State v. Sherman

• Decision Date: 12 November 2015
• Docket Number: 122786,A154427.
• Citation: 274 Or.App. 764,362 P.3d 720
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Stanley Glen SHERMAN, Defendant–Appellant.
• Court: Oregon Court of Appeals

274 Or.App. 764

362 P.3d 720

STATE of Oregon, Plaintiff–Respondent,

v.Stanley Glen SHERMAN, Defendant–Appellant.

122786

A154427.

Court of Appeals of Oregon.

Argued and Submitted Jan. 27, 2015.

Decided Nov. 12, 2015.

Ernest G. Lannett, Chief Deputy Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Pamela Johnstone Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

HADLOCK, J.

On appeal from a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, defendant assigns error to the trial court's denial of his motion to suppress. Defendant concedes that police officers stopped him lawfully to investigate possible criminal activity, but he contends that officers unlawfully extended that stop past the point at which the justification for it dissipated, thereby effecting an unlawful seizure. Defendant further contends that a police officer obtained the evidence in question through exploitation of that unlawful seizure and the trial court should, therefore, have granted his suppression motion. We agree. Accordingly, we reverse and remand.

Except as noted below, we state the facts consistently with the trial court's explicit and implicit factual findings that the record supports. State v. Culley, 198 Or.App. 366, 374, 108 P.3d 1179 (2005). At approximately 2:30 a.m., the Lincoln City Police Department received a report that a man was shining a flashlight into vehicles parked at an apartment complex. A few minutes later, the caller reported that the man was leaving the parking lot in a silver Chevrolet Cavalier. Officer Dodds was patrolling the area when he saw a silver Cavalier within one block of the apartment complex. When the driver failed to stop behind a marked stop line at an intersection, Dodds activated his overhead lights, initiating a traffic stop.

Defendant's son Levi was driving the car and defendant, who owned the car, was in the front passenger seat.¹ Dodds explained that he was investigating both "the possible car clouts [and] * * * the failure to stop at the stop sign" and described the report that he had received. Defendant told Dodds that the man in the parking lot with the flashlight "was him" and explained that he "was just going to use the bathroom and was making his way back to their vehicle * * * "² Dodds discovered that Levi's driver's license had been suspended and told Levi that he was under arrest for driving while suspended. Dodds intended to cite and release Levi, and to allow defendant to drive the car home.

Sergeant Weaver arrived at the scene shortly after the stop and began to act as a cover officer for Dodds. Weaver assisted Dodds in arresting Levi and placing him in the back of Dodds's patrol car. Weaver, who had extensive experience as a narcotics officer, saw what appeared to be scabbed injection sites on Levi's arms that were consistent with intravenous methamphetamine use.

While Dodds processed Levi's arrest paperwork in his patrol car, Weaver went to the passenger side of defendant's car and spoke with defendant, who remained in the passenger seat. Weaver, who was continuing to investigate potential car prowls, asked for defendant's name and date of birth, checked his information, and found no indication of criminal activity. Weaver described the conversation with defendant as "very low key." Weaver looked in the car through the windows for anything dangerous or related to potential car prowls, and he noticed a butane torch behind the driver's seat on the back floorboard. Weaver described the torch as "not huge"; such torches usually are "about six, seven inches" and have a metal tube where the flame comes out, linked by a valve assembly to a bottle of butane or propane. Weaver knew that people frequently use such torches in conjunction with smoking methamphetamine; he also knew that the torches may be used for other purposes.

Weaver also saw a small, black bag on the driver's side floorboard. He asked defendant for consent to search the bag. Defendant replied, "Yeah, that's not a problem." Weaver retrieved the bag from the vehicle and examined its contents. As he explained at the suppression hearing, Weaver found the bag's contents—binoculars, two-way radios, and make up—to be "weird" and "curious," but he did not view those items or anything else he saw as "anything that was like, okay, this could be theft."

