Submitted December 30, 2013.
Multnomah County Circuit Court. 110833156. Christopher J. Marshall, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
[263 Or.App. 2] HASELTON, C. J.
Defendant, who entered a conditional
plea of no contest, ORS 135.335(3), for possession of heroin, ORS 475.854, appeals the resulting judgment, assigning error to the trial court's denial of his motion to suppress evidence. For the reasons amplified below, we conclude that the arresting officer unlawfully extended the duration of the stop in violation of Article I, section 9, of the Oregon Constitution  when he asked defendant about drugs without reasonable suspicion of criminal drug activity, and that the evidence that defendant seeks to suppress was the unattenuated product of that illegality. Accordingly, we conclude that the trial court erred in denying defendant's motion to suppress, and we reverse and remand.
We review the trial court's denial of defendant's motion to suppress for errors of law. State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993). In doing so, we are bound by the trial court's express and implicit factual findings if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts in accordance with that standard.
On August 2, 2011, Gresham Police Officer Long and his partner were dispatched to assist other officers who were looking for a wanted person, Hamilton, who had fled police officers on foot after they attempted to execute an arrest warrant. Long was not informed about the basis of that warrant. While driving in the neighborhood in which Hamilton had last been seen, Long and his partner saw defendant's car stopped and idling in a traffic lane. There were no other vehicles traveling on that street. Long believed that defendant was impeding traffic in violation of ORS 811.130. [263 Or.App. 3] As Long watched defendant's car, a man who matched Hamilton's description ran to the car, opened the front passenger door, jumped in, and leaned the seat back. At that point, Long was " concerned" that defendant was helping Hamilton evade the police.
Long and his partner drove toward the front of defendant's car, activated the overhead lights on their patrol car, and parked in front of defendant's car. Another police car with its overhead lights on pulled behind defendant's car. While other officers arrested the front-seat passenger (who, indeed, was Hamilton), Long approached the driver's side window and asked defendant to step out of the car. Defendant complied. Long asked defendant for his driver's license and proof of insurance, and defendant responded that he had insurance but no driver's license.
Long then asked defendant for consent to search him for drugs. Defendant consented and admitted that he had heroin in his pocket, which Long located and seized. Long arrested defendant, placed him in handcuffs, advised him of his Miranda rights, and placed him in the back seat of a patrol car. Long then asked defendant for consent to search his car. ...