Argued and Submitted June 17, 2014
Washington County Circuit Court. C120264CR. Steven L. Price, Senior Judge.
Meredith Allen, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs 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 DeVore, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.
[268 Or.App. 689] GARRETT, J.
Defendant appeals his judgment of conviction for one count of manufacturing marijuana, ORS 475.856; one count of delivery of marijuana, ORS 475.860(2)(a); and one count of possession of marijuana, ORS 475.864. He assigns error to the trial court's denial of his motion to suppress, arguing that seizures of his person and his backpack were unlawful, and that evidence obtained during those seizures must be suppressed because it derived from those unlawful seizures. We agree with defendant, and we reverse and remand.
Officer Monico encountered, at night, a disabled car in the middle of a busy street in Cornelius. Monico, who was driving a marked police vehicle, parked behind the disabled car and activated his police lights. Monico saw that the driver's side door was open and that the driver's legs were hanging out of the door. Another man, who apparently had pulled over to assist, was helping push the car to the side of the road. Three passengers were inside, including defendant, who was in the back seat. As Monico got out of his vehicle and called out to the driver to inquire about the problem, the driver stood up outside of the car, looked at Monico, and reached back into the car toward the floorboard. Monico later testified that he was concerned that the driver was reaching for a weapon. Monico drew his gun and told the driver to not reach for anything under the seat, to put his hands on his head, and to step away from the car. Monico also ordered the three passengers, who were still seated inside of the car, to put their hands on their heads and to not lower their hands. Monico told the driver and passengers that he would " shoot them" if they moved. Monico called for backup, performed a patdown
search on the driver, and directed him to sit on the curb.
Monico noticed the " overwhelming" odor of unburned marijuana emerging from the car. He asked the passengers where the marijuana was located and told them that he " wanted it." The two passengers in the back seat--defendant and Birdsong--" dropped their heads" and glanced toward a backpack on the floor. After a backup officer, Watts, arrived on the scene, Monico told the passengers to get out of the car and sit on the curb. He then requested identification from each of them and conducted patdown searches of their persons.
[268 Or.App. 690] Monico searched the car and found a " turn signal post" under the seat where the driver had been reaching. He also found knives near the backpack. Monico removed the backpack from the car, placed it on the trunk, and asked if anyone wanted " to claim" the backpack and if he could search it. The driver replied, " Go ahead, it's not mine." The front-seat passenger denied ownership. For several seconds, neither defendant nor Birdsong said anything. Birdsong then said the backpack was his, in response to which Monico asked if the backpack contained marijuana. Birdsong said that it did contain marijuana, and that the marijuana inside belonged to both of them. Monico asked if he could search the backpack, and Birdsong and defendant consented to a search.
Monico found 12 bags of marijuana totaling 37.82 grams. Monico read defendant his Miranda rights and then questioned him about the marijuana. Defendant made incriminating statements, including that he and Birdsong had planned to sell the bags of marijuana at a party. Defendant and the others were released at the scene because Monico had to respond to another call. Defendant was later charged with one count of manufacturing marijuana, ORS 475.856; one count of delivery of marijuana, ORS 475.860(2)(a); and one count of possession of marijuana, ORS 475.864.
Defendant filed a motion to suppress evidence, including the backpack and its contents, obtained as a result of a " warrantless" search. He argued that he had been unlawfully stopped when Monico told him to put his hands on his head, and that the ensuing search was therefore illegal. The state responded that Monico had approached the car lawfully to investigate traffic infractions and that Monico's orders to the driver and passengers were justified by officer safety concerns. The state argued further that the smell of marijuana gave Monico probable cause to expand the scope of the traffic stop to investigate possible criminal conduct.
[268 Or.App. 691] The trial court denied defendant's motion to suppress. In doing so, the court addressed both the initial encounter and the subsequent search that led to the discovery of the marijuana:
" The original encounter, the Camaro's in the traffic lane of a main thoroughfare, Baseline. It's dead in the water, just being pushed very slowly ...