A third officer, Bledsoe, arrived as additional backup while defendant and Weaver were talking. After Bledsoe arrived, Weaver asked defendant for permission to search the car, and defendant consented. Weaver asked defendant to step out of the car and continued to speak with defendant while Bledsoe searched the vehicle. Defendant told Weaver that he and Levi had just dropped off Levi's girlfriend at her parents' apartment. By then, Bledsoe had finished searching the car. He did not find any evidence of criminal activity.

At that point, Weaver testified, defendant would have been free to leave. However, Weaver did not tell defendant that he could leave. Rather, he continued to converse with defendant, asking him if Levi and his girlfriend had "some kind of a drug thing going on." Defendant indicated that both Levi and his girlfriend had a "problem" with methamphetamine. Weaver then noticed that defendant also had marks consistent with intravenous methamphetamine use on his arms. Weaver asked defendant about his arrest history, and defendant responded that he had been arrested four years earlier for possession of methamphetamine.

Weaver then asked defendant, "Is there anything on you I should be worried about?" to which defendant replied, "No." Weaver acknowledged at the suppression hearing that he had not believed that defendant possessed a weapon or posed a danger to Weaver or anybody else present. Nonetheless, Weaver asked to search defendant's person to determine whether he possessed illegal drugs. Defendant consented. However, instead of waiting for Weaver to conduct a search, defendant emptied his pockets, placing items on the ground in front of Weaver and immediately stepping backwards. In Weaver's experience, people who empty their own pockets after consenting to a search are typically trying to prevent the police from discovering something concealed on their person, so Weaver asked to search defendant himself, which defendant allowed.

Weaver patted the front coin pocket of defendant's pants and felt something "mushy" that, in his experience, was consistent with a small bag of methamphetamine.

Weaver removed the item from defendant's pocket. Defendant admitted that it probably contained methamphetamine, and Weaver arrested him.

At no point during the encounter did the officers make demands of defendant or use threats or promises to gain defendant's consent to search. Nor did the officers point their weapons at defendant or otherwise threaten him. However, although Weaver later testified that defendant could have left the scene, the officers never told defendant that their initial suspicion of possible criminal activity had abated or that he was free to leave.

The state charged defendant with unlawful possession of methamphetamine. Defendant moved to suppress the methamphetamine discovered in his pocket, as well as his subsequent statements. He argued that, by the time Weaver asked for consent to search defendant's person, any reasonable suspicion of potential car prowls had abated and Weaver did not have enough information to support reasonable suspicion of drug possession. Therefore, defendant argued, Weaver's request for consent to search constituted an illegal seizure under Article I, section 9, of the Oregon Constitution and evidence found as a result of that seizure should be suppressed.

The trial court denied defendant's motion. The court first ruled that Weaver's request for consent did not unlawfully extend the seizure, because it occurred during an "unavoidable lull" in the processing of Levi's arrest. Alternatively, the court reasoned that Weaver "had reasonable suspicion at the time he requested consent to search Defendant's person that Defendant was in possession of controlled substances." After the court issued a written order denying defendant's suppression motion, defendant entered a conditional guilty plea that reserved his right to appeal the suppression issue.

On appeal, defendant concedes that the officers acted lawfully in stopping the car and investigating possible criminal activity—car prowling—but he renews his argument that the stop was unlawfully extended past the point at which reasonable suspicion of that criminal activity had dissipated. Specifically, defendant contends that Weaver's request to search defendant's person "was made during an unlawful extension of the stop, because Weaver lacked an objectively reasonable basis to suspect that defendant possessed methamphetamine." Defendant concludes that suppression was required because Weaver discovered the evidence at issue by searching defendant during the course of an unlawful seizure.

The state responds that the officers detained defendant for a reasonable period of time to investigate the reported criminal activity, suggesting that defendant's seizure ended when Weaver and Bledsoe stopped their investigation into possible car prowls.

In the state's view, the officers then engaged defendant in "mere conversation," during which defendant voluntarily consented to the subsequent searches. Further, the state argues that, even if the initial seizure was unlawfully extended, the officers' discovery of the evidence was sufficiently attenuated from that illegality because defendant's consent to search was voluntary.

We begin our analysis by considering (1) whether defendant was seized within the meaning of Article I, section...