Argued and Submitted January 28, 2015.
123912FE. Jackson County Circuit Court. Benjamin M. Bloom, Judge.
Ingrid A. MacFarlane, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Pamela J. Walsh, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[270 Or.App. 320] DEVORE, J.
In this criminal case, defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court's denial of her motion to suppress drug evidence. Relying on Article I, section 9, of the Oregon Constitution, defendant argues that the evidence should have been suppressed because an officer unlawfully extended the stop and that the state failed to demonstrate that the drug evidence did not derive from that illegality. We review the trial court's denial of defendant's motion to suppress for legal error and are bound by the trial court's express and implicit findings of fact, if there is sufficient evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We reverse and remand.
Corporal Furst stopped defendant for not properly wearing a seatbelt while driving. Defendant did not have her license, registration, or insurance information. She admitted that her insurance had expired and that she was on probation. Furst decided to impound and inventory the vehicle. He told defendant that, called for a cover officer and a tow truck, and began filling in a tow form. He ran database searches to confirm defendant's
identity based on her name and birth date. Furst told defendant and her passenger to get out of the vehicle so that he could conduct an inventory. Defendant agreed, stepping out of the vehicle, but, when Furst asked consent to search defendant's purse " for weapons or drugs," she declined. Defendant set her purse down, opened and closed it quickly, and said that she did not " have anything in there." Furst saw a box cutter, and he took it from the purse just before she closed it. He told defendant that she would " have to separate herself from the purse," because he did not know if there were weapons in it.
Furst returned to his patrol car and called defendant's probation officer, Lupes. He told Lupes that defendant had refused to give consent to search her purse and that he thought that she was concealing something unlawful. [270 Or.App. 321] Lupes suggested that Furst question defendant about her drug use. In the course of the suggested questioning, defendant admitted that she had some marijuana in her purse. Still on the line and having overheard defendant, Lupes asked Furst " to invoke the search condition of [defendant's] probation" requiring her either to consent to a search or to decline and violate a condition of her probation. In response, defendant gave consent to search her purse. Furst found a methamphetamine pipe, methamphetamine residue, and marijuana. He arrested defendant, and she was charged with unlawful possession of methamphetamine.
At a hearing on defendant's motion to suppress evidence, Furst testified about standard impounding procedure. The procedure required completing a " tow report," which provided places for the signatures of the vehicle owner, the tow truck driver, the officer, and the property records clerk. A box on the form was available to mark in lieu of a driver's signature if the driver were in custody, as well as a checkbox to indicate if the driver had refused to sign. Furst did not believe that defendant was free to leave until the conclusion of the inventory.
Among other things, defendant argued that Furst could not be found to have sought defendant's consent during an unavoidable lull in the investigation, and that, during the stop, the officer had not developed reasonable suspicion to suspect a crime, and, as a consequence, the evidence found in her purse was the product of an unlawfully extended stop. Pointing to the tow form, defendant contended that defendant should have been given the opportunity to refuse to sign the form and to have left earlier. Defendant argued that, because " the officer *** [had] gathered everything he need[ed] to complete his investigation," he was not entitled to extend the stop while he was waiting for the tow truck to arrive. That is, defendant was not " lawfully required to stay and wait around for [the tow] form."
The state responded that the impound process required defendant's presence such that the stop was not unlawfully extended and that, in any event, defendant had to consent to searches due to the ...