State v. Sherriff
| Jurisdiction | Oregon |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Jason Leigh SHERRIFF, Defendant-Appellant. |
| Citation | 303 Or.App. 638,465 P.3d 288 |
| Docket Number | A165345 |
| Court | Oregon Court of Appeals |
| Decision Date | 22 April 2020 |
Rond Chananudech, 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.
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
Defendant appeals a judgment of conviction for one count of delivery of methamphetamine—commercial drug offense, ORS 475.890(2) ; one count of possession of methamphetamine—commercial drug offense, ORS 475.894 ; and one count of felon in possession of a firearm, ORS 166.270(1). Officers found the drugs and gun in defendant's backpack after they searched the car in which defendant and his friend, Mitchell, had been riding at the time of defendant's arrest on an outstanding warrant. Defendant assigns error to (1) the trial court's denial of his motion to suppress evidence of the drugs and gun; (2) the trial court's pretrial ruling that, if defendant introduced certain statements by Mitchell implicating herself in the drug crimes, then, under OEC 403 and the so-called "rule of completeness," the state would be permitted to introduce Mitchell's statements implicating both defendant and herself; and (3) the trial court's instruction to the jury that it could return a guilty verdict upon the agreement of at least 10 jurors. We conclude that the trial court erred in denying the motion to suppress and therefore reverse and remand. That conclusion obviates the need for us to address defendant's other assignments of error because those issues may be litigated differently on remand.
Our review of the trial court's denial of a defendant's motion to suppress is, in general, "for legal error, accepting the facts as found by the trial court, so long as there is constitutionally sufficient evidence in the record to support the findings." State v. Jones , 286 Or. App. 562, 564, 401 P.3d 271 (2017).
This case adds a wrinkle to our standard of our review. The manner in which the trial court resolved the motion to suppress meant that the court did not need to make, and did not in fact make, factual findings pertinent to certain issues raised by the motion to suppress and the parties' arguments on appeal. We therefore cannot presume that the court made a particular factual finding, to the extent that particular finding was not one that was necessary to the court's decision. Pereida-Alba v. Coursey , 356 Or. 654, 670-72, 342 P.3d 70 (2015).
In those instances—where the court did not make certain findings and we must determine whether a remand is in order for the court to make those findings—we view the record in the light most favorable to the state and articulate the facts in accordance with that favorable view. We take that approach to evaluate whether applicable constitutional standards would require the granting of defendant's motion to suppress even if all yet-unresolved conflicts in the evidence were to be resolved in the state's favor. If so, then defendant would be entitled to have the motion to suppress granted, notwithstanding the trial court's failure to reach all potentially dispositive factual issues. See id . ( that a remand to address unresolved material factual disputes is not necessary if the party with the burden of production did not meet that burden). If not, then any error by the trial court would require a remand to address the factual issues that necessarily must be resolved to dispose of the motion to suppress. Id .
Keeping those standards in mind, the historical and procedural facts relevant to defendant's challenge to the denial of his motion to suppress are as follows.
Deputy Maller was on the job with his K-9 partner, Taz. They received a call from then-Deputy (now Corporal) Davis that defendant had gotten into a 1994 Honda Accord with Washington plates and driven away. Maller was familiar with defendant and knew he had a warrant out for his arrest on a misdemeanor. So Maller tracked down the car, radioed the Hillsboro Police Department for assistance, and pulled defendant over into a church parking lot after Officer Duggan of the Hillsboro Police Department fell in behind him.
At the time of the stop, defendant was in the driver's seat and Mitchell was in the passenger seat. Maller took the driver's side of the car, while Duggan took the passenger side. The windshield had a horizontal crack through the driver's line of vision that extended the length of the windshield, and Maller initially told defendant that he was stopping him because of the crack and did not mention the warrant. After defendant provided Maller with his name (defendant did not have a license), insurance information, and the registration for the car, Maller went to his patrol car and confirmed what he already knew: Defendant had an active warrant. Maller then returned to the Honda and told defendant that there was a warrant for his arrest.
