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State v. Aung

Court of Appeals of Oregon

September 10, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
ZIN MIN AUNG, Defendant-Appellant

Argued and Submitted February 19, 2014

 Washington County Circuit Court No.C111828CR,  D. Charles Bailey, Jr., Judge.

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

David B. Thompson, Senior 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 Ortega, Presiding Judge, and DeVore, Judge, and Edmonds, Senior Judge.

OPINION

Page 352

[265 Or.App. 375] ORTEGA, P. J.

Defendant challenges his conviction for unlawful possession of a controlled substance,[1] arguing that the trial court erroneously denied his motion to suppress evidence obtained during a search of his car. He maintains that the police officer who stopped him for a traffic violation unlawfully extended the duration of that stop by asking a second officer to finish writing the traffic citation while the first officer sought and received defendant's consent to search his car. Defendant suggests that the delay caused by the handoff of the citation--even if only a few seconds--violated Article I, section 9, of the Oregon Constitution, thus requiring the trial court to suppress the evidence that resulted from the search. The state disagrees that there was an unlawful extension of the stop, noting that the officers " expeditiously proceed[ed] with the steps necessary to complete the stop." We affirm.

We review the trial court's denial of defendant's suppression motion for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In doing so, we are bound by the trial court's express and implicit factual findings if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts consistently with that standard.

Officer Haugen stopped defendant for failure to obey a traffic control device and an unsignaled lane change. Defendant presented Haugen with his driver's license. Haugen radioed for a cover officer as he returned to his patrol car. Haugen conducted a records check, which came back " clear and valid." He then decided to issue a citation to defendant for an unsignaled lane change. After Haugen began writing the citation, Officer Corning arrived, and Haugen asked him to complete the citation. Corning took over processing the citation, and Haugen approached defendant and asked him to get out of the car. Haugen then asked for and received defendant's consent to pat him down for weapons. Haugen's pat-down did not produce any weapons, but he then asked defendant if he could search his car. Defendant consented, and the search revealed two Oxycodone pills. [265 Or.App. 376] Defendant admitted to illegally possessing the Oxycodone, and he was ultimately charged with unlawful possession of a controlled substance.

Page 353

Before trial, defendant moved to suppress evidence obtained in connection with the search of his car, arguing, among other things, that Haugen unnecessarily extended the traffic stop by asking Corning to complete the citation. The trial court denied the motion, finding that Haugen's request for consent occurred while Corning was still filling out the citation and that there was no unlawful extension of the traffic stop. The trial court found defendant guilty after a stipulated facts trial.

Defendant appeals the resulting judgment, reprising his argument from below. He asserts that Haugen, by asking Corning to finish the citation, unlawfully extended the duration of the stop " because physically exchanging the citation delayed the completion of the citation." Defendant recognizes that the exchange between Haugen and Corning " may have added only a few seconds to the duration of the stop" but asserts that State v. Dennis, 250 Or.App. 732, 740, 282 P.3d 955 (2012), controls and that, in that case, we held that the rule against extending the duration of a stop " applies regardless of the length of the extension." Defendant argues that " Haugen did not need to ask Corning to finish the citation, and thus did so as an alternative to going forward with his duty to expeditiously complete the stop." Accordingly, defendant maintains that the citation " handoff" between Haugen and Corning extended the duration of the stop, thus subjecting defendant to an unlawful seizure under Article I, section 9.

The state counters that Dennis does not control and that the officers did not unlawfully extend the stop in this case. The state proposes that the proper inquiry is whether the officers were " expeditiously proceeding with the steps necessary to complete the stop," not whether the stop was completed in the most expeditious time humanly possible. The state contends that the officers expeditiously moved the investigation and citation process along, such that the traffic stop was not unlawfully extended. The state distinguishes Dennis, complaining that that case occurred in a different [265 Or.App. 377] context--where an officer inquired about a criminal matter unrelated to the traffic ...


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