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State v. Reich

Court of Appeals of Oregon

August 16, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
RUSSELL MARTIN REICH, Defendant-Appellant.

          Argued and submitted February 9, 2016

          Deschutes County Circuit Court 13FE0613 Alta Jean Brady, Judge.

          Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Dustin Buehler, 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 Tookey, Presiding Judge, and Egan, Judge, and Sercombe, Senior Judge.

         Case Summary:

         Defendant appeals a conviction for unlawful possession of methamphetamine, ORS 475.894. Defendant assigns error to the trial court's denial of his motion to suppress evidence discovered following a traffic stop. Defendant argues that the stop was unlawfully extended because it did not occur during an "unavoidable lull" in the investigation of the traffic violation, nor was it justified by reasonable suspicion of criminal conduct.

         Held:

         The request for consent to search defendant's person did not take place during an unavoidable lull in the traffic stop, and the officers' belief that defendant possessed a controlled substance was not objectively reasonable under the totality of the circumstances, therefore, the request to search defendant's person was not justified by reasonable suspicion.

         Reversed and remanded.

         

         [287 Or. 293] SERCOMBE, S. J.

         Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, entered after a conditional guilty plea. Defendant assigns error to the trial court's denial of his motion to suppress evidence discovered following a traffic stop. He contends that the traffic stop was extended by a request to search his person and that the extension was unlawful because it did not occur during an "unavoidable lull" in the investigation of the traffic violation, nor was it justified by reasonable suspicion of criminal conduct. We agree with defendant's contentions and, therefore, reverse and remand.

         Defendant was indicted on one count of unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant filed a motion to suppress the evidence found on his person and all statements he made during and after the search of his person. After an evidentiary hearing, the trial court denied the motion. In reviewing that determination for legal error, we are bound by the trial court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Maciel-Figueroa, 361 Or. 163, 165-66, 389 P.3d 1121 (2017). "When the trial court did not make express findings and there is evidence from which the trial court could have found a fact in more than one way, we will presume that the trial court decided the facts consistently with the trial court's ultimate conclusion." Id. at 166. We state the facts in accordance with those standards.

         Officers Emerson and Smith were on patrol together. Emerson saw a pickup truck that he recognized from a previous stop in which he had arrested the owner, Curtis, for possession of methamphetamine. Emerson knew that Curtis had a suspended driver's license. Smith noticed that the pickup was speeding, and the officers initiated a traffic stop.

         Emerson approached the passenger side window of the pickup; Curtis was in the passenger seat. Smith approached the driver side window and spoke to defendant, who was the driver. