Argued and submitted on November 27, 2012.
Marion County Circuit Court 10C41311 Albin W. Norblad, Judge
Jedediah Peterson, Deputy Public Defender, argued the cause for appellant. With him on the opening brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Myles Russel Peterson filed the supplemental brief pro se.
Michael A. Casper, Deputy Solicitor General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
Defendant appeals a judgment of conviction on one count of delivery of heroin constituting a commercial drug offense, ORS 475.850 and ORS 475.900, and one count of possession of heroin, ORS 475.854. He asserts that the trial court erroneously denied his motion to suppress the evidence obtained from a search of his person and the statements that he made after an unlawfully extended traffic stop. We reverse and remand.
We review the trial court's denial of a motion to suppress for errors of law. ORS 138.220. The trial court's findings of fact are binding on appeal if there is sufficient evidence in the record to support them. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). The following facts are taken from or are consistent with the trial court's findings.
Defendant was driving a Buick automobile when Officer Andrew Connolly saw him run a red light. Connolly activated his overhead lights, and defendant pulled into a parking lot. After defendant parked, Connolly blocked defendant's car into a parking space with his patrol car. Connolly asked for defendant's driver's license, insurance card, and registration. When defendant gave Connolly his license and insurance card,  Connolly recognized defendant from a previous encounter. During that encounter, defendant led police on a high speed chase, and police found ammunition and a knife in or near defendant's car. Connolly was also aware that defendant had been involved in another high speed chase, after which defendant had been subdued, and that defendant had a conviction for carrying a concealed weapon. Based on those safety concerns, Connolly called for backup. He also asked defendant if there were drugs, weapons, or anything illegal in the car. Defendant replied, "Not that I know of[.]"
A second officer arrived and "maintained on the car" with defendant. Connolly returned to his patrol car to write up a citation. After completing the citation, Connolly deactivated his lights, walked back to defendant's car, and returned defendant's documents. Connolly stood at the driver side window, facing the door. He gave defendant the citation and explained the court process. He told defendant that he was "free to go[.]"
Connolly then asked for consent to search defendant's car. Defendant did not consent. Instead, he asked why Connolly wanted to search his car, and Connolly replied that he had safety concerns based on their previous encounter. Defendant remarked that Connolly's patrol car was parked so close to his car that "he didn't feel that he could move." Connolly offered to move his patrol car. Defendant did not say whether "he wanted [Connolly] to move the car or not[.]" Defendant again asked why Connolly wanted to search his car. Connolly reiterated his safety concerns, asking for consent to search a second time. Defendant "never answered that question yes or no[.]"
Defendant then said that he ran the red light because he had been "looking in the rearview mirror at a fat lip." That remark "led to the defendant talking about having been in a fight" the night before. Connolly and defendant discussed whether defendant wanted to press charges against the person who injured him, but defendant said that he did not know if he wanted to press charges.
Seven to 10 minutes had elapsed since Connolly issued the citation. The second officer was still on the scene. While still standing at defendant's window talking with defendant, Connolly saw a for-sale sign for a 1998 Buick on defendant's rear floorboard. Connolly then remembered that the insurance card defendant had given him earlier was for an Acura, not for a Buick. Connolly asked defendant if the Buick was his, and defendant said that it was. Connolly then asked if defendant had insurance on the Buick. Defendant said that his parents took care of the insurance and that his mother had told him that the Buick was currently insured.
Connolly asked for the insurance card back, and defendant handed it over. Connolly said that he would have to verify the insurance information before defendant would be allowed to leave. Connolly returned to his patrol car and called the insurance company. He was told that defendant's parents did, in fact, insure four cars, but that the Buick was not one of them. Connolly went back to defendant's car and told defendant that he was under arrest for knowingly giving an officer false information about liability ...