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State v. Acuna

Court of Appeals of Oregon

July 2, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
JOEL RICARDO ACUNA, Defendant-Appellant

Argued and Submitted: February 19, 2014.

Page 1041

Washington County Circuit Court. C112583CR. Donald R. Letourneau, Judge.

Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Pamela J. Walsh, 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 Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.[*]

OPINION

Page 1042

[264 Or.App. 160] GARRETT, J.

Defendant was convicted of one count of unlawful delivery of marijuana for consideration, ORS 475.860(2). On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence. We affirm.

The events at issue occurred on November 28, 2011. At 4:41 p.m., Hillsboro police received a telephone call from an anonymous informant, who reported that four males in their late teens or early twenties were smoking marijuana while standing at the intersection of Southeast 16th Avenue and Southeast Oak Street. The informant described two vehicles that were associated with the young men: a white extended-cab Ford pickup truck and a beige sport utility vehicle.

At 5:10 p.m., approximately one-half hour after the informant's call, Officer Ploghoft

Page 1043

arrived at the intersection in a marked patrol vehicle. The vehicle's lights and sirens were not activated. Ploghoft saw two vehicles that matched the informant's description and three men, including defendant, standing on the sidewalk next to the vehicles, with a dog on a leash. Ploghoft approached the men on foot and greeted them from a distance of about five to eight feet. He explained that police had received a report of marijuana use at that location and asked the men if they had been using marijuana. Defendant and his companions denied smoking or possessing drugs.

Within the first minute of the conversation, Ploghoft noticed a strong smell of what he believed was unburned marijuana in the immediate vicinity. Ploghoft could not pinpoint the odor's source. He asked the men about the odor and again asked whether they had marijuana, which they continued to deny.

At 5:12 p.m., Ploghoft radioed for a backup officer. While waiting for assistance, Ploghoft explained to the men that he " appreciate[d] honesty and cooperation from them" and that " simple possession of less than an ounce of marijuana * * * is simply a ticket or violation." Defendant [264 Or.App. 161] said that he " needed to go, because his girl was calling him." Ploghoft did not respond, and defendant did not try to leave.[1]

Shortly thereafter, Officer Peterson arrived on the scene. Peterson, according to Ploghoft's testimony, was " more aggressive" than Ploghoft. Ploghoft asked defendant for consent to a patdown search. In reply, defendant handed Ploghoft a glass pipe from his pocket. Ploghoft observed that the pipe contained burnt marijuana residue and smelled of burnt marijuana. Defendant then consented to the patdown search. During the search, Ploghoft felt a baggie " with something soft in it" in defendant's pants pocket. He asked defendant if he had " weed" in his pocket, and ...


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