State v. Sarmento

• Decision Date: 27 March 2019
• Docket Number: A160875 (Control), A160876
• Citation: 439 P.3d 994,296 Or.App. 763
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Kayla Renee SARMENTO, Defendant-Appellant.
• Court: Oregon Court of Appeals

296 Or.App. 763

439 P.3d 994

STATE of Oregon, Plaintiff-Respondent,

v.Kayla Renee SARMENTO, Defendant-Appellant.

A160875 (Control), A160876

Court of Appeals of Oregon.

Argued and submitted November 21, 2017.

March 27, 2019

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jonathan N. Schildt, 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 Egan, Chief Judge, and Powers, Judge.^*

ORTEGA, P. J.

In this consolidated appeal, defendant challenges her convictions for unlawful possession of heroin, ORS 475.854, and unlawful possession of methamphetamine, ORS 475.894. In case number 14CR15300, defendant asserts that the trial court erred in denying her motion to suppress evidence obtained during a traffic stop that she contends was unlawfully extended because the "officer-safety" exception to the warrant requirement did not justify the officer’s actions.¹ We conclude that the trial court erred in denying defendant’s motion and, accordingly, reverse and remand.

We review the denial of a motion to suppress for legal error and are bound by the trial court’s explicit and implicit factual findings if evidence in the record supports them. State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). Accordingly, we state the facts consistently with the trial court’s factual findings.

Around 8:00 p.m., while patrolling an area of Medford known to have "a lot of drug and criminal activity," Officer Oller noticed two people in a parked car in an "alleyway" with a "building on one side" and an "empty lot" on the other. Defendant was in the driver’s seat, and a man was in the passenger seat. The car did not have a front license plate, a traffic violation under ORS 803.540. State v. Blueback , 291 Or. App. 779, 784, 422 P.3d 385 (2018). Oller initiated a traffic stop by pulling in front of the car so that his car faced the parked car. He got out of his car and, as he approached, saw both defendant and the passenger "hiding or concealing or obtaining *** items around their waist, around the areas [he] couldn't see within the vehicle," which Oller characterized as "furtive movements." Oller knew that weapons are commonly hidden and concealed around the waist. He ordered them to "stop moving" and keep their hands where he could see them, and they complied. He then called for a cover officer because he was concerned for his safety and "wanted another set of eyes." They both appeared nervous, and Oller saw "fresh track marks" or needle marks on defendant’s arms. Oller asked for their names but did not take any steps to process the citation for the traffic violation while waiting for the cover officer. During that time, Oller waited at the side of the car, and the "passenger kept moving towards his waist line." Defendant also dropped something "like a candy box" on the floor and shuffled something around with her feet. Oller testified that he did not believe that the candy box was a weapon. Rather, the candy box was as small as a credit card or as big as a "movie box" and could have had a number of things in it, including a weapon. Oller again told them to stop moving.

Once Officer Dennis arrived, about two and a half minutes later, Oller briefed Dennis and told him to watch the passenger while Oller approached defendant because "there might be weapons present." Oller then approached defendant and asked her, "Hey, do you mind moving your right foot?" She moved her right foot but "moved her left foot over" to where her right foot had previously been. Oller then asked, "Hey, will you move your left foot?" When defendant moved her left foot, Oller saw a syringe filled with a substance that Oller believed to be heroin. Defendant was arrested for possession of heroin and later made incriminating statements.

At the hearing on defendant’s motion to suppress the evidence obtained during the stop, Oller testified that he had about 11 years of law enforcement experience in Oregon and Arizona, including "advanced training in narcotics" and experience training other officers. He testified that he waited for Dennis to begin the traffic investigation because he "had officer safety issues" that had to be dealt with first—that is, being in a high crime area, outnumbered, alone, and witnessing the occupants make movements towards their waistlines where weapons are commonly kept. He also explained that police contacts with people in cars are some of the "more dangerous" encounters because of the number of areas in which things can be concealed. He further testified that by the time Dennis arrived, he believed there was a "strong possibility" that there were weapons in the car. On cross-examination, when asked how he addressed his safety concerns, Oller responded that he did so by asking defendant to move her feet because he "believed that she was hiding something with her foot."