Defendant uttered a sequence of profanities and requested permission to finish his cigarette. Maller said, "Absolutely." While defendant finished his cigarette, he and Mitchell talked. When he was done with the cigarette, he asked Maller if he could kiss Mitchell goodbye. Maller again said, "Absolutely." Defendant kissed Mitchell and stepped out of the car. Maller handcuffed him, patted him down, and led him to his patrol car.
While Maller was leading defendant away, Mitchell jumped out of the passenger side, ran around the car, and got into the driver's seat. Maller placed defendant in his patrol car and went back to the driver's side of the Honda. By that time, Mitchell had taken off the emergency brake so that she could leave, and she told Maller that it was her car and she would take it. Maller asked if she would consent to having him walk his narcotics detection canine around the car. Mitchell did not consent, telling Maller, "No, I have to leave, I have to leave, I have to leave."
Maller did not want Mitchell to drive away, so he directed Duggan to start writing up a citation based on the crack in the windshield. While Duggan was doing that, Maller got Taz and began circling the Honda. Taz alerted at the driver's door seam. Maller asked Mitchell if there were narcotics in the car, but Mitchell did not respond. Maller directed Mitchell to step out of the car. She did not comply at first, but eventually did after he opened the door.
After Mitchell got out of the car, Maller pulled her purse from the car, searched it, and found methamphetamine and a scale, for which he arrested her. After Mirandizing her, Maller put her in Duggan's patrol car and then Mirandized defendant. Defendant confirmed that he understood his rights, and Maller asked him about the methamphetamine in the car. Defendant replied,
By that point, Davis had shown up. Together, Davis and Maller searched the Honda. In addition to the drugs and scale, they found roughly $1,133 in Mitchell's purse. Davis searched a grey backpack in the backseat and found about 3.5 ounces of methamphetamine and a 9mm handgun and ammunition. He then went to ask defendant about it. Defendant told Davis that he "didn't know about any of the contents inside the vehicle, to include the gun and the methamphetamine, that he [had] no knowledge of any of it."
Mitchell supplied a different perspective. She stated that she was dealing methamphetamine for defendant and that some of the profits were hers. The rest of the profits, however, belonged to defendant, as did the backpack and its contents. Mitchell explained that defendant had picked up a half pound of methamphetamine the day before, and that the two of them had divided it among baggies, making it likely that both her fingerprints and his fingerprints would be all over the baggies. Mitchell related that she did not know about the gun or any other contents of the backpack except for the methamphetamine.
Maller and Duggan transported Mitchell and defendant to jail.
Defendant was charged with one count of delivery of methamphetamine—commercial drug offense, ORS 475.890(2) ; one count of possession of methamphetamine—commercial drug offense, ORS 475.894 ; and one count of felon in possession of a firearm, ORS 166.270(1). Before trial, he moved to suppress the evidence obtained during the search of the car. He argued that the state obtained that evidence in violation of his rights under Article I, section 9, of the Oregon Constitution. In particular, he contended that he had a constitutionally protected possessory interest in the car and its contents that police unlawfully interfered with when they, in defendant's view, unlawfully extended the stop of the car by writing Mitchell a citation for the cracked windshield. Defendant pointed out that, under our case law, the cracked windshield was not a basis for citing Mitchell. In response, the state argued that the court need not address whether the extended detention of Mitchell and the car was permissible because, in its view, defendant abandoned any interest that he had in the car and its contents when he disclaimed any connection to the contents of the car. For that proposition, the state relied on State v. Standish , 197 Or. App. 96, 104 P.3d 624, rev. dismissed as improvidently allowed , 339 Or. 450, 124 P.3d 609 (2005).
The trial court agreed with the state. It concluded that, under Standish , defendant abandoned his constitutionally protected possessory interest in the car and its contents when he disclaimed his connection to the contents of the car. That, in the court's view, was dispositive...
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