Argued and Submitted August 21, 2013
Clackamas County Circuit Court. CR0901518. Susie L. Norby, Judge.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeff J. Payne, 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. Egan, J., dissenting.
[266 Or.App. 561] ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for one count of unlawful possession of heroin, ORS 475.854, assigning error to the trial court's denial of his motion to suppress evidence obtained after he was stopped by a Clackamas County Deputy Sheriff. Defendant contends that the officer stopped him without first developing reasonable suspicion that he was engaged in criminal activity, thereby violating Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution.
We review a trial court's denial of a suppression motion for legal error, deferring to the trial court's findings of historical fact when there is constitutionally sufficient evidence in the record to support them. State v. Bertha, 256 Or.App. 375, 378, 300 P.3d 265 (2013). In the absence of express findings, we resolve any factual disputes consistently with the trial court's ultimate conclusion. Id. We state the facts in accordance with that standard.
Witnessing what she believed to be an illegal drug transaction, a named informant contacted the Clackamas County Sheriff's Department. The informant reported that the transaction involved people in two cars--a black Hyundai and a yellow Subaru--that were parked at the far end of a McDonald's parking lot. A Clackamas County Sheriff's dispatcher conveyed the informant's report to Deputy Sheriff Schoenfeld, who knew that that McDonald's parking lot was a common location for the purchase and sale of heroin. Schoenfeld arrived at the McDonald's approximately one minute after receiving the informant's report. Schoenfeld testified at the suppression hearing, that, as he drove to the McDonald's parking lot, the dispatcher had told him that
" [the informant] had observed two Hispanic males in a black Hyundai with no front license plate back into a parking space, door to door with the driver of a yellow Subaru with [an identified Oregon license plate] * * * in the parking lot behind [the McDonald's]. * * * [The informant] related to dispatch that she observed what she believed was an illegal drug transaction between the driver of the yellow car and the driver of the black car."
[266 Or.App. 562] On his arrival at the parking lot, Schoenfeld found the yellow Subaru as it had been described by the informant. The two occupants of the Subaru--defendant, who was the driver, and a passenger--were talking to a third person who was leaning into defendant's window. The black Hyundai was not present. Schoenfeld parked his patrol car " slightly behind and a little away from" the Subaru, which was facing a row of planters and could not drive forward. Schoenfeld testified:
" I didn't intend on blocking them in. In that area I've got lots of police officers in the area. You can see how I parked there [on a diagram]. I wasn't trying to block them in purposely. And the way I parked, [the driver] could have backed out and then pulled out that driveway."
Schoenfeld then got out of his patrol car and approached the Subaru; he did not activate his emergency lights and kept his gun holstered.
Regarding what happened next, Schoenfeld testified at the suppression hearing:
" [T]hey didn't even notice my patrol car pulling up. I was actually able to walk up to the door of the driver, that open window, and asked the guy [who] was near the window to step back near the curb. * * * I walked right up to the window, which was open, and I contacted the driver. And right when I contacted him, he dropped his hands to his lap. And what he was trying to hide was a lighter in his hand and a plastic straw."
Schoenfeld later clarified that he had seen the straw in the driver's hand at that moment but only identified the lighter later, based on its proximity to the straw. He also testified that straws and lighters are commonly used to smoke heroin. Schoenfeld immediately ordered defendant and the passenger to place their hands on the dashboard.
After waiting for backup to arrive, Schoenfeld explained to defendant that a witness had seen him purchasing narcotics, and he asked defendant for consent to search the car. Defendant consented, and the subsequent search produced several tinfoil squares, which Schoenfeld testified were similar to those typically used to smoke heroin, as well as a bag containing what the officers believed to [266 Or.App. 563] be heroin. Defendant and the ...