State v. Sunderman

• Decision Date: 20 May 2020
• Docket Number: A164915 (Control),A164916
• Citation: 304 Or.App. 329,467 P.3d 52
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Yevette Jean SUNDERMAN, Defendant-Appellant.
• Court: Oregon Court of Appeals

304 Or.App. 329

467 P.3d 52

STATE of Oregon, Plaintiff-Respondent,

v.Yevette Jean SUNDERMAN, Defendant-Appellant.

A164915 (Control)

A164916

Court of Appeals of Oregon.

Argued and submitted January 30, 2019.

May 20, 2020

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

In this consolidated criminal appeal, defendant appeals two judgments of conviction.

In case number 15CR44342, the state charged defendant with a single count of unlawful possession of methamphetamine, ORS 475.894. In case number 15CR50447, the state charged defendant with one count each of unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894. Following the denial of her motions to suppress in both cases, defendant entered conditional guilty pleas to the charged crimes. On appeal, defendant contends that the trial court erred when it denied her motions to suppress in both cases, because the searches were not conducted pursuant to a search warrant and no exception to the warrant requirement provided a constitutional justification for either search.

In case number 15CR44342, the state concedes, and we agree, that the trial court erred when it denied defendant's motion to suppress. Because a discussion of the facts and law underlying our acceptance of the state's concession would not benefit the bench, bar, or public, we conclude that the trial court erred when it denied defendant's motion to suppress in case number 15CR44342 without further discussion. Accordingly, in case number 15CR44342 we reverse and remand.

With regard to the trial court's denial of defendant's motion to suppress in case number 15CR50447, the state contends that the warrantless search was justified by defendant's consent or, in the alternative, by the automobile exception to the warrant requirement. For the reasons expressed below, we conclude that the state failed to offer sufficient evidence to prove that defendant actually consented to a search of her purse. Furthermore, the facts known to the officer at the time of the search did not provide the officer with probable cause to believe that methamphetamine would be found in defendant's car, and, thus, the automobile exception did not justify the warrantless search of defendant's purse. Accordingly, the trial court erred when it denied defendant's motion to suppress in case number 15CR50447. Therefore, in case number 15CR50447, we also reverse and remand.

I. BACKGROUND

We state the facts from the suppression hearing in case number 15CR50447 consistently with the trial court's explicit and implicit findings that are supported by constitutionally sufficient evidence in the record. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993) ; State v. Barber , 279 Or. App. 84, 85, 379 P.3d 651 (2016).¹

Deputy Baltzor pulled defendant over for failing to use her turn signal. Deputy Bartness was in the area and covered Baltzor on the traffic stop "almost immediately" after Baltzor had pulled defendant over. Baltzor obtained defendant's driver's license and paperwork and returned to his police car to run defendant's information while Bartness approached defendant's car to speak to defendant.

When Bartness got to the passenger side of defendant's car, the glove box was open, and he saw two clear unused pipes that were partially wrapped in tissue paper. Based on his training and experience, Bartness had "no doubt in [his] mind that they were meth pipes" because, "during [his] career, those exact pipes * * * have always been associated with methamphetamine" and have a distinctive shape.² Bartness further testified that the methamphetamine pipes are not used to consume other controlled substances like marijuana, and that, when he finds methamphetamine pipes in a person's car or on their person, he also finds methamphetamine 75 percent of the time. Bartness clarified that, in his experience as a deputy, it is "more likely than not" that he will also find methamphetamine when the methamphetamine pipes are unused, because "[i]f anybody's going to be associated with a meth pipe, they're going to be associated with the use" of methamphetamine. However, in his six-year career, Bartness could only recall one specific instance in which the discovery of an unused methamphetamine pipe resulted in the discovery of additional drugs in the person's vehicle. Furthermore, Bartness acknowledged that unused methamphetamine pipes are not illegal to possess and that "they sell them at stores here in town."

In addition, there was a two-month-old report that someone had knocked on defendant's neighbor's door in the middle of the night and was looking for the house that defendant was living in to purchase methamphetamine.³ Based on his observation of the unused methamphetamine pipes, his training and experience, and the information that he "had been receiving around town regarding [defendant] and what she had been up to," Bartness testified that he had probable cause to believe that methamphetamine would be found in defendant's car.

However, "just to be covered twice," Bartness also decided to ask defendant for consent to search her car because he thought that the issue of probable cause to search "would be a close one." Bartness believed that the unused methamphetamine pipes presented "[a] little gray area" and testified that, if defendant had denied his request for consent to search her car, he "probably [would have] made a phone call to a DA and see what they had to say about it." Accordingly, Bartness approached the driver's side of defendant's car and, without mentioning that he had seen the methamphetamine pipes in the glove box, asked defendant for consent to search her car.

Bartness did not remember exactly how he asked defendant for her consent to search her car or defendant's exact response, but he testified that defendant gave him consent to search her car and that he did not believe that defendant had placed any limitations on where he could search or what he was allowed to search in her car. Bartness "was not too clear" on the following sequence of events because he did not write a report, but he testified that defendant got out of her car and that he "located some methamphetamine * * * inside the wallet that was inside of her purse." Bartness could not recall if defendant gave him consent to search her purse or the wallet that was inside of her purse. Defendant testified that, after she had consented to a search of her car, she had taken her purse out of her car and placed it on the hood, and that she expressly refused to consent to a search of her purse.

Before Baltzor finished processing the traffic stop, Bartness "returned to [Baltzor's] patrol car with methamphetamine pipes and methamphetamine." Baltzor secured those items in the patrol car and then went to talk to defendant. Baltzor handcuffed defendant, provided her with Miranda warnings, and asked her questions about the pipes and the methamphetamine. Defendant told Baltzor that she and some people from her work had pooled their money to have defendant buy methamphetamine and that she had purchased the methamphetamine and the pipes for two of her coworkers. Defendant testified that she would not have made those incriminating statements if Baltzor had not arrested her for the methamphetamine that was discovered in the wallet in her purse.

The state charged defendant with one count of unlawful delivery of methamphetamine and one count of unlawful possession of methamphetamine.

Before trial, defendant moved to suppress all of the evidence that was derived from the warrantless search of her purse, including her incriminating statements. Defendant argued that the state had not met its burden to establish that she had consented to a search of her purse, because Bartness could not recall what happened once defendant exited her car or whether defendant gave him consent to search her purse. Defendant also contended that there was "no probable cause" to justify the search under any other exception to the warrant requirement, because "[t]he observation of drug paraphernalia, standing alone, does not constitute probable cause to search," and because Bartness "was equivocal about whether he had probable cause to begin a search of defendant's car and purse without her consent."

The state responded that defendant validly consented to a search of her car and purse, thereby providing an exception to the warrant requirement. In the alternative, the state argued that the automobile exception to the warrant requirement also justified the warrantless search because Bartness had probable cause to believe that there would be methamphetamine in the car based on his observation of the methamphetamine pipes, his training and experience, and his knowledge of defendant's involvement with methamphetamine in the community.

The trial court denied defendant's motion to suppress, concluding that "defendant consented to a search of her car, and that this consent included consent to search her purse which was located within the car when defendant consented to the search." The trial court did not rule on whether the automobile exception justified the warrantless search of defendant's purse. Following the denial of her motion to suppress, defendant entered a conditional guilty plea to the charged crimes of possession and delivery of methamphetamine. See ORS 135.335(3) ("With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any...