Submitted on June 27, 2012.
Clackamas County Circuit Court CR0901676, CR0901677, Robert D. Herndon, Judge. (Judgment entered 5/28/2010), Steven L. Maurer, Judge. (Judgment entered 6/2/2010)
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellants.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
This is a consolidated appeal by defendant Ramirez-Rivera, who was convicted of one count of unlawful delivery of heroin, ORS 475.850, and by defendant Magana, who was convicted of one count of unlawful manufacture of heroin, ORS 475.846. During an "interdiction exercise, " police officers approached Ramirez-Rivera at a bus stop, requesting to search his truck and his person. After they obtained Ramirez-Rivera's address, some officers went to his apartment and encountered Magana. The officers searched the apartment, finding the incriminating evidence at issue in this case. At trial, each defendant filed a separate motion to suppress. Ramirez-Rivera argued that the officers unlawfully stopped him at the bus stop and his subsequent consent to search his truck and person was derived from that unlawful stop. Magana argued that he did not consent to the search of the apartment. The trial court denied both motions to suppress. For the following reasons, we reverse and remand.
We state the facts consistently with the trial court's findings of historical fact, provided that they are supported by constitutionally sufficient evidence in the record, and we assess independently whether those findings support the trial court's legal conclusion. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). Officers Kenagy, Devlin, Castaneda, and Groshon, along with two other law enforcement officers, all part of the Narcotics Task Force, performed an interdiction exercise at a Portland bus stop. According to Kenagy, the purpose of an interdiction exercise is to "stem the flow of narcotics and narcotics currency into and out of the Portland metro area" by working at bus stations and "all of the major public transportation thoroughfares." Kenagy, wearing plain clothes and carrying a concealed weapon, approached a passenger, Rosales-Perez, as he got off the bus, showed his badge, and asked if he could search Rosales-Perez's bag for narcotics and narcotics paraphernalia. Rosales-Perez agreed to the search, and Groshon came with a narcotics canine to search the exterior of his duffle bag; the narcotics canine did not detect anything. Kenagy then requested to search inside Rosales-Perez's duffle bag and pockets, and Rosales-Perez agreed; Kenagy did not find any contraband. At some point, Kenagy asked for identification, and Rosales-Perez gave Kenagy an identification card, not government-issued, which stated that he lived nearby at an apartment on Webster Road. Kenagy noted the address and handed Rosales-Perez's identification card back to him.
While Kenagy was talking to Rosales-Perez, Devlin saw one of the defendants in this case, Ramirez-Rivera, wave at Rosales-Perez from his pickup truck that was parked at the bus stop. Devlin, wearing plain clothes and carrying his gun underneath his shirt, approached Ramirez-Rivera and explained that he was a narcotics officer. He then asked whether he knew Rosales-Perez. When it became apparent that Ramirez-Rivera did not speak English, Castaneda, who was standing away from Devlin, was brought over to interpret in Spanish. Castaneda was in plain clothes but wearing a "police-issued" vest with a badge and had his gun exposed.
Castaneda then asked whether Ramirez-Rivera was at the bus stop to pick up Rosales-Perez, but Ramirez-Rivera denied knowing Rosales-Perez, explaining that he had gone to a nearby mini-mart to make a money-wire transfer. At some point Devlin asked for Ramirez-Rivera's identification, and Ramirez-Rivera provided him with an identification card that was not a valid Oregon driver's license. Although Ramirez-Rivera was apparently driving without a license, Devlin did not inform him that he was being stopped for a traffic violation and did not cite him for driving without a valid license. Devlin, through Castaneda, also asked Ramirez-Rivera if the officers could search his person and his truck, and he agreed.
After consenting to the search, Ramirez-Rivera stepped out of his truck, and Devlin patted him down for weapons. Groshon then searched the truck with the narcotics canine, and Castaneda searched Ramirez-Rivera and the rear of the truck. At some point, one of the officers conducted a records check on Ramirez-Rivera; it is not clear from the record which officer conducted the check or when it was conducted. Devlin testified that it may have happened after Ramirez-Rivera was standing outside his truck and while Groshon was searching it. None of the officers found any contraband during the search. While Ramirez-Rivera was standing at the rear of the truck, Castaneda asked where Ramirez-Rivera lived, and Ramirez-Rivera responded that he did not remember his address and provided Castaneda with a money-order receipt, which stated an address that was identical to the address on Rosales-Perez's identification card. Eventually, Ramirez-Rivera admitted that he did know Rosales-Perez.
