Submitted January 26, 2016
County Circuit Court 12CR1676FE, 12CR1963FE; Ann Marie
Gartlan, Chief Defender, and Brett Allin, Deputy Public
Defender, Office of Public Defense Services, fled the brief
F. Rosenblum, Attorney General, Paul L. Smith, Deputy
Solicitor General, and David B. Thompson, Assistant Attorney
General, fled the brief for respondent.
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
challenges the trial court's denial of her motion to
suppress evidence found during a search of her backpack.
First, she argues that her consent to search the backpack was
coerced by the requesting offcer because the offcer
implicitly conveyed to her that her parole offcer was
requesting the search, which left defendant facing possible
sanctions if she refused to consent. Second, she argues that
even if she voluntarily consented to the search, her consent
was invalid because the police seized her without reasonable
suspicion and then exploited that illegal seizure to obtain
her consent. Held: First, defendant voluntarily
consented to the search because, even if she believed that
her parole offcer was directing the search, the surrounding
circumstances were not so coercive as to preclude defendant
from refusing to consent. Second, defendant was not seized at
the time the offcer requested her consent to search because
the offcer's questions and requests for information were
insuffcient to constitute a show of authority that would give
rise to a seizure in the constitutional sense.
seeks reversal of her conviction for unlawful possession of
methamphetamine, ORS 475.894, in Case No. A156431,
assigning error to the trial court's denial of her motion
to suppress. She argues that a search of her backpack
violated Article I, section 9, of the Oregon Constitution
because her consent to the search was coerced. In particular,
she asserts that the requesting officer implied that
defendant's parole officer was directing the search
request and that she believed that failure to consent would
subject her to sanctions for violating her parole.
Alternatively, defendant argues that, even if her consent was
voluntary, it was invalid because it was the product of
illegal police conduct- specifically, that the police
violated Article I, section 9, by seizing her without
reasonable suspicion and then exploiting that illegal seizure
to obtain her consent. The state counters that, in the
totality of the circumstances, defendant's consent to the
search was a "product of her free will." Moreover,
the state argues that there was no illegal seizure of
defendant because she was not seized at the time that she
consented to the search. We agree with the state and affirm.
review the trial court's denial of a motion to suppress
for legal error and are bound by the trial court's
factual findings if there is constitutionally sufficient
evidence in the record to support them. State v.
Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). If the trial
court did not make express factual findings and there is
evidence from which the trial court could have found a fact
in more than one way, we presume that the trial court decided
that fact consistently with its ultimate conclusion.
night, Officer Klopfenstein stopped a mini-van on the side of
a public highway for "having a headlight out." Four
people were in the minivan-the driver, a male passenger in
the front passenger seat, a male passenger [286 Or.App. 307]
in the rear passenger's side seat, and defendant, who was
seated in the rear driver's side seat. The driver
indicated to Klopfenstein that he had just met his passengers
and was giving them a ride. During that conversation,
Klopfenstein observed that the rear male passenger was acting
"odd" and "increasingly intoxicated."
Klopfenstein acquired the driver's
"information" and returned to his patrol car where
he "ran" that information. While the information
was "still running, " Klopfenstein returned to the
minivan and asked the rear male passenger for identification.
The passenger indicated that he did not have identification
on him and told Klopfenstein that his name was "Jonathan
Shaw." When Klopfenstein asked Shaw to spell his first
name, he responded with various obviously incorrect spellings
point, Klopfenstein turned his attention to defendant. He
asked for her name and, after she gave it to him, she
"volunteered that she was on parole." He then asked
defendant if she knew the rear male passenger; she stated
that she had known him for a couple of years and that
"he's always told [me] his name was Jonathan
returned to his patrol car and "started running the
people that I had learned about in the car as well, and they
all came back with no wants or warrants and I * * * confirmed
that [defendant] was on parole through dispatch."
However, when Klopfenstein viewed a DMV photograph of
"Jonathan Shaw, " it was clear to him that the rear
male passenger was not the man pictured in the photograph. At
some point during this time, Officer Cordell arrived ...