORS 810.410(3)(d), set out post, 647 Or. at 619 n. 3, 227 P.3d at 701 n. 3. However, defendant argued that, unless the officer has "a reasonable suspicion of an immediate threat of serious injury," such questioning— including asking for permission to search for weapons—constituted an unlawful seizure in violation of Article I, section 9, and the Fourth Amendment to the United States Constitution. The trial court granted defendant's motion. The court concluded that the deputy's request to conduct a patdown had not violated ORS 810.410; however, the trial court further concluded that that request had violated Article I, section 9, because the patdown had gone beyond "ordinary social intercourse" and therefore had amounted to a seizure of defendant without reasonable suspicion that defendant either posed a danger to the deputy or others, or had committed a crime.

The state appealed, and the Court of Appeals affirmed, determining that the outcome was controlled by its decision in Rodgers. The Court of Appeals noted that, at the time that the deputy asked for consent to conduct a patdown, the deputy was not waiting for further information or...