State v. Stewart

• Decision Date: 08 April 2015
• Docket Number: A152660.,120230832
• Citation: 270 Or.App. 333,347 P.3d 1060
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Robert Dwight STEWART, Defendant–Appellant.
• Court: Oregon Court of Appeals

270 Or.App. 333

347 P.3d 1060

STATE of Oregon, Plaintiff–Respondent

v.Robert Dwight STEWART, Defendant–Appellant.

120230832

A152660.

Court of Appeals of Oregon.

Submitted Nov. 26, 2014.

Decided April 8, 2015.

Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and GARRETT, Judge, and EDMONDS, Senior Judge.

Opinion

GARRETT, J.

Defendant appeals his judgment of conviction for one count of compelling prostitution, ORS 167.017, and four counts of promoting prostitution, ORS 167.012. Defendant assigns error to the trial court's denial of his motion to suppress evidence discovered in defendant's vehicle, arguing that the vehicle was unlawfully seized without a warrant. Because we conclude that the admission of the challenged evidence, even if erroneous, was harmless, we affirm.

Portland police investigated defendant on prostitution-related charges over the course of several weeks. Police obtained evidence against defendant on several different occasions. The details of what evidence was obtained at what times are material to our analysis and are, therefore, summarized below.

Over the course of two evenings in January and February 2012, Officer Ruppel observed a woman, Moss, walking along a “high-vice” stretch of 82nd Avenue and exhibiting behavior consistent with prostitution. On the second evening, Ruppel saw Moss borrow a cell phone from an individual in a parking lot and make a call. Shortly afterward, defendant arrived in a white Chevrolet, Moss got in the car, and they left. Another officer stopped defendant for a traffic violation, and Ruppel soon arrived at the location of the stop. Ruppel, who had past experience with Moss, advised her of her Miranda rights and proceeded to question her about her suspected prostitution activities. Moss denied having any “dates” and said that defendant was her boyfriend, not her pimp, although her body language caused Ruppel to believe that defendant was, in fact, her pimp.

Ruppel next spoke to defendant, who denied that he was Moss's boyfriend, denied having a sexual relationship with Moss, and denied knowing that she was a prostitute. Defendant allowed Ruppel to look at the text message history on defendant's cell phone. Ruppel observed “tons of text conversations” that were associated only with other phone numbers, not names. Some of the messages were suggestive, to Ruppel, of prostitution activity. For example, one message said, “Are you going to post for me or do I need to post?”

Another read, “I didn't make any $ $ $,” and another referred to defendant as “daddy.” According to Ruppel's trial testimony, prostitutes and pimps commonly speak of “posting” advertisements online. He also testified that, in his experience, more than 95 percent of prostitutes refer to their pimps as “daddy.” As Ruppel expressed interest in some of the messages, defendant began pressing buttons on the phone. Ruppel, concerned that defendant was attempting to destroy evidence, seized the phone so that he could apply for a search warrant. He then released defendant and Moss.

Portland police continued to investigate defendant's suspected prostitution activities over the next several weeks. They interviewed Moss and another woman, Honeycutt. Both women told police that defendant was their pimp and that defendant drove them to “dates” in his white Chevrolet.

About two weeks after Ruppel stopped defendant, another Portland police officer, Edwards, stopped defendant for another traffic violation. Defendant was driving the white Chevrolet. A woman, Casanova, was in the passenger seat. During a check of defendant's and Casanova's identification, Edwards learned that Ruppel had an open investigation into defendant on suspicion of his involvement in prostitution-related activities. After receiving defendant's consent to search the vehicle, Edwards observed an unopened box of condoms, a number of hotel room keys, and around 25 to 30 prepaid Visa gift cards (gift cards). Edwards issued a traffic citation and released defendant and Casanova.

Two weeks after the Edwards stop, police stopped defendant for another traffic violation. By then, an arrest warrant had been issued for defendant on the charge of promoting prostitution. The officer arrested defendant on the outstanding warrant, but, for reasons that are unclear from the record, did not search or seize defendant's Chevrolet and left it parked on the side of the street. One or two days later, Ruppel noticed the traffic stop report in a police database, ascertained the Chevrolet's location, and drove out to the public street where it was still parked. Ruppel was aware at that time that Edwards had observed condoms, hotel room keys, and gift cards in the Chevrolet during the stop two weeks earlier. Through the windows of the car, Ruppel observed a hotel room key and some women's clothing. Ruppel had the car towed to a police impound lot.

