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State v. Bliss

Court of Appeals of Oregon

February 23, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JACOB REGINALD BLISS, Defendant-Appellant.

          Submitted January 26, 2016

         Marion County Circuit Court 14C41783; D. Erik Larson, Judge pro tempore.

          Peter Gartlan, Chief Defender, and Laura E. Coffn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Peenesh H. Shah, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary: Defendant appeals a judgment of conviction for one count delivery of marijuana, ORS 475.860(2). Defendant argues, among other things, that the trial court erred when it denied his motion to suppress evidence seized from his car. Specifically, defendant contends that because the officer had stopped defendant for a traffic violation, speeding, and not in connection with a crime, the automobile exception, adopted in State v. Brown, 301 Or 268, 273-79, 721 P.2d 1357 (1986), did not authorize the officer's search of defendant's car. The state argues that, the trial court correctly decided that the automobile exception authorizes a warrantless search where an officer lawfully stops a moving car for a traffic violation, rather than a crime, but then develops probable cause that the car contains contraband or evidence of a crime during the course of the stop. Held: The trial court did not err in denying defendant's motion to suppress, because it correctly concluded that the automobile exception adopted in Brown, applies where, as here, police lawfully stop a moving car for a traffic violation and develop probable cause to search the car for contraband or evidence of criminal activity.

         Affirmed.

          LAGESEN, J.

         In State v. Brown, 301 Or 268, 273-79, 721 P.2d 1357 (1986), the Supreme Court recognized the Oregon automobile exception to the warrant requirement of Article I, section 9, of the Oregon Constitution. Under that exception, "[p]robable cause to believe that a lawfully stopped vehicle which was mobile at the time of the stop contains contraband or other crime evidence justifies an immediate warrantless search of the entire automobile for the object of the search." Id. at 277. The question in this case is whether our state's automobile exception applies where police lawfully stop a moving vehicle for a traffic violation, rather than for a crime, and then, during the course of the traffic stop, develop probable cause to believe that the vehicle contains contraband or evidence of a crime and search the car accordingly. Surprisingly, this is a question neither we nor the Supreme Court has addressed directly[1] In defendant's view, the Supreme Court's decisions in State v. Kurokawa-Lasciak, 351 Or 179, 263 P.3d 336 (2011), State v. Meharrv. 342 Or 173, 149 P.3d 1155 (2006), and State v. Kock, 302 Or 29, 725 P.2d 1285 (1986), clarify that the automobile exception does not apply under such circumstances. We disagree with that view. We conclude that the automobile exception adopted in Brown applies regardless of whether the lawful stop of a moving vehicle is for a traffic violation or for a crime, and that the court's subsequent decisions in Kurokawa-Lasciak, Meharry, and Kock do not limit the exception's applicability to only those vehicles that have been stopped for suspected involvement in criminal activity. Because the trial court reached the same conclusion in denying defendant's motion to suppress, we affirm the judgment on appeal.

         FACTUAL AND PROCEDURAL BACKGROUND

         The pertinent facts are not disputed. Trooper Davis stopped defendant for speeding after observing him driving 79 miles per hour on a highway with a posted speed limit of 60 miles per hour, and promptly smelled a strong odor of marijuana coming from the car. Davis ran the plates on defendant's car and discovered that they belonged to a different vehicle. Davis then asked defendant to explain why that was the case. While Davis talked to defendant about the plates, he became concerned that defendant was concealing a weapon in the car and asked defendant to step out of the car so that Davis could check defendant for weapons. When Davis conducted the patdown, he felt a thin glass pipe with a bulbous end in defendant's right front coat pocket. Davis asked defendant if it was a methamphetamine pipe, and defendant confirmed that it was. Davis also found a piece of wadded up plastic containing powder residue.

         Based on Davis's belief that what he had found was methamphetamine, and because in his experience "illegal drug users often carry small amounts to moderate amounts [of drugs] on their person or in their vehicles" and "often carry weapons, " he proceeded to search defendant's car for further evidence of drugs or weapons. Davis found a backpack in the trunk that smelled strongly of marijuana; in that backpack there were two large individually packaged bags of marijuana. He also found additional white powder residue that he believed to be cocaine, methamphetamine, or heroin.

         Davis's discoveries led to three charges against defendant: delivery of marijuana, ORS 475.860(2) (Count 1); possession of methamphetamine, ORS 475.894 (Count 2); and possession of four or more ounces of marijuana, ORS 475.864(3) (Count 3). Before trial, defendant moved to suppress the evidence seized from his car, the methamphet-amine-related evidence seized from his person as a result of the patdown, and his admission to Davis that the pipe in his pocket was a methamphetamine pipe. As to the evidence seized from defendant's car, defendant did not dispute that Davis had probable cause to believe the car contained contraband or evidence of a crime at the time that he searched it. However, he contended that the automobile exception did not authorize Davis's search because Davis had stopped defendant for speeding-not in connection with a crime- and that no other exception to the warrant requirement applied. The trial court rejected that argument, concluding that the automobile exception, as articulated by the Supreme Court in Brown, authorized the search of the car because Davis had lawfully stopped the car and had probable cause for the search. The court also denied defendant's motion as to defendant's statement and as to the methamphetamine pipe. Thereafter, the state dismissed Counts 2 and 3, and, following a stipulated facts trial, the trial court convicted defendant on Count 1 for delivery of marijuana.

         Defendant appeals. He raises three assignments of error, contending that the trial court erred by not suppressing the evidence from his car, the evidence from his person, and his admission regarding the methamphetamine pipe.[2]As to the evidence from his car, he argues, as he did below, that the automobile exception does not apply where an officer lawfully stops a moving car for a traffic violation rather than a crime. Accordingly, defendant contends that, because Davis stopped defendant for speeding and not for a crime, the automobile exception ...


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