After the officers exchanged information gathered from Rosales-Perez and Ramirez-Rivera, the officers decided that some of them should visit the address on Webster Road that they had obtained from Rosales-Perez's identification card and Ramirez-Rivera's money-order receipt. Their decision to visit the Webster Road apartment was based on (1) Rosales-Perez's and Ramirez-Rivera's inconsistent statements about whether they knew each other, (2) evidence that they both lived at the same address on Webster Road, and (3) their observations that Ramirez-Rivera and Rosales-Perez had on or with them pictures, cards, and necklaces with images of Jesus Malverde, a purported cultural icon related to narcotics trafficking in the Hispanic community (as well as an icon for poor people in Latin America). Some of the officers agreed to go to the apartment to conduct a "knock-and-talk" interview, which is a conversation with the apartment's occupant during which the officers will remain on the threshold unless they receive permission to enter the apartment.
Devlin asked Rosales-Perez and Ramirez-Rivera if they could stay at the bus stop while some of the officers went to the Webster Road apartment, and they agreed to stay and wait in Ramirez-Rivera's truck. Devlin, along with another officer, waited in their unmarked vehicle about 50 feet from the truck and would occasionally checked on Rosales-Perez and Ramirez-Rivera. Ramirez-Rivera and Rosales-Perez remained at the bus stop for approximately 20 minutes.
Meanwhile, Kenagy and Castaneda, who were now both wearing ballistic vests, went to the Webster Road apartment building along with three other officers and a narcotics dog. Kenagy and Castaneda went up to and knocked on the apartment door, and the other defendant in this case, Magana, cracked open the door and peeked out to see who was there. When Kenagy and Castaneda identified themselves as police officers, Magana slammed the door, and the officers heard some loud noises inside the apartment. The officers then knocked on the door again, identifying themselves as Portland Police, and, this time, Magana opened the door and stepped out of the apartment. Magana started to close the door behind him, but before he could shut the door, Kenagy asked Magana to put his hands up and patted him down for weapons.
Because Magana did not understand English, Castaneda interpreted the conversation in Spanish. Castaneda testified that he "asked for consent to search * * * the residence for narcotics and asked to use a canine to do so as well" and that Magana's response was that he agreed to the search and "was very calm about it[.]" Kenagy also testified that Magana's response to the officers' request for consent was, "Okay." Kenagy and Castaneda were followed by the three other officers and the narcotics canine. Shortly thereafter, one of the officers found two balls of heroin in the freezer. In addition, the officers later discovered approximately $20, 000 in one of the bedrooms.
Kenagy subsequently arrested Magana and advised him of his Miranda rights. At some point, Kenagy contacted Devlin, who was still at the bus stop, and requested that Devlin arrest Ramirez-Rivera and Rosales-Perez and bring them to the Webster Road apartment for questioning. When Ramirez-Rivera arrived at the apartment, Kenagy advised him of his Miranda rights and began questioning him. While they were at the apartment, both Magana and Ramirez-Rivera admitted that they were roommates and lived with Rosales-Perez. Eventually, both Magana and Ramirez-Rivera made self-incriminating statements.
Both defendants were indicted for one count of unlawful manufacture of heroin, ORS 475.846, one count of unlawful delivery of heroin, ORS 475.850, and one count of unlawful possession of heroin, ORS 475.854. Defendants filed separate motions to suppress evidence. Ramirez-Rivera argued that the officers unlawfully stopped him at the bus stop and any evidence that was obtained from their apartment was a result of that initial unlawful stop. Magana contended that he did not voluntarily consent to the search of his apartment and, thus, the officers' warrantless search of the apartment was unconstitutional.
The trial court held a hearing on defendants' motions to suppress. At the suppression hearing, the trial court heard testimony from Kenagy, Devlin, Castaneda, and both defendants. The trial court denied both defendants' motions to suppress. As to Ramirez-Rivera's theory that he was unlawfully stopped, the court concluded that his interaction with Devlin and Castaneda initially was "mere conversation" during which the officers developed "reasonable suspicion" that Ramirez-Rivera had committed a traffic infraction or criminal violation by operating a motor vehicle without a valid license. The trial court reasoned that, when the officers "asked further about identification and defendant Ramirez-Rivera presented a receipt with the Webster Road address[, ]" "[t]he obtaining of the address under th[o]se circumstances is not subject to suppression or a constitutionally based sanction."
Regarding the encounter between the police and Magana, the court concluded that he had consented to the officers' entry and search of the residence and that there was no indication of any ...