State v. Tovar

• Decision Date: 03 April 2013
• Docket Number: 094541FE; A145510.
• Citation: 299 P.3d 580,256 Or.App. 1
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Rudy E. TOVAR, Defendant–Appellant.
• Court: Oregon Court of Appeals

256 Or.App. 1

299 P.3d 580

STATE of Oregon, Plaintiff–Respondent,

v.Rudy E. TOVAR, Defendant–Appellant.

094541FE; A145510.

Court of Appeals of Oregon.

Argued and Submitted April 30, 2012.

Decided April 3, 2013.

Jonah Morningstar, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

ARMSTRONG, P.J.

Defendant appeals a judgment of conviction for unlawful possession of marijuana, ORS 475.864, arguing that the trial court erred in denying, in part, his motion to suppress evidence obtained as a result of a seizure and search by police officers after the police had stopped a vehicle in which defendant was a passenger. We conclude that statements made by defendant during the time that he was unlawfully seized should have been suppressed but reject defendant's contention that the court erred in denying suppression of the marijuana that the police seized from defendant's backpack.

We review a court's denial of a suppression motion for legal error and defer to the court's findings of historical fact if there is constitutionally sufficient evidence to support them. State v. Soto, 252 Or.App. 50, 51, 284 P.3d 1254,rev. den.,353 Or. 127, 295 P.3d 640 (2012). In the absence of express trial court findings, we resolve factual disputes in a manner consistent with the court's ultimate conclusions. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). We discuss the facts consistently with that standard.

While on patrol, Sergeant Sickler of the Jackson County Sheriff's Department stopped an automobile that he had observed to be speeding and swerving in its lane. Sickler asked the driver for her license, registration, and insurance documents; he also asked defendant, who was riding in the front passenger's seat, for his identification. Defendant had no identification, but he provided Sickler with his name and date of birth. Sickler, a certified drug recognition evaluator, thought that defendant appeared lethargic and slow in responding. Sickler also smelled a moderate odor of marijuana coming from the car, although he saw no smoke or other visible evidence of marijuana use—either before he stopped the vehicle or during his interaction with its occupants.

Sickler told the driver and defendant to “stay put,” returned to his patrol car, and ran a warrant check on both the driver and defendant. Sickler then returned to the driver's side of the stopped car and asked the driver and defendant if there was any marijuana in the car; they both responded, “No.” The driver appeared nervous when Sickler questioned her about marijuana, and he asked her for consent to search the car. She asked Sickler if she had to consent to the search, and he responded that she did not. Sickler asked again for consent to search the car, and the driver said, “I guess.” Sickler then asked the driver to step out of her car and wait on the bumper of Sickler's patrol car.

While Sickler was seeking consent from the driver to search her car, Deputy Murillo arrived at the scene of the stop, positioned himself at the passenger's door, and watched defendant. Once Sickler had obtained the driver's consent to search the car, he instructed Murillo to have defendant step out of the car so that Sickler could conduct the search. Defendant complied with that direction, and, although nothing about defendant raised his suspicions, Murillo conducted a patdown of defendant to search for weapons—a practice that Murillo described as “just something that I do if somebody is going to step out of [a] vehicle.” Murillo found no weapons, but he did feel a small canister in defendant's front coat pocket. Murillo asked defendant about the canister, but defendant did not give a clear answer. Murillo did not pursue the matter further with defendant and asked him to wait near the front of the patrol car; Murillo then told Sickler what he had felt in defendant's pocket.

Acting on that information, Sickler, who had not yet begun a search of the car, approached defendant and looked into defendant's coat pocket—which was open enough to render its contents visible. In the pocket, Sickler saw a clear canister that looked like it contained marijuana. Sickler asked defendant whether the canister contained marijuana, and, notwithstanding defendant's denial that it did, Sickler seized the canister and asked defendant to sit on the bumper of the patrol car, next to the driver.

