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State v. Brock

Court of Appeals of Oregon

May 6, 2015

STATE OF OREGON, Plaintiff-Respondent,
NOLEN BRICE BROCK, Defendant-Appellant

Submitted February 25, 2015

CFH120091. Umatilla County Circuit Court. Daniel J. Hill, Judge.

Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Sarah M. Villanueva, Assistant Attorney General, filed the brief for respondent.

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


Page 614

[270 Or.App. 676] DEVORE, J.

Defendant appeals a judgment of conviction for two methamphetamine offenses. He assigns error to the trial court's denial of his motion to suppress drug-related evidence discovered in the car he was driving. He argues that the evidence was obtained in violation of his rights under Article I, section 9, of the Oregon Constitution because the automobile exception should not properly apply under the circumstances of this case.[1] 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 affirm.

The facts are undisputed. In the early morning hours of September 10, 2011, Deputy Freshner drove by two cars parked on the side of the road. Defendant's car was improperly parked facing oncoming traffic. Another man stood outside of the vehicles. Freshner pulled off the road and began running defendant's license plate with dispatch, noting that the car had 2012 registration tags. The man standing near defendant approached Freshner in his patrol car and said that they had broken down but that they were " [g]ood to go here in a second." Within a few moments, defendant and the other man separately drove away. About that time, dispatch told Freshner that the registration on defendant's car had expired in 2008.

Freshner turned his patrol car around and caught up to defendant. He verified the plate number on defendant's car and turned on his overhead lights to make a traffic stop. After defendant pulled over, Freshner determined that defendant was not the registered owner of the car and that the registered owner did not have a valid driver license. Defendant admitted that his driver license had been suspended and that he did not have any identification. Dispatch ran defendant's name and birth date to look for outstanding warrants. While waiting for dispatch's response, Freshner [270 Or.App. 677] asked defendant about the car. Defendant said that he had purchased the car that day from an unknown man in a field. He did not have a bill of sale or proof of insurance. When asked, he offered no explanation as to why the car had 2012 tags while the car's registration had expired in 2008. Freshner noticed that defendant was abnormally nervous, fidgety, and " kept trying to reach in his pants" for his colostomy bag. Defendant made multiple attempts to reach down toward the floorboard " and get something else[,]" claiming that he wanted a cigarette. Freshner believed that the car and registration were involved in a theft-related offense, such as theft by receiving or theft of mislaid property.

Page 615

After about 10 minutes, dispatch reported that defendant was wanted on an outstanding warrant. When Freshner first attempted to arrest defendant, defendant " made a lunge back towards the car" requiring " physical force to put him against the car to get him in handcuffs." After securing defendant, Freshner searched the car and found " a dealer amount" of methamphetamine under the driver's seat.[2]

Defendant was charged with unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894.[3] He moved to suppress the drug-related evidence. In his opening statement at a suppression hearing, defendant, through counsel, stated that his argument would focus on whether Freshner had probable cause to search. Freshner testified that individuals falsify tags on their vehicles for several reasons, including instances in which individuals have " a stolen vehicle and they're trying to conceal the identity of the true registration." In his closing argument, defense counsel reemphasized that the evidence should be suppressed because it was discovered during a search that was not supported by probable cause. The state contended that the search of the car was lawful because Freshner " had probable cause to search the vehicle pursuant to the automobile exception for evidence of *** [the] crime."

[270 Or.App. 678] The trial court denied the motion to suppress. In a letter opinion, the court determined that Freshner " had probable cause to search the vehicle for evidence of the crime of unlawful use of a motor vehicle." The court referred to the car's mobility under the automobile exception to the warrant requirement, concluding that " the vehicle was constructively mobile and subject to search without a warrant." The court did not, however, indicate which of Freshner's contacts with defendant, if any, would support mobility at the time it was first encountered for the purpose of the automobile exception. See State v. Brown, 301 Or. 268, 276, 721 P.2d 1357 (1986); see also State v. Andersen, 269 ...

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