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State v. Stevens

Court of Appeals of Oregon

June 21, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
CASSANDRA RENEE STEVENS, Defendant-Appellant.

          Submitted January 26, 2016

         Douglas County Circuit Court 12CR1676FE, 12CR1963FE; Ann Marie Simmons, Judge.

          Peter Gartlan, Chief Defender, and Brett Allin, Deputy Public Defender, Office of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and David B. Thompson, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary:

         Defendant 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.

         Affirmed.

          ORTEGA, P.J.

         Defendant seeks reversal of her conviction for unlawful possession of methamphetamine, ORS 475.894, in Case No. A156431, [1] 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.[2] 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.

         We 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. Id.

         One 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 of Jonathan.

         At that 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 Shaw."

         Klopfenstein 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 ...


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