Argued and Submitted August 20, 2013.
Multnomah County Circuit Court. 110646093. Richard C. Baldwin, Judge.
Alice Newlin-Cushing, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Erin Snyder, Deputy Public Defender, Office of Public Defense Services.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.
[263 Or.App. 316] DE MUNIZ, S. J.
Defendant appeals a judgment of conviction for unlawful possession of methamphetamine. ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence. We affirm.
Two Portland Police officers, Yakots and Hettman, observed defendant standing in front of a park bench in an area of downtown Portland that they associated with drug activity. Defendant appeared disheveled. He was going through items in a book bag, which lay open on a park bench. Some of defendant's personal items were spread out on the bench.
Yakots and Hettman parked their patrol car near defendant, got out, and approached him. Yakots said, " Hey, how are you doing? What's going on?" then, " Hey, do you have anything on you you're not supposed to have?" Defendant replied that he did not. While Yakots and defendant were speaking, Hettman obtained defendant's identifying information and returned to his patrol car to run a warrant check. Yakots then asked defendant, " Are you sure? Do you mind if I search?" Defendant said, " No, go ahead."
Yakots prepared to search defendant, telling defendant to put his hands on top of his head. Defendant complied. However, before Yakots could inventory defendant's pants pockets, Yakots noticed a clear tube with an orange cap of the sort used to store hypodermic needles sticking out of the front pocket of defendant's book bag. Defendant saw Yakots looking into his book bag and lunged for the bag. Yakots pushed the bag away and ordered defendant to put his hands back on top of his head. Defendant continued to reach for the bag. Yakots ordered defendant to stop, and defendant swung at Yakots with a closed fist.
Hettman returned from the patrol car and helped Yakots bring defendant to the ground and handcuff him. Yakots then provided defendant with Miranda warnings and asked, " What the heck's going on? Why are we in this [263 Or.App. 317] position that we're in now?" Defendant looked to his bag and said, " Because I have those." The officers found two needles in defendant's bag, one of which tested positive for methamphetamine.
The state charged defendant with attempted assault of a public safety officer, ORS 163.208 and ORS 161.405, resisting arrest, ORS 162.315, attempted escape in the second degree, ORS 162.155, and ORS 161.405 ...