Submitted: October 16, 2013
Tillamook County Circuit Court. 116105. Mari Garric Trevino, Judge.
Peter Gartlan, Chief Defender, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[262 Or.App. 369] ORTEGA, P. J.
Defendant appeals a judgment of conviction for unlawful possession of a firearm, ORS 166.250. He assigns error to the trial court's denial of his motion to suppress evidence of a firearm found in his car during a traffic stop. He argues that the officer discovered the evidence after unlawfully extending the traffic stop in violation of Article I, section 9, of the Oregon Constitution. We conclude that the officer unlawfully extended the traffic stop when he asked defendant about weapons without reasonable suspicion of criminal activity or concern for his personal safety and, therefore, the evidence of the firearm should have been suppressed. Accordingly, we reverse and remand.
We review the trial court's denial of a motion to suppress for errors of law, and defer to the trial court's findings of historical fact when there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993); State v. Gomes, 236 Or.App. 364, 370, 236 P.3d 841 (2010).
In the middle of the afternoon, Trooper Hall, of the Oregon State Police, stopped defendant for speeding. When he approached defendant's window, he " noticed what appeared to be a box of ammunition sitting on the passenger side seat that was partially covered by some clothing * * *." He immediately became concerned for his safety and " wanted to know where the firearm associated with the ammunition would be," so he asked defendant " Where is the weapon?" Defendant replied, " What weapon?" Hall started to tell defendant that he had seen the box of ammunition when he " realized it was not a box of ammunition but a box of cigarettes * * *." At trial, Hall explained that the only indication that he had that there might be a firearm in the car was
the box that he thought contained ammunition. However, he stated that because the question that he had asked defendant " had never been answered" he " asked again where is the weapon[?]" In response, defendant made a motion indicating that there was a weapon under the armrest. Upon request, defendant consented to a search. Hall discovered a handgun concealed in the armrest, which defendant possessed without a concealed handgun license.
[262 Or.App. 370] After being charged with unlawful possession of a firearm, defendant moved to suppress evidence obtained as a result of the search. Defendant argued that once Hall realized that the box was not ammunition, he had no reason to believe that defendant had a weapon. It follows, he contended, that Hall unlawfully extended the stop when he asked about the weapon a second time. The trial court denied that motion, concluding that " asking about the presence of weapons in the vehicle was not an illegal expansion of the stop and that defendant was not unlawfully detained." Ultimately, defendant waived his right to a jury trial and the trial court found him guilty.
On appeal, defendant assigns error to the trial court's denial of his motion to suppress, raising the same argument that he made below--that Hall did not have reason to suspect that defendant was armed or dangerous once he realized that what he thought was ammunition was actually a carton of cigarettes. The state concedes that Hall's second question about a weapon extended the stop. Nonetheless, the state argues, that the extension was lawful because it was justified by " legitimate officer-safety concerns" that were raised when defendant gave an ambiguous and evasive response to the first ...