State v. Taplin
| Decision Date | 19 May 2021 |
| Docket Number | A166010 (Control), A166012 |
| Citation | 311 Or.App. 542,491 P.3d 80 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Dante Lamon TAPLIN, Defendant-Appellant. |
Neil F. Byl, 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.
Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.
In this consolidated criminal appeal, defendant appeals from two judgments of conviction raising five assignments of error and two pro se supplemental assignments of error. We write to address defendant's second assignment of error; we reject the remaining assignments of error without written discussion. In his second assignment, defendant challenges the denial of his motion to suppress evidence found in a holding cell. Defendant argues that the jail deputy's act of lifting a privacy curtain while defendant was in the cell to use the bathroom constituted an unlawful search under both the state and federal constitutions. The state, in turn, asserts that the trial court did not err because defendant did not maintain a protected privacy interest in the holding cell. For the reasons explained below, we affirm.
We review the denial of a motion to suppress for errors of law, and we are bound by the trial court's findings of historical fact if there is constitutionally sufficient evidence in the record to support those findings.
State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). We state the facts in accordance with that standard.
In September 2016, Officer Sparks was working as an undercover officer in the Old Town district of Portland, an area known for its high rate of drug-related activity. Sparks observed defendant among a "group of people that were trying to conceal what they were doing." Sparks watched defendant reach into his pocket and take out a plastic baggie. Using binoculars, Sparks saw that the baggie contained "something consistent" with crack cocaine, and watched defendant "pour [the contents of the baggie] out into his hand" and then pour the contents into the hand of a woman that had approached the group. Afterwards, defendant and the woman "immediately broke contact" and each walked away.
As that was happening, a marked police car drove by the group. Sparks saw defendant "key in on the car" and that, as it drove by, defendant "immediately snatched the bag up, put his hands in his pocket[,] and started walking westbound." As defendant was walking, Sparks saw defendant's hands dip into his pockets and then down the front of his pants.
By then, Sparks had radioed other officers that he had probable cause to believe that defendant had committed the crime of delivery of cocaine and had provided them a description of what he had observed. Two officers who were also patrolling the area located defendant and attempted to make contact with him; however, as one of the officers exited the police car, defendant started running. The officers called for further back-up and eventually defendant was taken into custody. Officer Dauchy Mirandized defendant and conducted an inventory search of his person. Dauchy did not find anything on defendant except a plastic bag of coins. As Dauchy conducted the inventory search, another officer ran defendant's name and discovered a warrant for his arrest. Officers transported defendant to the Multnomah County jail.
As part of the booking process at the jail, defendant was strip searched for contraband. Nothing was found during the strip search. While officers were completing booking paperwork, defendant asked to use the bathroom. The officers initially responded by asking him to wait until they finished inventorying his property, but defendant repeatedly asked to use the bathroom. Eventually, Sergeant Blair offered to escort defendant to one of the holding cells to use the bathroom. At the suppression hearing, Blair explained that the holding cells are used for a variety of purposes when individuals are first taken into custody: combative individuals requiring a place to be secured, individuals with medical needs requiring privacy, individuals suspected of concealing drugs or contraband requiring a strip search, and individuals requiring the bathroom when the booking process is slow or busy. The holding cells consist of a toilet, a sink, and a bench for individuals to sit. Each cell also has a window made of safety glass with "little holes on the side" that allow individuals to communicate through the window. A "privacy curtain," which can be moved up and down by a corrections deputy, covers each cell window.
Blair escorted defendant to one of the holding cells, shut the door, and put the privacy curtain down. Blair testified that the cell doors locked from the outside such that detainees have to either hit a call button that flashes a light for the deputies, knock on the door, or talk through the window to let the deputy know that they need something. Blair further testified that it was not uncommon for intoxicated detainees to fall asleep or for detainees to "just wait and wait" for a deputy to come back and open the cell door.
Blair did not hear sounds consistent with bathroom use. Blair explained that, because the cells have stainless steel toilets, "you can hear people urinate" from outside the cell. After approximately 30 seconds had elapsed after defendant entered the cell, Blair went to check on him having not heard defendant urinating or flushing. (Blair initially testified that a couple of minutes had passed but, after watching the surveillance video, acknowledged that it was approximately 30 seconds.) Blair partially lifted a corner of the privacy curtain and asked defendant "if he was going to take a pee or not."
When Blair lifted the privacy curtain to look into the holding cell, she saw defendant standing in the opposite corner of where the toilet was located, with his back to the door. After Blair asked defendant if he was going to use the bathroom, defendant turned around, said "yes," and turned to face the toilet. Blair then put the curtain back down. However, she found defendant's behavior "odd" and immediately lifted the privacy curtain back up. Blair testified that defendant was standing "as if he was going to use the restroom" with his hands at his waist, and Blair saw something drop between defendant's legs into the toilet. Blair then opened the door and ordered defendant out of the cell. Defendant repeatedly attempted to flush the toilet before leaving the cell, but—unknown to both Blair and defendant—the water had been turned off. Throughout her entire interaction with defendant, Blair never saw defendant unclothed. When Blair entered the cell, she "saw a plastic bag floating on top of the toilet water." The bag contained a "white powdery substance" that later tested positive for cocaine. Defendant was charged with unlawful delivery of cocaine, unlawful delivery of cocaine within 1,000 feet of a school, and unlawful possession of cocaine.
At trial, defendant moved to suppress the evidence of cocaine found in the toilet of the holding cell. Defendant relied on Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution to argue that suppression was required because Blair violated his right to privacy when she lifted the privacy curtain and observed defendant in the holding cell where he had been placed to use the bathroom.1 Defendant asserted that, because Blair pulled down the privacy curtain specifically for the purpose of giving him privacy to use the bathroom, there was no reason for her to pull up the curtain after approximately 30 seconds.2 In response, the state contended that as a detainee, defendant had no right to privacy in a jail cell bathroom. Furthermore, the state argued that Blair's act of conducting a "quick peek" to check on defendant was not unreasonable.
The trial court denied defendant's motion to suppress, concluding that Blair's actions did not amount to a constitutional violation:
At trial, a jury found defendant guilty of all charges.3
On appeal, the parties largely renew the arguments that they made before the trial court. Defendant contends that under Article I, section 9, he had a right to privacy in using the bathroom in the holding cell. In support of that argument, defendant points to a prior decision...
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