Argued and submitted April 8, 2015, Madras High School, Madras.
Washington County Circuit Court C131541CR, C122328CR; A155361 (Control), A155362 Janelle F. Wipper, Judge.
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
Case Summary: Defendant appeals a judgment of conviction for unlawful possession of methamphetamine and unlawful possession of heroin, and a judgment extending his probation in another case based on the new criminal conduct. On appeal, he challenges the trial court's denial of his motion to suppress evidence. Defendant argues that the police offcer's search of his backpack and its contents exceeded the scope of defendant's consent to search his car. Held: Given the totality of the circumstances-including the wording of the offcer's request to search and that a reasonable person in defendant's position would have understood that the offcer intended to search for evidence of drug crimes-the offcer did not exceed the scope of defendant's consent by searching his closed backpack.
In this consolidated criminal appeal, defendant appeals a judgment of conviction for unlawful possession of methamphetamine in violation of ORS 475.894 and for unlawful possession of heroin in violation of ORS 475.854 (Washington County case number C131541CR), and a judgment extending defendant's probation in another case, based on the new criminal conduct (Washington County case number C122328CR). In a single assignment of error, defendant challenges the trial court's denial of his motion to suppress evidence that a police officer discovered after defendant consented to a search of his car. Specifically, defendant argues that the officer's search exceeded the scope of defendant's consent in violation of Article I, section 9, of the Oregon Constitution. We conclude that the officer did not exceed the scope of defendant's consent by searching his closed backpack. Accordingly, we affirm.
We review whether a search exceeded the scope of an individual's voluntary consent for errors of law. State v. Arroyo-Sotelo, 131 Or.App. 290, 294, 884 P.2d 901 (1994). We are bound by the trial court's findings of facts if the record includes constitutionally sufficient evidence to support them. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). If the court did not make express findings of fact on a pertinent issue and the record includes evidence from which those facts could be decided more than one way, we presume that the court found the facts in a manner consistent with its ultimate conclusion. Id. We state the facts in light of those standards.
At approximately 1:00 p.m., Washington County Deputy Povolny pulled defendant over because the registration sticker on his license plate was expired. As part of the traffic stop, Povolny had dispatch run defendant's driver's license and learned that defendant was on probation for drug offenses. Povolny decided not to cite defendant for the traffic violation, but told him to check in with his probation officer concerning the traffic stop. Povolny did not inform defendant that he knew why defendant was on probation.
After telling defendant and his passenger that they were free to leave, Povolny casually asked defendant if he could "search" his car. Povolny did not specify what he wanted to search for. Defendant said that would be "fine, " and he and his passenger got out of the car. A few minutes later, the passenger left.
Povolny reiterated "a couple more times" that defendant was "free to go, " and then began to search defendant's car, starting at the driver's door. At that time, defendant stood a close distance behind his vehicle near the curb. During the search, Povolny found a closed backpack on the backseat. Before opening the backpack, Povolny showed it to defendant and asked if it, and its contents, belonged to defendant. Defendant said that the backpack and its contents were his; he also mentioned that Povolny would find a marijuana pipe in the back seat. Povolny thanked defendant for his honesty and told him that he would not issue him a citation for the marijuana pipe. With defendant in "clear view, " Povolny searched the backpack and found a small drawstring bag inside that contained drugs and drug paraphernalia. Povolny asked defendant what was in the bag and defendant replied, "speed." Povolny clarified with defendant that "speed" was methamphetamine. At no time did defendant revoke or narrow the scope of his consent to search his car.
Defendant filed a pretrial motion to suppress the evidence that Povolny had discovered inside his backpack, arguing that the deputy's search of the backpack was unlawful because it exceeded the scope of defendant's consent to search the car. The trial court denied that motion. The court found that defendant gave Povolny "broad consent" to search his car without any "qualifications." The court further found that defendant was located "approximately a foot away" from Povolny during the search and that "if he so chose, he could have at any point retracted his consent to search. And he didn't." Ultimately, the court concluded that "[t]he fact that the officer did not specifically say that this was a search for weapons, drugs, et cetera, does not negate the consent in this case."
Defendant then waived his right to a jury trial and proceeded to a stipulated facts trial. The trial court convicted defendant of unlawful possession of methamphetamine and unlawful possession of heroin (Washington County case number C131541CR). The court also extended defendant's ...