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State v. Ferguson

Court of Appeals of Oregon

March 25, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
TONYA A. FERGUSON, Defendant-Appellant

Submitted April 29, 2014.

Page 1243

Josephine County Circuit Court 11CR0580. Thomas M. Hull, Judge.

Peter Gartlan, Chief Defender, and David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

Page 1244

[270 Or.App. 59] DEVORE, J.

Defendant entered a conditional guilty plea for unlawful possession of methamphetamine, ORS 475.894.[1] She appeals the judgment of conviction, assigning error to the trial court's denial of her motion to suppress evidence. She argues that the stop of her van was unlawfully extended, that the police did not have reasonable suspicion to investigate defendant for drug possession, and that her consent to search the van was an impermissible exploitation of an unlawful seizure of defendant--all in violation of Article I, section 9, of the Oregon Constitution. We review for legal error and are " bound by the trial court's findings of historical fact if evidence supports them." State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991). Where a trial court has not made an express finding, we presume that the court found facts consistent with its ultimate conclusion. Id. at 127; State v. Watson, 353 Or. 768, 769, 305 P.3d 94 (2013). We affirm.

The relevant facts are undisputed, except where otherwise noted. Corporal Hamilton saw defendant driving a van without a front or rear license plate, which is a traffic violation. ORS 803.655. He signaled to her to stop at about 1:02 a.m. The encounter was recorded by " I-COP," an in-car camera system in Hamilton's patrol car.[2] When he approached the van, Hamilton noticed a temporary permit attached to the bottom of the driver's side windshield, and he told her that the permit was improperly displayed. Looking closely, Hamilton saw that the permit was expired and had been altered to make the date appear current. Defendant was unable to produce a driver license, and, when pressed, she offered a medical card as means of identification. Defendant told Hamilton that the van belonged to her sister and that she was driving it back to her sister after the van had broken down and had been fixed. She could not offer proof of insurance or vehicle registration.[3] Defendant added that her sister had driven the van from Texas and [270 Or.App. 60] had moved to Oregon a few months ago. Defendant seemed " fidgety." Her appearance was consistent with that of a person who had used a central nervous system stimulant such as methamphetamine, and her behavior was inconsistent with the medications listed on the medical card that she had offered as identification.

At 1:06 a.m., Hamilton contacted dispatch to confirm defendant's identity. At about 1:07 a.m., Hamilton asked dispatch to run the van's VIN number. Within a few minutes, dispatch reported that no matching records could be found in a western-state database. At 1:09 a.m., Hamilton asked dispatch to recheck the VIN number in a Texas database. He believed that the van was uninsured and suspected that it could have been stolen, because the VIN did not match the first database search or insurance records. By this time, Hamilton intended to impound the van.

Hamilton sought consent to search defendant, her purse, and the van. Defendant initially refused to consent to a search of the van and her purse, but she consented to a search of her person.[4] That search did not reveal any evidence of illegality. At about 1:13 a.m., the following conversation ensued, during which defendant consented to a search of the van:

Page 1245

" [Hamilton]: *** So, now I searched you. Can I search ...

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