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State v. Marino

Court of Appeals of Oregon

November 27, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
GINA ELAYNE MARINO, Defendant-Appellant.

Argued and submitted on March 20, 2013.

Lincoln County Circuit Court 102835, Charles P. Littlehales, Judge.

Ingrid A. MacFarlane, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.

DUNCAN, J.

In this criminal case, defendant appeals the trial court's judgment convicting her of unlawful possession of methamphetamine, ORS 475.894. She assigns error to the court's denial of her motion to suppress evidence obtained as a result of a warrantless search of the car she was driving, arguing that the state failed to prove that the search was authorized by an exception to the state and federal warrant requirements. Or Const, Art I, section 9; U.S. Const, Amend IV.[1] The state argued, and the trial court agreed, that the challenged warrantless search was authorized by defendant's consent to an earlier warrantless search. For the reasons explained below, we conclude that defendant's consent to the earlier search did not authorize the later search. Accordingly, we reverse and remand.

We begin with the facts, which we state in accordance with the trial court's findings. State v. Ehly, 317 Or 66, 74-75, 854 P.2d 421 (1993) (when reviewing a trial court's denial of a motion to suppress, an appellate court is bound by the trial court's findings of fact, provided that the findings are supported by constitutionally sufficient evidence). On July 26, 2010, Lincoln City police officer Shawn Carter was on routine patrol, driving a marked patrol car on Highway 101. At approximately 12:30 a.m., he saw a blue car traveling northbound. He ran a records check based on the car's license plate number and learned that the car's registration had expired in 2009. Based on that information, Carter turned on his patrol car's overhead and emergency lights to initiate a traffic stop. In response, the blue car pulled into a parking lot and parked. Carter parked behind it.

Carter approached defendant, the blue car's driver. He asked her for her driver's license, the car's registration, and proof that the car was insured. Defendant told Carter that she did not have a driver's license and gave him her identification card. She also told him that the car did not belong to her and that there were no registration or insurance papers in the car. Carter took defendant's identification card to his patrol car to run a records check.

Lincoln City police officer Trenton Morrill came to the parking lot to serve as a cover officer. Carter requested that Morrill ask defendant if she would consent to a search of her car. While Carter remained in his patrol car to complete the records check and write defendant a citation, Morrill approached defendant, who was still seated in the driver's seat of the blue car, and asked her if she had any contraband in the car. Defendant said that she did not. Morrill then asked defendant if she would consent to a search of the car, and defendant said that she would. Defendant got out of the car to allow Morrill to search it.

Morrill noticed that the car was "full of all kinds of personal belongings." He saw a small cooler and opened it, but did not discover any contraband. He then said to defendant, "Wow. You have a whole bunch of clothes in the back of here, " or "Wow. There's a whole bunch of clothes in the backseat." According to Morrill, who could not recall defendant's exact words when he testified at the suppression hearing, defendant replied, "I don't really want you to look in there" or "I don't want you looking through that." Morrill understood defendant's reply to mean that "she didn't want [him] to be rooting through in the back seat of the car." Morrill stopped searching and walked back to Carter's patrol car. He told Carter that defendant had told him that she did not want him to look under the clothes in the back seat. He then told Carter, "This is your stop * * * at this point. Whatever you want to do. I'm here to stand by and be your cover officer."

Carter completed the citation and walked back to defendant, while Morrill remained nearby. Defendant had gotten back into the car and was sitting in the driver's seat. Carter spoke to her through the driver's window. He gave her the citation and told her that she was "free to go."[2] Carter also told defendant that she would not be able to drive away; she would have to leave on foot or wait for someone to come and pick her up. At the suppression hearing, Carter testified that he told defendant that she was "free to go" several times and that he was "very clear about that."

Carter did not walk away from defendant's car after giving defendant the citation. He stayed at her window as she put the citation and her identification card into her purse and got ready to leave the car. Because he was curious, Carter asked defendant why she had limited Morrill's search. Defendant seemed surprised and said that she did not know why Morrill had stopped searching.

Defendant got out of the car and she and Carter took a few steps away from it. While defendant was getting herself organized and ready to leave, Carter asked her if he could search the car. He said, "So you don't mind if I search your car?" or "Why can't I search the rest of your car?" In response, defendant agreed that Carter could search the car, and, during the subsequent search, Carter searched the glove compartment and discovered, inter alia, a small baggie that contained a crystalline ...


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