Submitted November 26, 2013
Marion County Circuit Court. 11C51568. David E. Leith, Judge.
Peter Gartlan, Chief Defender, and Elizabeth Daily, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[264 Or.App. 351] SERCOMBE, J.
Defendant appeals a judgment convicting him of unlawful possession of methamphetamine, ORS 475.894, and felon in possession of a restricted weapon, ORS 166.270(2). On appeal, he asserts that the trial court erred in denying his motion to suppress. For the reasons explained below, we affirm.
We review a trial court's ruling on a motion to suppress for legal error, and state the facts consistently with the trial court's express
and implied findings. See State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005) (a reviewing court is bound by the trial court's factual findings if there is supporting evidence in the record and, in the absence of express findings, presumes the trial court found the facts consistently with its ultimate conclusion).
On the evening of December 7, 2011, Hickam, a deputy with the Marion County Sheriff's Office, was on patrol when he observed a Honda CR-V make a left turn without signaling. Hickam activated the overhead lights on his patrol car, and the Honda stopped in front of a residence (which turned out to be defendant's). Defendant was the front seat passenger in the vehicle, which was driven by Reinwold and also contained a backseat passenger, McElroy.
As Hickam approached the vehicle, " everybody in the car started moving around" and he observed McElroy " reaching to his side." That movement in the vehicle made Hickam--who had, on a prior occasion, been involved in a traffic stop where the backseat passenger attempted to shoot him--concerned about his safety. Accordingly, when he reached the vehicle, Hickam instructed its occupants to keep their hands where he could see them. After they complied, Hickam asked the driver for his license, vehicle registration, and insurance information, and, once he had received those items, he wrote down the information and returned them to the driver. Hickam then returned to his patrol car and, because of his safety concerns, immediately called for a second unit. Then, while sitting in his patrol car with the driver's door open, Hickam began to run the driver's information. As he did so, he observed McElroy moving [264 Or.App. 352] around in the vehicle again and defendant " reaching onto the floorboard of the car." The men appeared to the officer to be " putting something in their pants or getting rid of something." In the deputy's experience, that type of behavior had sometimes correlated with the presence of weapons. Although the traffic stop was not yet complete--the deputy had learned that the driver's license was valid but had not yet run the insurance information--Hickam determined that he could not safely write the citation at that point in light of the continued movement in the Honda.
A second deputy arrived almost immediately (approximately three minutes into the stop and one minute after Hickam called for a second unit) and, with that deputy present, Hickam returned to the Honda to follow up on his safety concerns. Hickam first asked McElroy whether he had any drugs, weapons, or anything illegal. After McElroy said that he did not, Hickam asked whether " he'd be willing to step out and allow [Hickam] to check." After McElroy agreed, Hickam checked and found nothing on him. Hickam then went through the same procedure with the driver. After finding nothing on the driver, Hickam came around to defendant's side of the car and asked him the same question. Defendant, who was wearing a " Gypsy Joker" shirt associated with " an outlaw criminal biker gang in the Salem area" whose members are known to carry weapons and drugs, opened the door of the car and responded that he had a " couple [of] knives," and, on the floorboard, Hickam observed a shotgun barrel. The deputy asked defendant if he would " be willing to step out and allow [the officer] to check," and defendant agreed that he would. In the front pocket of defendant's pants, Hickam found a knife with a four-inch blade that ...