Submitted on Remand April 17, 2014
Washington County Circuit Court, No. C090743CR On remand from the Oregon Supreme Court, State v. Canfield, 354 Or. 837, 325 P.3d 738 (2014) . Marco Hernandez, Judge.
Peter Gartlan, Chief Defender, and David O. Ferry, Senior Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the answering brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the supplemental brief.
Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Schuman, Senior Judge.
[266 Or.App. 75] WOLLHEIM, P. J.
This case is before us for the third time. In State v. Canfield, 251 Or.App. 442, 283 P.3d 438 (2012) ( Canfield I ), we concluded that the trial court had correctly denied defendant's motion to suppress evidence. On reconsideration, we agreed with defendant that we had based a portion of our analysis on a misunderstanding of the facts, and under the correct understanding of the facts, defendant had consented to a search in the course of an unlawful stop. We therefore reversed the trial court's denial of defendant's motion to suppress. State v. Canfield, 253 Or.App. 574, 291 P.3d 775 (2012) ( Canfield II ). The state petitioned the Oregon Supreme Court for review, challenging our
conclusion that there had been an unlawful stop. That court allowed review, vacated our decision, and remanded the case to us for reconsideration in light of State v. Backstrand, 354 Or. 392, 313 P.3d 1084 (2013), State v. Highley, 354 Or. 459, 313 P.3d 1068 (2013), and State v. Anderson, 354 Or. 440, 313 P.3d 1113 (2013). State v. Canfield, 354 Or. 837, 325 P.3d 738 (2014) ( Canfield III ). For the reasons set forth below, we now affirm the trial court's denial of defendant's motion to suppress.
We take the facts as set forth in Canfield I :
" An officer in a patrol car in Beaverton saw defendant walking down the street. After the officer drove by, defendant crossed the street and walked quickly toward a mall. The officer made a U-turn and followed defendant. Defendant walked into a parking lot and got into a parked car on the passenger side. The car traveled a short distance in the parking lot and then parked in the parking lot again. The driver of the car and defendant got out of the car and began walking toward a fast-food restaurant.
" The officer approached defendant and the driver and asked to speak with them. The officer told defendant that he saw defendant run across the street and that the officer thought it was strange that the car defendant was in had moved a short distance in the parking lot and then parked again. The officer asked defendant and the driver for identification, which they provided for him. The officer kept the identification long enough to write the numbers on [266 Or.App. 76] his hand--approximately 30 seconds--and then returned the identification to defendant and the driver. The officer noticed that defendant had a folding knife in the pocket of his pants. The officer asked defendant if he had any weapons or drugs. Defendant told the officer that he had a pipe, which the officer suspected was a marijuana pipe.
" The officer asked defendant and the driver if he could search them, and they both consented. The officer put defendant in a patdown or search position with his fingers interlaced behind his back. The officer told defendant that he was not under arrest, that the search position was how the officer conducted searches, and that defendant was free to leave. The officer testified that defendant indicated that he understood when the officer told defendant that he was free to go. During the search, the officer found defendant's pipe and noticed the pipe contained a burnt residue that smelled like marijuana. The officer moved on to the car's driver and repeated the same process. In addition, the officer asked the driver if there was any marijuana in the car and asked for consent to search the car. The driver told the officer that there was marijuana worth $20 in the car and consented to the search. The officer found the marijuana in the car. The ...