Several days later, on March 2, 2012, Detective Cui applied for a warrant to search the Chevrolet. The warrant was served on defendant on March 6. Cui also obtained a warrant to search the cell phone that Ruppel had seized from defendant during the first stop. In the Chevrolet, Cui found the following: (1) 17 prepaid gift cards; (2) Honeycutt's cell phone; (3) Honeycutt's digital camera; (4) Honeycutt's shoes and clothing; (5) motel receipts in defendant's and Casanova's names; (6) other cell phones; (7) hotel room keys; (8) a handwritten note describing escort service “packages” with prices and brief descriptions of sexual acts, and part of a call “script” expressing what prostitutes should say in their escort videos and calls; (9) a handwritten note describing how to promote an escort business; (10) a condom; (11) a “Green Dot” prepaid gift card; (12) two pieces of paper, one on Portland hotel stationery with a phone number and handwritten notations reading “3:30 incall half hr,” and the other with several phone numbers, Moss's first name, and the notation “$385; and (13) other documents.”

Defendant was charged with one count of compelling prostitution and four counts of promoting prostitution. Before trial, defendant filed a written motion to suppress evidence derived from the warrantless seizure of his cell phone, which was ultimately denied. That motion did not address the seizure of defendant's Chevrolet. On the morning of trial, defendant orally moved to suppress the evidence obtained from the Chevrolet. The state objected to the lack of notice under UTCR 4.010 (requiring pretrial motions to be filed 21 days in advance of trial) and complained that the state was not prepared to litigate the motion. Defendant objected to any delay in the trial. The trial court ruled that the motion would be litigated during the course of trial. During a midtrial hearing, the state argued that the warrantless seizure of the Chevrolet was justified by exigent circumstances. The state argued in the alternative that the evidence would have been inevitably discovered.

The trial court denied defendant's motion, concluding that:

“[THE COURT:] [T]he officers' testimony [was] credible and * * * the facts in accordance with their testimony relating to the automobile, * * * [and the] exception of inevitable discovery does provide a basis for search of the automobile, based on the extensive information known to the police at the time, relating to an ongoing investigation of defendant's role in prostitution. So on that basis, the Court denies defendant's motion.”

At trial, in addition to the evidence described above that police obtained from the various traffic stops and the seizure of the Chevrolet, the state presented other evidence against defendant. Because it is relevant to our harmless error analysis, we describe it in detail.

Moss and Honeycutt testified that defendant was their pimp. They testified that defendant would drive them to 82nd Avenue to walk the street, and to locations where prostitution took place. They also testified that defendant orchestrated the process of advertising online by directing the content and paying for the ads. The testimony also established that defendant, Moss, and Casanova registered hotel rooms in each other's names where the women performed prostitution services. Moss and Honeycutt also testified that defendant would threaten verbal and physical abuse if they were not compliant.

Moss also testified that defendant once beat her with his belt because she had not made enough money. After fleeing the hotel, Moss encountered Officers Sharp and Powers and told them that “her pimp had beat her.” Sharp testified that Moss “seemed scared,” and both officers testified that Moss showed them fresh wounds on her back that they both believed could have come from a belt. Police took photographs of Moss's injuries that day.

A manager for Bancorp Bank, the issuer of the gift cards, testified that the gift cards recovered from defendant's Chevrolet had incurred 110 transactions for $4.50 each with the advertising website Backpage.com. (Moss testified that the ads that she and Honeycutt posted cost “about five bucks” on the Backpage.com site.) The state also introduced records from defendant's “SquareUp” account that corroborated Honeycutt's testimony that she had attempted to have a client pay her using defendant's SquareUp device (a credit card reader that connects to cell phones to allow for electronic payments).

Cui also testified that, in an interview the morning after defendant's arrest, defendant said that he did not remember ever meeting Honeycutt, that he knew Moss, but had “barely spent any time with her,” and that Moss was upset with defendant because “she wanted to be with him and he didn't want to be with her.” The state, however, introduced telephone records...