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State v. Kimmons

Court of Appeals of Oregon

June 10, 2015

STATE OF OREGON, Plaintiff-Respondent,
JASMINE SHREE KIMMONS, Defendant-Appellant

Argued and Submitted: July 30, 2013.

Multnomah County Circuit Court. 101253979. Stephen K. Bushong, Judge.

Laura E. Coffin, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jennifer S. Lloyd, Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General.

Before Nakamoto, Presiding Judge, and Haselton, Chief Judge, and Egan, Judge.[*]


Page 69

[271 Or.App. 593] HASELTON, C. J.

Defendant appeals a judgment of conviction for two counts of unlawful possession of a firearm and two counts of possession of a loaded firearm in public. Defendant was charged after the police, having stopped her on suspicion of trespassing by remaining in a privately owned parking lot without paying to park, obtained consent to search her car and found two handguns in its locked glove box. On appeal, defendant asserts, inter alia, that the trial court erred in denying her motion to suppress the handguns and other evidence, because that evidence was the product of an extension of the stop, which constituted an unlawful seizure of defendant's person. In response to that challenge, the state asserts only that defendant was not seized unlawfully. For the reasons explained below, we agree with defendant that the police unlawfully extended the stop to investigate unrelated matters. Accordingly, we conclude that the trial court erred in denying the motion to suppress, and we reverse and remand.[1]

We review the trial court's denial of defendant's motion to suppress for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In doing so, we are bound by the trial court's express and implicit factual findings so long as those findings are supported by sufficient evidence in the record. Id. We state the material facts, which are undisputed, in accordance with that standard.[2]

On the night of December 24, 2010, members of the Portland Police Department's Gang Enforcement Team were monitoring the Old Town neighborhood in downtown Portland. They learned that a number of gang members and associates had gathered at a nightclub for a birthday party. The police were concerned that the situation might [271 Or.App. 594] become violent; that concern was based on their knowledge that gang members often carry weapons on their persons or stow them in cars, as well as a history of gang activity in the area, including the fact that there had been a fatal gang-related shooting three months before.

Officers observed several " known gang members" leave the nightclub and head toward a nearby parking lot, where signs directed drivers to pay to park. The officers, aware that the parking lot had previously been the scene of " several large fights" and shootings, thought that the group might be retrieving weapons from a car.

The group got into a silver Buick that was parked in the lot. After sitting in the car for a few minutes, they got out and returned to the nightclub. The officers noted that the silver Buick remained in the parking lot, but

Page 70

did not appear to display a ticket stub showing that its driver had paid to park in the lot.

A group of four officers then approached the car. Defendant, its sole occupant, was in the driver's seat. Officer Asheim asked defendant what she was doing there and whether she had a ticket to park in the lot, and defendant responded that she was waiting for a girlfriend to come back from the nightclub and admitted that she had not paid for parking. Asheim asked defendant for her driver's license and insurance. Defendant produced her license but not proof of insurance, although she maintained that the car was insured.

Asheim then mentioned the gang presence in the area and told defendant that the officers had just watched several " known gang members" get in and out of her car. Defendant explained that the group had gotten into her car to smoke marijuana but had left because they lacked the necessary paraphernalia. She also said that one of the men was her boyfriend and ...

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