Argued and Submitted December 19, 2013.
Coos County Circuit Court 11CR0891. Michael J. Gillespie, Judge.
Alice Newlin-Cushing, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[264 Or.App. 294] EGAN, J.
Defendant appeals a judgment of conviction for one count of unlawful possession of marijuana, ORS 475.864. He assigns error to the trial court's denial of his motion to suppress evidence that was obtained during his encounter with a North Bend police officer. He contends that he was unlawfully seized in the course of that encounter and that the evidence acquired as a result of that seizure should have been suppressed. We review the denial of that motion for errors of law, deferring to the trial court's factual findings when there is evidence in the record to support them, State v.Hampton, 247 Or.App. 147, 149,
268 P.3d 711 (2011), rev den, 352 Or. 107, 284 P.3d 485 (2012), and affirm.
At around ten-past midnight, Officer Dunning of the North Bend Police Department drove his patrol car past defendant, who was walking down the street carrying a " sea bag." After attending to some other business, Dunning caught up with defendant down the road. Dunning pulled up alongside defendant and rolled down his window to talk with him. By defendant's reckoning, Dunning's car was two or three steps from the curb where defendant was standing. The two had spoken many times before. Dunning began by saying something like, " What are you doing tonight?" or, " How's it going tonight?" Early in the course of the conversation, defendant began to approach Dunning's cruiser. When defendant began to approach, Dunning told defendant something to the effect of, " stay where you are" or, " stay there."  Dunning then got out of his cruiser and came to the [264 Or.App. 295] sidewalk to talk with defendant. In the course of what defendant described as " the initial casual talk that we always have," defendant told Dunning that he had been out collecting cans, an activity that Dunning knew that defendant engaged in with some regularity. Dunning asked defendant what was in the sea bag. Defendant replied that it held cans and put the bag on the ground, in an apparent attempt to make noise with the cans to audibly demonstrate the bag's contents. Dunning asked to look inside the bag. Defendant replied, " 'Sure, why not?'" and partially opened it up. Dunning observed a black garbage bag inside. Dunning asked what was inside the garbage bag; defendant told him that it held more garbage bags. Dunning then asked if he could look inside the garbage bag. Defendant partially opened it, and at that point Dunning smelled marijuana and observed plant material. According to Dunning, defendant then said, " It's marijuana," and " I'm going to jail."
Defendant was charged with unlawful possession of marijuana, ORS 475.864. He moved before trial to suppress all evidence that was obtained as a result of the encounter with Dunning, which, he contended, amounted to an unlawful seizure of his person by Dunning in violation of Article I, section 9, of the Oregon Constitution. After a hearing, the trial court denied defendant's motion and made the following finding: " I draw a lot about the tenor of the conversation from the words that the Defendant used in describing it. I mean, it seems to me that the Defendant pretty much indicated that it was kind of what the police officer said--a conversation in the middle of the night with somebody you know."
Defendant challenges the denial of that motion, contending that he was unlawfully seized by the time that Dunning detected the presence of marijuana in his bags. The state responds that defendant was not seized--and thus not seized unlawfully--at that time.
[264 Or.App. 296] Article I, section 9, protects individuals against unreasonable searches and seizures. Under that section, a " seizure" occurs " (a) if a law ...