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State v. Clink

Court of Appeals of Oregon

April 29, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
JACOB WILLIAM CLINK, Defendant-Appellant

Argued and Submitted November 10, 2014.

Washington County Circuit Court. C121802CR. Janelle F. Wipper, Judge.

Lindsey J. Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Sarah M. Villanueva, Assistant Attorney General.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 1188

[270 Or.App. 647] HADLOCK, J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine in violation of ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence that a police officer discovered after defendant consented to a search of the parked vehicle in which he had been sitting. Specifically, defendant argues that, before he consented to the search, the officer had unlawfully seized him without reasonable suspicion in violation of Article I, section 9, of the Oregon Constitution. We conclude that the officer's stop of defendant was justified by reasonable suspicion that defendant had been engaged in criminal activity. Accordingly, we affirm.

We review the denial of a motion to suppress for legal error and we are bound by the trial court's findings of historical facts as long as the record includes constitutionally sufficient evidence to support those findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

We describe the facts in keeping with the trial court's findings, which are undisputed. At 10:45 p.m., City of Forest Grove Police Officer Wolf was dispatched to a " drug vice call." Dispatch informed Wolf that a caller had complained that " a couple of guys were in front of [a particular address] smoking something in a newer silver Volvo" that was parked in front of a maroon truck. The informant gave dispatch his first name and telephone number.

Wolf knew that the address identified by the caller was in a residential neighborhood that was in the process of being developed and that it was not a high crime area. Wolf took the call seriously because calls from that area were usually accurate. He testified that he thought the call possibly related to " kids smoking cigarettes or smoking marijuana in the car."

When Wolf arrived, he saw the silver Volvo parked in front of the maroon truck, as the informant had described. Wolf stopped his patrol car near the truck, approximately 20 to 25 feet away from the Volvo. He then pointed his spotlight on the car; he did not activate his lights or sirens. Wolf saw two adults inside the Volvo, a male in the driver's [270 Or.App. 648] seat--defendant--and a female in the passenger seat. Wolf then saw defendant " rotate his upper body towards the passenger side of the vehicle and reach into the glove box or the center console" with " very elaborate,"

Page 1189

" very deliberate," and " furtive" movements, as though he was " concealing a large hard object versus a small pliable object ***." Concerned that defendant was concealing or reaching for a weapon, Wolf called for backup. Wolf's concern about weapons was heightened by the nature of the report that the people in the car had been " smoking something" because, he testified, " people who use drugs are often associated with firearms and stolen vehicles." During this time, Wolf also provided the Volvo's license plate to dispatch to check the plates, ...


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