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State v. Tapp

Court of Appeals of Oregon

March 29, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
COLBY RAY TAPP, Defendant-Appellant.

          Argued and Submitted April 28, 2016

         Harney County Circuit Court 130280CR2, W. D. Cramer, Jr., Judge.

          Brett J. Allin, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

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

         Case Summary: Defendant appeals a judgment of conviction for one count of unlawful delivery of marijuana for consideration, ORS 475.860, and one count of unlawful possession of marijuana, ORS 475.864. The state obtained the evidence to support that conviction after an officer began investigating defendant for suspected involvement in drug trafficking during the course of a traffic stop. Before trial, defendant moved to suppress that evidence on the ground that the officer unlawfully extended the traffic stop when he began investigating defendant for drug trafficking and that, as a result, Article I, section 9, required suppression of all evidence obtained after that point. The trial court denied that motion, concluding that, although the officer extended the traffic stop, he did so lawfully because, at the time, he had reasonable suspicion that defendant was engaged in drug trafficking. Defendant assigns error to the trial court's denial of his motion to suppress. Held: The trial court erred in determining that the officer had reasonable suspicion that defendant was engaged in drug trafficking at the time that he extended the traffic stop.

          LAGESEN, J.

         Defendant appeals a judgment of conviction for one count of unlawful delivery of marijuana for consideration, ORS 475.860, and one count of unlawful possession of marijuana, ORS 475.864. The state obtained the evidence against defendant, which includes both physical evidence and statements, after Oregon State Police Sergeant Williams stopped defendant for a traffic violation and then, during the course of that stop, began investigating defendant for suspected involvement in drug trafficking. Defendant moved to suppress that evidence on the ground that Williams unlawfully extended the traffic stop when he began investigating defendant for drug trafficking and that, as a result, Article I, section 9, requires suppression of all evidence obtained after that point. The trial court denied the motion, concluding that, although Williams extended the traffic stop, he did so lawfully because, at the time, he had reasonable suspicion that defendant was engaged in drug trafficking. On appeal, defendant assigns error to the trial court's denial of the motion to suppress. As framed by the parties, the question before us is whether the trial court erred in determining that Williams had reasonable suspicion that defendant was engaged in drug trafficking at the time that he extended the traffic stop. We conclude that the court erred and, accordingly, reverse and remand.

         Our review of a trial court's denial of a motion to suppress is for legal error. State v. Maciel-Figueroa, 361 Or 163, 165-66, 389 P.3d 1121 (2017). In conducting that review, "we are bound by the trial court's factual findings if there is any constitutionally sufficient evidence to support them." Id. To the extent that the trial court did not make express factual findings, we presume that the court found the facts in a manner consistent with its ultimate determination, provided that the evidence would support such findings.

         The facts pertinent to the issue on review are not disputed. Defendant was driving eastbound on U.S. Highway 20 in Harney County at around 9:30 in the morning. His friend, Peterson, was riding in the car with him and his mother, Sandra, [1] was driving behind them. While on patrol, Williams observed the two cars and thought that Sandra was following defendant's car too closely. He was going to pull Sandra over for that reason, when Sandra started weaving in her lane, at times crossing over the fog line on the right side of the lane.

         Williams concluded that Sandra was weaving deliberately, and not because she was impaired. Williams thought that Sandra was weaving either to alert defendant to Williams's presence, or to "bait" Williams into stopping her. Unrelated to this encounter, Williams had heard about baiting from other officers. Those officers had indicated that such activity may occur when multiple vehicles involved in narcotics trafficking travel together. Sometimes, one vehicle will "bait" law enforcement by committing traffic violations so that law enforcement will stop that vehicle, permitting the other vehicle to continue traveling. At the time of this encounter, however, Williams had not seen such activity himself nor received training on any such activity.

         Sandra's deliberate weaving, which might have been baiting activity, caused Williams to suspect criminal activity, although not narcotics trafficking specifically. Based on that suspicion, Williams decided that he wanted to stop the two cars to investigate further, but did not want to act alone and requested that Senior Trooper Johnson assist him in stopping both cars. Johnson was about 10 miles away and, while waiting for him to catch up, Williams continued to follow defendant and his mother, observing them for another 17 to 20 minutes over the course of 13 miles. Eventually, Williams passed Sandra and pulled in front of her so that he was driving between defendant and Sandra, which is where he was when Johnson caught up to them. Johnson stayed behind Sandra and although he observed her cross over the fog line, he did not observe any baiting activity. When defendant made a lane change without signaling, Williams alerted Johnson that he would be stopping defendant for that violation, and that Johnson should stop Sandra at the same time.

          After stopping the two cars, Williams spoke with defendant and Peterson while Johnson spoke with Sandra. Williams observed that defendant's car was messy, smelled strongly of cigarettes, and was littered with trash and energy drinks. Williams asked defendant whether the car being driven by Sandra was traveling with them, and defendant responded that it was and it was being driven by his mother. Defendant explained that they were traveling from Klamath Falls, where they had been staying with defendant's brother-in-law.

         Williams told defendant that he thought that Sandra was trying to "bait [Williams] into stopping her." Defendant appeared nervous, he avoided making eye contact, and his face was flushing. When Williams asked defendant about his nervousness, Peterson interjected and explained that defendant was nervous because his license was suspended. Williams then asked for their identification. Defendant provided an identification card and confirmed that his license was suspended. Peterson provided a "tattered and unreadable" paper license. Peterson also explained that he had been driving most of ...


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