Submitted September 24, 2013.
Douglas County Circuit Court. 11CR0351FE. Ronald Poole, Judge.
Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[267 Or.App. 696] ORTEGA, P. J.
Defendant appeals his judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence obtained during a traffic stop of a car in which he was a passenger. The trial court concluded that a police officer unlawfully extended the traffic stop as to the driver but that defendant had not been seized. Defendant argues that he was illegally seized under both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Because defendant was unlawfully seized under the Fourth Amendment, and the discovery of the evidence was not sufficiently attenuated from the illegal seizure, we reverse and remand.
" A trial court's findings of historical fact are binding on appellate courts if there is constitutionally sufficient evidence in the record to support those findings. Our function is to decide whether the trial court applied legal principles correctly to those facts." State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993) (citations omitted). " The determination whether a person has been 'seized' * * * requires a fact-specific inquiry into the totality of the circumstances of the particular case." Id. at 78 (citations omitted). We review the denial of a motion to suppress for legal error. State v. Ross, 256 Or.App. 746, 747, 304 P.3d 759 (2013).
The facts, as found by the trial court and supported by the record, are as follows. During a January evening, Deputy Tillett stopped a car on I-5, in which defendant was a passenger, for traffic violations. Defendant's wife had been driving; defendant was sitting in the passenger seat and the couple's three children were seated in the back.
Tillett approached the car's passenger side and recognized defendant from discovering narcotics during a traffic stop in the same car one month earlier.
Tillett noticed that both defendant and the driver appeared nervous, even after he told the driver that he would only be issuing a warning. Tillett later testified that most people who " are nervous initially * * * tend to calm down" when informed that they will only receive a warning. When the driver continued to appear nervous, Tillett asked for her driver's license. Upon checking [267 Or.App. 697] the driver's license with dispatch, he discovered that it had been suspended. Tillett asked the driver to get out of the car to discuss the suspended license. After that discussion, he questioned her about defendant, his nervous behavior, and " if there [were] any illegal drugs or weapons in the vehicle." The driver replied that " she didn't think so but she didn't know what [defendant] had been doing." At that point, Tillett obtained the driver's consent to search the car. He then walked around to the passenger side and explained to defendant that the driver had given her consent to a search, that defendant needed to get out of the car so that the officer could search it, and that defendant was free to leave. Defendant responded that his children and wife were in the car and he was not going to leave. Tillett requested support and, after another officer arrived, Tillett searched the car, including the trunk, where he found a backpack. Defendant, standing next to the officer during the search, identified the backpack as his. Tillett asked for and received defendant's consent to search the backpack, where he found a small glass case. He obtained ...