Submitted: November 26, 2014.
120230832. Multnomah County Circuit Court. Richard C. Baldwin, Judge.
Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief 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 Garrett, Judge, and Edmonds, Senior Judge.
[270 Or.App. 334] GARRETT, J.
Defendant appeals his judgment of conviction for one count of compelling prostitution, ORS 167.017, and four counts of promoting prostitution, ORS 167.012. Defendant assigns error to the trial court's denial of his motion to suppress evidence discovered in defendant's vehicle, arguing that the vehicle was unlawfully seized without a warrant. Because we conclude that the admission of the challenged evidence, even if erroneous, was harmless, we affirm.
Portland police investigated defendant on prostitution-related charges over the course of several weeks. Police obtained evidence against defendant on several different occasions. The details of what evidence was obtained at what times are material to our analysis and are, therefore, summarized below.
Over the course of two evenings in January and February 2012, Officer Ruppel observed a woman, Moss, walking along a " high-vice" stretch of 82nd Avenue and exhibiting behavior consistent with prostitution. On the second evening, Ruppel saw Moss borrow a cell phone fro an individual in a parking lot and make a call. Shortly after-ward, defendant arrived in a white Chevrolet, Moss got in the car, and they left. Another officer stopped defendant for a traffic violation, and Ruppel soon arrived at the location of the stop. Ruppel, who had past experience with Moss, advised her of her Miranda rights and proceeded to question her about her suspected prostitution activities. Moss denied having any " dates" and said that defendant was her boyfriend, not her pimp, although her body language caused Ruppel to believe that defendant was, in fact, her pimp.
Ruppel next spoke to defendant, who denied that he was Moss's boyfriend, denied having a sexual relationship with Moss, and denied knowing that she was a prostitute. Defendant allowed Ruppel to look at the text message history on defendant's cell phone. Ruppel observed " tons of text conversations" that were associated only with other phone numbers, not names. Some of the messages were suggestive, to Ruppel, of prostitution activity. For example, one message said, " Are you going to post for me or do I need to post?" [270 Or.App. 335] Another read, " I didn't make any $$$," and another referred to defendant as " daddy." According to Ruppel's trial testimony, prostitutes and pimps commonly speak of " posting" advertisements online. He also testified that, in his experience, more than 95 percent of prostitutes refer to their pimps as " daddy." As Ruppel expressed interest in some of the messages, defendant began pressing buttons on the phone. Ruppel, concerned that defendant was attempting to destroy
evidence, seized the phone so that he could apply for a search warrant. He then released defendant and Moss.
Portland police continued to investigate defendant's suspected prostitution activities over the next several weeks. They interviewed Moss and another woman, Honeycutt. Both women told police that defendant was their pimp and that defendant drove them to " dates" in his white Chevrolet.
About two weeks after Ruppel stopped defendant, another Portland police officer, Edwards, stopped defendant for another traffic violation. Defendant was driving the white Chevrolet. A woman, Casanova, was in the passenger seat. During a check of defendant's and Casanova's identification, Edwards learned that Ruppel had an open investigation into defendant on suspicion of his involvement in prostitution-related activities. After receiving defendant's consent to search the vehicle, Edwards observed an unopened box of condoms, a number of hotel room keys, and around 25 to 30 prepaid Visa gift cards (gift cards). Edwards issued a traffic citation and released defendant and Casanova.
Two weeks after the Edwards stop, police stopped defendant for another traffic violation. By then, an arrest warrant had been issued for defendant on the charge of promoting prostitution. The officer arrested defendant on the outstanding warrant, but, for reasons that are unclear from the record, did not search or seize defendant's Chevrolet and left it parked on the side of the street. One or two days later, Ruppel noticed the traffic stop report in a police database, ascertained the Chevrolet's location, and drove out to the public street where it was still parked. Ruppel was aware at that time that Edwards had observed condoms, hotel room keys, and gift cards in the Chevrolet during the stop ...