State v. Stanley

• Decision Date: 13 March 1996
• Citation: 139 Or.App. 526,912 P.2d 948
• Parties: STATE of Oregon, Respondent, v. Scott Eric STANLEY, Appellant. (10-93-01272; CA A81472).
• Court: Oregon Court of Appeals

Page 948

912 P.2d 948

139 Or.App. 526

STATE of Oregon, Respondent, v. Scott Eric STANLEY, Appellant.

(10-93-01272; CA A81472).

Court of Appeals of Oregon.

Argued and submitted Jan. 31, 1995.

Decided March 13, 1996.

Appeal from Circuit Court, Lane County. Pierre L. Van Rysselberghe, Judge.

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

Rives Kistler, Assistant Attorney General, argued the cause for respondent. On the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General and Robert M. Atkinson, Assistant Attorney General.

Before DEITS, P.J. and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Defendant was charged with unlawful possession of a controlled substance. ORS 475.992(4)(b). He appeals the trial court's denial of his motion to suppress evidence of methamphetamine. We reverse.

In January 1993, Springfield police officer Kemper responded to a dispatch call regarding suspicious activities at the Glenwood Market. One of the store clerks had reported to the police that she was concerned about two men, whom she described as "very high on something," who had been on the premises for about an hour. One of the men had entered the store and asked her where the police were located and how often they came by the store. The clerk believed that the men were planning to rob the store and expressed concern for her safety.

When Kemper arrived, she saw two men standing at a pay phone near the store entrance. One of the men, McCoy, was using the phone, and the other, defendant, was standing nearby holding a briefcase. Kemper noticed that defendant was wearing a pager and was holding an open spiral notebook, on which was written a long list of first names and corresponding phone numbers. Based on her training and experience, she testified that these activities "were consistent with persons buying or selling controlled substances." Kemper did not interrupt McCoy's phone conversation, but asked defendant what he was doing at the store. She characterized his behavior as "very extreme." Kemper testified that defendant's eyes were extremely dilated and that they were "blinking and bouncing." She said that he was agitated, that he could not stand still, and that his speech was so rapid that she could not understand what he was saying. She described defendant as the "most extreme case of stimulant intoxication that I have ever encountered." McCoy displayed similar symptoms. Based on her training and experience, Kemper believed that both men were under the influence of a stimulant, such as methamphetamine, and that it was necessary to take them into custody to "detox" them.

Shortly after Kemper arrived at the market, another officer, Maloney, arrived. At that time, Kemper stepped aside to talk with McCoy. When Kemper observed a large "roundish square" object in McCoy's left front jacket pocket, she became concerned that he was carrying a gun or a knife. She asked him if she could pat him down for weapons, and he nodded his assent. As she patted the object in the pocket, McCoy grabbed her hand in what she characterized as an "aggressive, very negative move." She then arrested him for harassment and searched him incident to that arrest. During that search, she did not find a weapon but, instead, found a marijuana pipe and an unused syringe.

While Kemper was talking with McCoy, Maloney approached defendant and immediately patted him down for weapons. Maloney testified that he was concerned for his safety, because he was responding to a possible robbery call and because, in his experience with robberies "the person either simulates or is armed." During the pat-down, Maloney felt a metal container that did not feel like a weapon. He did not seize the container, but asked defendant, "Would you be willing to show me [the container]?" Defendant opened the container and revealed three prescription pills. Maloney did not seize the container or the pills and allowed defendant to place them back in his shirt pocket.

After Kemper placed McCoy in the patrol car, she joined Maloney and defendant. Maloney asked defendant if he would show Kemper the pills in the container. Defendant agreed to do so and opened his jacket to get the container. As defendant opened his jacket, both officers testified that they recognized a strong odor of methamphetamine. Kemper said that because the odor was strong enough to burn her nose, she concluded that defendant had not just been in contact with methamphetamine, but was presently in possession of the substance. She testified that it had been her experience "100 percent of the time" that when she encountered an odor that strong, the person was actually in possession of methamphetamine. Kemper then placed defendant under arrest for possession of a controlled substance and searched him incident to that arrest. She found marijuana and methamphetamine.

