Argued and Submitted May 27, 2014.
Douglas County Circuit Court. 11CR0882FE. Frances Elaine Burge, Judge.
Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael S. Shin, 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 Sercombe, Presiding Judge, and Hadlock, Judge, and Mooney, Judge pro tempore.
[267 Or.App. 478] HADLOCK, J.
Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, and driving while suspended, ORS 811.182, challenging only the first of those convictions. That conviction followed an incident in which police officers seized defendant's purse after arresting her for a traffic offense. A later inventory of the purse revealed a bindle containing methamphetamine. The trial court denied defendant's motion to suppress evidence of the methamphetamine and of statements that she made about the contents of the purse. Defendant argues that the police unlawfully seized the purse because they did not honor her request to give it to another person at the scene of her arrest. She also argues that her statements were the product of exploitation of that unlawful seizure. We agree on both points and, therefore, reverse the conviction for unlawful possession of methamphetamine.
The facts are not in dispute. A month before the incident at issue in this case, Corporal Dahl arrested defendant for driving while suspended. Defendant consented to a search of the car and her purse. That search evidently did not reveal any weapons or contraband. Dahl allowed defendant to call her father to come pick up the car (and defendant's children, who were in the car), and he gave defendant's purse to her father as well. Defendant was cited, booked, and then released.
A month later, Dahl saw defendant's car parked at the home of her former boyfriend Keller. Dahl was aware of defendant's relationship with Keller and that Keller was the father of one of defendant's children. He also knew that both defendant and Keller had previously been involved in illegal drug activity and that Keller was currently being investigated for dealing methamphetamine. Dahl verified that defendant's license was still suspended, and then he parked nearby and waited. Later, he saw defendant pull out of the driveway and drive toward him.
Defendant saw Dahl when she drove past him, and she immediately pulled into a parking lot right around the corner from Keller's home and parked the car. Dahl pulled [267 Or.App. 479] in behind her. Officer Allen, who had been parked nearby, pulled into the parking lot a few seconds later. Dahl walked up to defendant and asked why she was driving. According to Dahl, defendant was " immediately more aggressive and immediately more pissed off" about being pulled over than she had been the previous time, though she was not physically aggressive and did not appear to be under the influence of any controlled substance. Nothing that defendant did made Dahl concerned about his safety.
Defendant asked if she could call her mother to pick up the car so it would not be impounded. Dahl told her that she could, and defendant started making telephone calls, eventually calling both her mother and Keller. Dahl asked defendant if he could search her car. Defendant agreed, grabbed her purse, and got out of the car. She stood by Allen's patrol car, with her purse on her shoulder, and continued to talk on the phone. When defendant finished her calls, Allen asked for her consent to search the purse. Defendant declined, saying that she had dirty underwear in the purse and that she wanted to give the purse to her mother when she came for the car.
Dahl did not find anything illegal in defendant's car. When he finished searching, he told Allen to handcuff defendant and put her in the back of Dahl's patrol car. Allen did so, advised defendant of her Miranda ...