United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, District Judge.
On the evening of June 19, 2013, Officer Brian Dale and Sergeant Troy King of the Portland Police Bureau stopped a white Mercedes in Northeast Portland, believing that the driver of the car failed to signal a lane change in violation of Oregon law. The preceding weeks had seen an increase in gang violence, and the officers were concerned that the occupants of the car-which generally fit the description of a car seen at the funeral of a gang member earlier that day-may have been carrying weapons. The defendant, Dequandre Davis, was riding in the back seat of the Mercedes at the time of the stop. Gresham Police Officer Jim Petersen soon arrived on the scene to assist Officer Dale and Sergeant King; Officer Petersen asked the driver for consent to search the car. The driver consented, and the officers asked the occupants to exit the car. During the search, Officer Dale discovered a handgun located inside a coat. The coat belonged to Mr. Davis and was lying on the rear passenger seat. Mr. Davis was placed under arrest and transported to the North Precinct offices, where he confessed to owning the gun.
Mr. Davis now moves to suppress all evidence obtained as a result of the traffic stop, on two grounds. First, he argues that the police had no basis to initiate the investigatory traffic stop, because the Mercedes was not located in a "lane" and was thus not required to signal a lane change. Second, he argues that the search of the coat was unlawful, because the search was not justified by abandonment, consent, or reasonable suspicion that any of the passengers were armed and dangerous. Although I find that I cannot determine whether the car was located in a "lane, " due to insufficient and ambiguous evidence in the record, I nevertheless find that the traffic stop was justified because any mistake on the part of the officers was a mistake of fact, not of law. Further, I find that although the search of the coat was impermissible under theories of abandonment or consent, I find that the search of the coat was permissible based on the officers' reasonable suspicion that the occupants of the car were armed. Therefore, I DENY the motion to suppress .
I. The Traffic Stop
Portland Police Bureau Officer Brian Dale and Sergeant Troy King, members of Portland's Gang Enforcement Team ("GET"), were patrolling Northeast Portland during the evening of June 19, 2013. (Mem. Supp.  at 1.) Earlier that day, a funeral was held for a Portland-area gang member, and the officers had been assigned to monitor the funeral for gang activity. (Tr.  at 21:24-23:3.) GET officers observed two white Mercedes at the funeral. Id. At 8:25 p.m., the officers stopped one of the Mercedes, seen earlier at the funeral, at the corner of Northeast Glisan Street and Northeast 156th Avenue. (Mem. Supp.  at 2.) Officer Dale indicated in his report that he saw the vehicle move from the "shoulder" on the east side of Northeast 156th Avenue into the northbound traffic lane, without signaling. Id. He reported that, prior to moving onto the roadway, the Mercedes was stopped in a "paved parking lane." (Resp.  at 2.) Officer Dale testified that the surface to the side of 156th was "like part of the slab, or part of a partially poured shoulder area for parking." (Tr.  at 32:17-18.) Although Officer Dale testified that he did not believe there was a curb along 156th Avenue, he believed the Mercedes was located "to the side of the road where someone would park, " prior to pulling into the street. Id. at 30:18-31:6. Similarly, Sergeant King testified that when the officers saw the white Mercedes, "it was pulling away from that paved area just in front of that second house north of Couch [Street]." Id. at 112:3-5.
Officer Dale approached the car and contacted the driver, Corey Johnson, and then identified the three passengers, Arthur Davis, Michael Collins, and Defendant Dequandre Davis. (Resp.  at 2.) Officer Dale recognized Arthur Davis, and recalled that Arthur was associated with the Columbia Villa Crips gang, but was unsure whether Arthur was on probation. (Tr.  at 40:23-41:11.) Officer Dale returned to his vehicle to run a records check on the passengers. (Mem. Supp.  at 3.)
The records check revealed that the defendant, Dequandre Davis, was on probation. (Resp.  at 2.) Officer Dale contacted Gresham Police Officer Jim Petersen, also a member of GET, to request assistance. (Mem. Supp.  at 3.) He then called Mr. Davis's probation officer, hoping to learn whether the terms of Mr. Davis's probation required that he avoid association with known gang members. (Tr.  at 43:10-25.) Mr. Davis's probation officer did not answer, and Officer Dale left a message. (Mem. Supp.  at 3.)
II. The Search
At approximately 8:39 p.m., when Officer Petersen arrived on the scene, Officer Dale requested that he ask for permission to search the Mercedes. (Tr.  at 45:5-16.) Officer Petersen approached the vehicle and asked Mr. Johnson to exit. (Mem. Supp.  at 3.) While doing so, he noticed a dark coat on Mr. Davis's lap. (Tr.  at 156:23-157:1.)
With consent, Officer Petersen frisked the driver, Mr. Johnson, for weapons. (Mem. Supp.  at 3-4). Officer Petersen asked Mr. Johnson if he had attended the funeral of a gang member who had recently been shot. Id. at 4. Mr. Johnson acknowledged that he was indeed at the funeral. (Tr.  at 135:20-25.) Officer Petersen then "asked [Mr. Johnson] if there were any weapons in the car and specifically asked for firearms." Id. at 136:7-8. Mr. Johnson said there were no firearms in the car, and when Officer Petersen asked if the police could search the car for weapons, Mr. Johnson said "yes." Id. at 136:11-14. Mr. Johnson did not "place any limitations" on his consent. Id. at 136:15-16. Officers Petersen and Dale then asked each passenger to step out of the vehicle and frisked them as they emerged. (Mem. Supp.  at 4.) None of the passengers protested, and "[t]hey were all very compliant and cooperative." (Tr.  at 138:19.) Upon exiting, Mr. Davis left his coat on the rear seat of the car. Officer Petersen testified that he could not recall whether he told Mr. Davis to leave the coat behind, but in any event, he would not have let Mr. Davis take the coat out of the vehicle. Id. at 137:19-25. The officers did not find any weapons when they frisked the occupants. (Mem. Supp.  at 4.)
Having frisked all of the occupants of the car, Officer Petersen asked Officer Dale to assist in the search of the Mercedes. Id. Officer Dale noticed Mr. Davis's coat on the rear seat of the car, and picked it up. (Tr.  at 47:5-48:12.) Officer Davis then discovered a handgun inside a pocket of the coat: "it's a peacoat and it's heavy, but it just felt extra heavy. And I started searching the pockets and immediately felt a handgun." Id. at 48:10-12. Officer Petersen could not recall the coat pocket being buttoned or zipped, but testified that he does not normally ask for "separate consent" to search articles of clothing in a car. Id. at 48:13-20. The officers placed Mr. Davis under arrest and escorted him to Officer Dale's patrol car. (Mem. Supp.  at 5.) After the arrest, Officer Dale released Mr. Johnson and the remaining two passengers with a verbal warning concerning the traffic violation. Id.
Officer Dale administered Miranda warnings to Mr. Davis in his patrol car at 9:04 p.m. (Tr.  at 50:6-17.) Mr. Davis replied "yeah, man, " which Officer Dale took to mean that Mr. Davis understood his rights. Id. at 50:13-14. Officer Dale then transported Mr. Davis to the North Precinct, where he questioned Mr. Davis about the handgun. Id. at 50:18-51:18. In response to Officer Dale's questioning, Mr. Davis admitted that the firearm found in the coat belonged to him. Id. Mr. ...