Defendant moved to suppress evidence of the smell of the methamphetamine, as well as evidence of the methamphetamine itself. The trial court denied the motion, and defendant assigns error to that ruling. He argues that his stop and initial frisk were unlawful in violation of Article I, section 9, of the Oregon Constitution ¹ and that the evidence of methamphetamine obtained after his arrest must be suppressed as "the fruit of the illegal search."

Defendant argues that the frisk of defendant was unlawful. ² The state first argues that because both officers had concluded that it would be necessary to take defendant into civil custody for detoxification under ORS 426.460, ³ it was permissible for them to conduct a cursory open hand pat-down for weapons for safety purposes. The state may be correct that such a limited pat-down is justified whenever a person is taken into custody. See State v. Hoskinson, 320 Or. 83, 87, 879 P.2d 180 (1994); State v. Owens, 302 Or. 196, 200, 729 P.2d 524 (1986). However, there is no evidence that, at the time Maloney conducted the pat-down, he had decided to take defendant into custody. ⁴ Consequently, Maloney's frisk of defendant may not be justified on the ground that defendant was to be taken into custody for detoxification.

The state next argues that the frisk was justified as necessary for officer safety. ORS 131.625(1) authorizes a police officer, during the course of a lawful stop, to frisk a person for weapons if "the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present." We have held, however, that in order to justify the frisk, the officer must articulate a particularized suspicion that the stopped person poses an "immediate threat." State v. Lumpkin, 133 Or.App. 265, 269, 891 P.2d 660, rev. den. 321 Or. 138, 894 P.2d 469 (1995); State v. Matthys, 106 Or.App. 276, 282, 808 P.2d 94, rev. den. 311 Or. 433, 812 P.2d 828 (1991).

Here, the state asserts that the following facts support Maloney's suspicion that defendant posed an immediate threat: (1) Maloney was confronted with a subject who appeared to be very intoxicated and hyper; (2) Maloney was responding to what he believed was a possible robbery attempt; (3) it was Maloney's experience that people who commit robberies are often armed; and (4) Maloney knew that McCoy and defendant had questioned the store clerk about the whereabouts of the police.

In assessing whether there are sufficiently particularized facts to support an officer's suspicion that the stopped person posed an immediate threat, we may consider only the information that the officer had at the time the frisk took place. ORS 131.605(4). The evidence here is that the first thing Maloney did after arriving on the scene was to walk over and frisk defendant. There is no evidence that Maloney observed defendant to be intoxicated or hyperactive, or that Kemper told Maloney of her observations before the frisk occurred. Accordingly, this case is distinguishable from other cases, such as State v. Smay, 118 Or.App. 31, 845 P.2d 1294 (1993), on which the state relies, where the frisk was justified by the officer's observations of a suspect's nervous behavior.

The only remaining facts that support a suspicion that defendant posed an immediate threat are Maloney's general concerns for safety in responding to a robbery call and his knowledge that one of the men had inquired about the whereabouts of the police. We are not unmindful of the legitimacy of an officer's generalized concerns for safety in such circumstances, but that alone is not enough to justify a frisk. ORS 131.625(1) requires that there be particularized facts giving rise to the suspicion that a suspect poses an immediate threat. Such facts are lacking here. See Matthys, 106 Or.App. at 282, 808 P.2d 94. Thus, we conclude that the initial frisk of defendant was unlawful.

Nonetheless, the state argues that the evidence of the methamphetamine should not be suppressed, because the odor of the methamphetamine was discovered during a valid consent search. Defendant responds that the evidence of the odor of methamphetamine and the methamphetamine, itself, must be suppressed as the tainted fruit of the illegal frisk. In particular, defendant argues that the odor of methamphetamine, which was discovered during the second consent search, must be suppressed because Maloney obtained his consent to that search by exploitation of the illegal frisk. ⁵ We agree.

Unlawful police conduct ⁶ may affect the validity of consent in one of two ways. It may render a subsequent consent involuntary when the illegality has an "effect on the state of mind of the person giving consent, affecting whether the consent is a voluntary act of that person's free will." State v. Rodriguez, 317 Or. 27, 38, 854 P.2d 399 (1993). Official misconduct may also invalidate an otherwise voluntary consent if "the police have exploited their prior unlawful conduct to obtain that consent." Id. at 39-40, ...