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State v. Paskar

Court of Appeals of Oregon

June 17, 2015

STATE OF OREGON, Plaintiff-Appellant,
v.
GREGORY PASKAR, Defendant-Respondent

Argued and Submitted, McKay High School, Salem: February 24, 2015.

Page 1280

Lincoln County Circuit Court. 122974. Thomas O. Branford, Judge.

Anna M. Joyce, Solicitor General, argued the cause for appellant. With her on the brief was Ellen F. Rosenblum, Attorney General.

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

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

OPINION

Page 1281

[271 Or.App. 828] TOOKEY, J.

In this criminal case, one of three related cases that we decide today, see State v. Anton, 271 Or.App. 860, 353 P.3d 596 (2015); State v. Ene, 271 Or.App. 858, 353 P.3d 597 (2015), the state appeals the trial court's order granting defendant's pretrial motion to suppress evidence. ORS 138.060(1)(c). State police troopers discovered the evidence during an encounter with defendant and his codefendants, Anton and Ene, that took place 28 miles offshore from Newport while the three men were fishing. We agree with the trial court that the troopers seized defendant in violation of Article I, section 9, of the Oregon Constitution when they announced that they would inspect all three codefendants' halibut tags. Accordingly, we affirm.

We are bound by the trial court's findings of fact as long as there is constitutionally sufficient evidence to support them. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). In the absence of express factual findings, we presume that the trial court decided the disputed facts in keeping with its ultimate conclusion. Id. On appeal, " [o]ur function is to decide whether the trial court applied legal principles correctly to those facts." Id. The trial court made extensive findings of fact, and we draw the following facts from those findings and undisputed facts in the record.

On August 18, 2012, Oregon State Police troopers Canfield and Van Meter were on patrol 28 miles offshore in an all-depth halibut

Page 1282

fishery.[1] They were in a Zodiac vessel that had no police insignia but did have blue lights and a siren. The troopers were in uniform and wearing their badges.

There were many boats in the area that the troopers were patrolling, which is known as the chicken ranch. The first boat that the troopers encountered was a 22-foot open boat of which defendant, Anton, and Ene were the only occupants. As the officers first approached the boat, defendant's line was in the water, and he was landing a fish. The troopers waited at a distance of 10 to 15 yards until the fish [271 Or.App. 829] was landed. They observed that it was a yellow-eye rockfish, a species prohibited to keep in that fishery.

Defendant landed and released the yellow-eye rockfish without removing it from the water. A fish that is brought up from several hundred feet below the surface and then released at the surface will die. Canfield testified that the State Department of Fish and Wildlife has recently made devices available to anglers that increase a fish's chances of survival after it is caught and released; use of those devices is not required, but an angler must release a prohibited species unharmed. Defendant did not use any such device to increase the fish's chances of survival. As a result, after defendant released the fish, it floated belly-up at the surface. At that point, in Canfield's view, defendant, Anton, and Ene were no longer free to leave.

After defendant released the fish and it floated away, the troopers approached to within five to 10 feet of the boat and asked defendant, Anton, and Ene if they had caught any fish that day. Anton responded that they had caught three halibut. Canfield testified that halibut tags must be validated immediately after a halibut is caught.

Canfield " announced that the troopers would approach to inspect the halibut tags." He said, " we'd like to look at your tags; please get them out for us," or something very similar. His statement " had the tone and content of a command * * *, as opposed to being a mere question to the men." The purpose of the inspection " was to make sure that [the tags] had been validated, in other words, to make sure that the men had not committed a crime by failing to properly record the catch." The troopers pulled closer and grabbed the boat.

Defendant, Anton, and Ene gave their tags to the troopers, who observed that the tags had not been validated. Canfield then asked to inspect the fish, and one of the three men opened a cooler on the deck. In the cooler, Canfield saw halibut as well as two prohibited species--canary rockfish and ling cod.

The troopers were relaxed and conversational throughout the encounter. When they grabbed the boat, [271 Or.App. 830] their primary purpose was " to check the halibut tags and see what fish had been landed." Canfield could not remember whether they eventually warned the men about defendant's failure to release the yellow-eye rockfish unharmed. Van Meter testified that, at some point ...


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