Submitted on Remand April 18, 2014
Clackamas County Circuit Court. CR09016. Clackamas County Circuit Court. CR0901677. On remand from the Oregon Supreme Court, State v. Magana/Rivera, 354 Or. 837, 325 P.3d 738 (2014) . Robert D. Herndon, Judge. (Judgment entered May 28, 2010). Steven L. Maurer, Judge. (Judgment entered June 2, 2010).
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellants.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the briefs for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the supplemental briefs.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
[265 Or.App. 418] NAKAMOTO, J.
This case, now before us on remand from the Supreme Court, began as a consolidated appeal by defendants Ramirez Rivera (defendant), who was convicted of one count of unlawful delivery of heroin, ORS 475.850, and Magana, who was convicted of one count of unlawful manufacture of heroin, ORS 475.846. The trial court had denied their respective motions to suppress, and they challenged the rulings on appeal. We reversed and remanded with respect to both Magana and defendant. We agreed with Magana's contention that, when the police had encountered him at the apartment he shared with defendant, he had not voluntarily consented to a search and, thus, the officers' warrantless search of the apartment, where heroin and a large amount of cash were found, was unconstitutional. State v. Magana/Rivera, 257 Or.App. 251, 272, 304 P.3d 780 (2013). The Supreme Court denied the state's petition for review as to Magana. State v. Magana, 354 Or. 386, 314 P.3d 964 (2013).
However, the Supreme Court granted the state's petition for review as to defendant. We had reversed as to defendant based on our conclusion that the police had seized him at a bus stop without reasonable suspicion, which then allowed the police to learn information that led them to the apartment. The court vacated our decision and remanded for reconsideration in light of the court's trilogy of opinions in State v. Backstrand, 354 Or. 392, 313 P.3d 1084 (2013); State v. Anderson, 354 Or. 440, 313 P.3d 1113 (2013); and State v. Highley, 354 Or. 459, 313 P.3d 1068 (2013). State v. Magana/Rivera, 354 Or. 837, 325 P.3d 738 (2014). In light of supplemental briefing on remand, we now reverse and remand again, but for a different reason: Magana's involuntary consent and the consequent unlawful, warrantless search of the apartment that he shared with defendant.
[265 Or.App. 419] We take the facts from the evidence presented at the suppression hearing. State v. Bistrika, 261 Or.App. 710, 711, 322 P.3d 583 (2014). Law enforcement officers, all part of the Narcotics Task Force, were performing an interdiction exercise  at a Portland bus stop. Officer Kenagy approached a passenger, Rosales-Perez, as he got off the bus. Having obtained consent, the police deployed a narcotics dog and searched Rosales-Perez and his bag. At some point, Kenagy asked for identification, and Rosales-Perez gave Kenagy an identification card showing his residence at an address on Webster Road. The officers did not find any contraband.
Another officer, Devlin, saw defendant wave at Rosales-Perez from his pickup truck that was parked at the bus stop. Devlin approached defendant and explained that he was a narcotics officer. He then asked whether he knew Rosales-Perez. Because defendant did not speak English, Officer Castaneda was brought over to interpret in Spanish. Devlin and Castaneda questioned defendant, who denied knowing Rosalez-Perez.
At some point, Devlin asked for defendant's identification, and defendant provided an identification card. Although defendant was apparently driving without a license, Devlin did not inform him that he was being stopped for a traffic violation and did not cite him for driving without a valid license. The officers instead obtained defendant's consent to a search of his person and his truck. Defendant stepped out of his truck, and Devlin patted him down for weapons. Officer Groshon then searched the truck with a narcotics dog, and Castaneda searched defendant
and the rear of the truck. The officers did not find ...