Defendant argued that Oller unlawfully extended the traffic stop without reasonable suspicion of criminal activity and that the extension was not justified by the officer-safety exception to the warrant requirement. The state responded that Oller’s actions were justified by reasonable suspicion of a crime and officer-safety concerns and that the two issues are "intertwined together." The court denied the motion without making any express factual findings, and defendant entered a conditional plea of guilty.

On appeal, the parties generally renew the arguments they made below. Defendant argues that Oller’s actions were not reasonably related to the basis for the traffic stop and were unlawful because they were not justified by the officer-safety exception to the warrant requirement as articulated in State v. Bates , 304 Or. 519, 524, 747 P.2d 991 (1987). The state counters that Oller’s actions were reasonably related to the traffic investigation and were therefore lawful under State v. Jimenez , 357 Or. 417, 426, 353 P.3d 1227 (2015). Alternatively, the state argues that Oller’s actions were justified because he had reasonable suspicion that defendant possessed a controlled substance.

Defendant conceded below that the initial stop was lawful, so we focus on whether Oller unlawfully extended the stop. Because the parties disagree on what standard we should apply to answer that question, we begin by outlining the law governing traffic stops and officer safety concerns.

With probable cause, an officer may "lawfully stop a person for a noncriminal traffic violation to investigate the offense and issue a citation without a warrant." State v. O'Dell , 291 Or. App. 359, 362, 421 P.3d 417 (2018) (citing State v. Rodgers/Kirkeby , 347 Or. 610, 623-24, 227 P.3d 695 (2010) ). During a lawful stop, an officer’s authority is limited to "the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any)." Rodgers/Kirkeby , 347 Or. at 623, 227 P.3d 695. Officer conduct that is not reasonably related to the basis for the stop "must be justified on some basis other than the traffic violation." Id. (emphasis omitted).

An officer may conduct a warrantless, nonconsensual search of an individual if he or she "develops a reasonable suspicion, based upon specific and articulable facts, that [the individual] might pose an immediate threat of serious physical injury to the officer or to others then present." Bates , 304 Or. at 524, 747 P.2d 991. The officer must have a subjective belief that the defendant posed a threat and that belief must be objectively reasonable. State v. Rodriguez-Perez , 262 Or. App. 206, 213, 325 P.3d 39 (2014). To be objectively reasonable, "the officer’s safety concerns must be based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer’s safety." Id.

Short of a nonconsensual search, an officer may resolve "cognizable safety concerns" with less intrusive actions that are reasonably related to the safe investigation of a traffic violation. Jimenez , 357 Or. at 424, 426, 353 P.3d 1227 ("[I]n appropriate circumstances, an officer’s safety concerns may make the officer’s actions, including questioning about weapons, reasonably related and necessary to effectuate a traffic stop."); see also State v. Miller , 363 Or. 374, 422 P.3d 240, modified and adh'd to on recons. , 363 Or. 742, 428 P.3d 899 (2018) (further articulating Jimenez standard when an officer makes a weapons inquiry); State v. Pichardo , 360 Or. 754, 759-60, 388 P.3d 320 (2017) (applying Jimenez standard to officer’s request for consent to search); State v. Watson , 353 Or. 768, 782, 305 P.3d 94 (2013) ("[V]erification of a person’s identity and the issuance of a citation are not the only activities that may be reasonably related to the investigation."). To demonstrate that an officer’s less intrusive measures are "reasonably related to a traffic investigation and reasonably necessary to effectuate it, the state must present evidence that (1) the officer perceived a circumstance-specific danger and decided that [the action taken] was necessary to address that danger; and (2) the officer’s perception and decision were objectively reasonable." Jimenez , 357 Or. at 430, 353 P.3d 1227. In order for an officer’s perception of a threat to be reasonable, the officer must be able to articulate "reasonable, circumstance-specific concerns" for safety, but those "concerns need not arise from facts particular to the detained individual; they can arise from the totality of the circumstances that the officer faces." Id. at 429, 353 P.3d 1227.

Defendant urges us to evaluate Oller’s conduct by the standard set forth in Bates , 304 Or. at 524, 747 P.2d 991 (requiring "reasonable suspicion, based upon specific and...