Submitted: February 22, 2013.
Douglas County Circuit Court. 09CR1050FE. Joan Glawe Seitz, Senior Judge.
Peter Gartlan, Chief Defender, and Ryan T. O'Connor, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[260 Or.App. 720] NAKAMOTO, J.
Defendant challenges his conviction for unlawful possession of methamphetamine, ORS 475.894, and assigns error to the trial court's denial of his motion to suppress evidence. After stopping defendant for failure to wear a seat belt, a deputy sheriff sergeant questioned defendant while he was handcuffed in the sergeant's patrol car. During questioning and before he received Miranda warnings, defendant said that the deputies could search his vehicle. Another deputy sheriff conducted the search, found a fanny pack under the passenger seat, and opened it, thereby discovering the methamphetamine. Defendant contends that the trial court should have suppressed his statements and the physical evidence due to the violation of his rights under Article I, section 12, of the Oregon Constitution. We agree and reverse and remand for further proceedings.
We present the facts from the trial court's findings and the suppression hearing, viewed in the light most favorable to the state. State v. Guggenmos, 350 Or. 243, 245, 253 P.3d 1042 (2011); State v. Pickle, 253 Or.App 235, 237, 288 P.3d 1039 (2012), rev den, 353 Or. 428, 299 P.3d 889 (2013). Defendant and his passenger, Keith, were driving in Douglas County when Sergeant Robeson observed that defendant was not wearing a seatbelt. Robeson stopped defendant and asked him for his driver's license, but defendant did not produce a license or any other form of picture identification. Robeson then asked defendant to step out of the car and detained him to verify his identity. Robeson handcuffed defendant, searched him, and placed him in the back of his patrol car. Deputy Poe arrived to assist around the time Robeson was taking defendant into custody.
Robeson and Poe both attempted to identify defendant. Robeson asked defendant
questions about his identity and filled out a form based on defendant's responses. Defendant told Robeson that he was from Utah and gave him other identifying information, which Robeson then gave to dispatch to search for an Oregon or Utah driver's license. Meanwhile, Poe used his in-car computer to search for more information about defendant, including looking for mug shots from the local jail and " wants and warrants." [260 Or.App. 721] Before dispatch responded, Robeson further asked defendant whether there was " anything in the vehicle that we should be concerned about." Defendant answered " no" to that. Robeson did not ask for consent to search; however, defendant then volunteered that, if the deputies wanted to " search the vehicle," they could.
Poe found that there was a restraining order entered against defendant and informed Robeson, who then told Poe about defendant's consent to search the car. Poe conducted the search while Robeson interviewed Keith. Among other things, Poe found a fanny pack under the passenger seat. He showed it to Keith and asked whether it was hers. She said that it did not belong to her. Poe then opened the fanny pack and found several small zip-lock plastic bags, a pill bottle, and plastic straws, all containing a white powder residue.
Poe and Robeson then returned to defendant after a third deputy, Thornton, arrived to assist. Poe gave defendant Miranda warnings and asked questions about what Poe had found in the car. Defendant then made incriminating statements, including admitting that the fanny pack was his and that there was drug paraphernalia in it. Thornton's field test on one of the plastic bags indicated that the white residue it contained was methamphetamine.
In seeking to suppress all evidence resulting from the search, including his incriminating statements, defendant argued, among other things, that the evidence should be suppressed because of a Miranda violation. Defendant contended that he was in custody and under compelling circumstances while he was handcuffed in the police vehicle and that Robeson was asking defendant questions without giving required Miranda warnings for the purpose of furthering a criminal investigation, beyond issuing a traffic citation. His consent to search the vehicle, he argued, was invalid because it was obtained during that period of questioning. Defendant also contended that, even if he had validly consented to a search of the vehicle, the state did not meet its burden to establish that his consent ...