Sickler proceeded to search the car, beginning with the area in which defendant had been sitting. Sickler discovered a backpack there, which defendant acknowledged was his. Sickler asked whether the backpack contained marijuana, and, after hesitating, defendant answered, “No.” Because the backpack was heavy, and because defendant had hesitated, Sickler then asked whether there were pounds of marijuana in the backpack, and defendant replied, “I don't know about pounds.” Defendant did not answer when Sickler subsequently asked if the backpack contained ounces of marijuana, but, when asked if he was dealing marijuana, defendant said, “No.”

Sickler twice sought defendant's consent to search the backpack, and defendant twice refused. Although Sickler did not raise his voice during the requests, his demeanor became “more stern.” After the refusals, Sickler told defendant that “based on the information that [Sickler] had[, he] felt that [he] could apply for a warrant,” and, “if a warrant was granted[,] that the incident would be prolonged.” He went on to say, however, that they “could take care of it tonight if [defendant] consented to the opening of the bag.” Defendant responded by giving Sickler permission to look into the backpack, inside of which Sickler discovered slightly less than one pound of marijuana.

Defendant was indicted for unlawful possession of marijuana, ORS 475.864. He pleaded not guilty and moved to suppress all evidence resulting from the stop, arguing that it had been obtained in violation of Article I, section 9, of the Oregon Constitution.¹ Defendant contended that he had been unlawfully stopped when Sickler first asked for his identification, that he had been unlawfully searched during the pat down, and that his consent to search the backpack was both involuntary and the product of the prior unlawful acts.

The state argued in response that defendant's consent was valid. Without conceding that Murillo's pat down of defendant was unlawful, the state argued that the results of the pat down could be ignored because “no one testified that that led * * * to a basis for asking for consent to search.” The state also argued that, without regard to defendant's consent, the search of the backpack was lawful under the automobile exception to the warrant requirement. The state offered no arguments about the admissibility of defendant's statements.

At the close of the hearing, the court granted defendant's suppression motion in part. It concluded that defendant had been lawfully stopped when Sickler requested defendant's identification, that the subsequent pat down search of defendant was unlawful, and that there was no link between the pat down search and the search of defendant's backpack. Further, the court concluded that Sickler was justified in searching defendant's backpack under the automobile exception to the warrant requirement, as articulated in State v. Smalley, 233 Or.App. 263, 225 P.3d 844,rev. den.,348 Or. 415, 233 P.3d 818 (2010). Accordingly, the court suppressed the evidence discovered on defendant's person as a result of the pat down search but declined to suppress any of defendant's statements or the marijuana from the backpack. Following the court's suppression decision, defendant entered a conditional guilty plea, reserving the right to appeal the court's suppression order.

Defendant contends on appeal that the trial court erred by not suppressing his incriminating statements and the marijuana from the backpack. He contends that he was seized when Sickler told him to “stay put” in the car and that that stop was unlawful because Sickler lacked reasonable suspicion to believe that defendant had committed a crime. He further argues that Sickler obtained defendant's subsequent consent to search the backpack—as well as defendant's other incriminating statements—through exploitation of the unlawful stop, including the unlawful pat down search. The state concedes that defendant was unlawfully seized and searched at the point that Murillo conducted the pat down, but it argues that the discovery of the backpack, defendant's consent to search it, and defendant's incriminating statements were not the product of any unlawful police conduct, because the backpack would have been found even if defendant had not been searched.

Relying on Smalley, the state also argues that, in any event, Sickler was justified in searching the backpack under the automobile exception to the warrant requirement, because the car was mobile at the time of the stop and Sickler had probable cause to believe that contraband would be found in it. Defendant responds that Sickler lacked probable cause to believe that defendant's backpackcontained marijuana and, therefore, that the automobile exception does not apply to the search of the backpack.

Because this case involves multiple articles of evidence, we begin with an iteration of our overarching inquiry: We must determine whether each item of evidence that the state seeks to introduce must be suppressed because it was obtained in violation of defendant's rights under Article I, section 9. See Hall, 339 Or. at 22, 115 P.3d 908. In doing so, we are mindful of the purpose of Oregon's...