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State v. Moore

Court of Appeals of Oregon

July 2, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
BOBBY LYNN MOORE, Defendant-Appellant

Submitted: August 20, 2013.

Clackamas County Circuit Court. CR1100342. Steven L. Maurer, 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, and Anna M. Joyce, Solicitor General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.

OPINION

Page 1028

[264 Or.App. 87] SERCOMBE, P. J.

In this criminal case, defendant was convicted of one count of unlawful possession of methamphetamine. ORS 475.894. He appeals, assigning error to the trial court's denial of his motion to suppress evidence obtained after he was stopped by a sheriff's deputy. He contends that, because the deputy lacked reasonable suspicion that he had committed a crime, the stop was illegal and the trial court should have suppressed all evidence obtained after the stop. On review for legal error, State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993), we reverse and remand.

We are bound by the trial court's findings of fact if there is constitutionally sufficient evidence in the record to support them. Id. at 75. If the trial court did not make express findings of fact on a pertinent issue and there is evidence from which those facts could be decided more than one way, we presume that the court found the facts in a manner consistent with its ultimate conclusion. Id. We state the facts in light of those standards.

On November 10, 2010, at about 1:00 p.m., Cook contacted police dispatch to report seeing two " suspicious males that had parked a vehicle on her property." Cook described the vehicle and relayed its license plate number to dispatch. Cook told dispatch that she had asked the men if they needed help; they declined and told her that they were working on a nearby Christmas tree farm. Cook did not report that she told the men that they were parked on her property or that she asked them to leave.[1] Cook lives in a " fairly remote," densely wooded part of rural Clackamas County.

Sheriff's Deputy Shelly responded to Cook's report. He did not talk to Cook about her report, but saw--just east of Cook's residence and parked on the shoulder " immediately adjacent to" the paved, public road--a vehicle matching Cook's description. The vehicle was " off the road, and it could have been on an easement, but it also could have very well just been right-of-way of the road." Shelly " didn't know [264 Or.App. 88] if th[e] shoulder of the road was necessarily public or private property" or where Cook's property began and ended, and accordingly Shelly was unsure whether the vehicle was or was not trespassing on private property. There was no one in the vehicle or nearby. Shelly checked the vehicle's VIN number from the windshield and determined that the vehicle had not been reported stolen. Aside from the information he had initially received from dispatch, Shelly did not observe anything that caused him to conclude that a violation of the law was in progress.

Shortly after Shelly arrived, defendant walked out of nearby woods; Shelly did not know whether the area from which defendant emerged was Cook's or other private property. Defendant got into the parked vehicle. Intending, at least in part, to investigate whether a criminal trespass was occurring,[2] Shelly approached the vehicle and initiated the encounter with defendant by asking for his Oregon identification card. After Shelly used defendant's identification to check for warrants, he did not return it, but retained it while continuing to question defendant. Defendant's identification was not returned to him until he was released from jail later. In response to Shelly's question, defendant explained that he had been hunting mushrooms with a friend on property that was an overgrown Christmas tree farm belonging to someone other than Cook and that the owner

Page 1029

of that property had given them ...


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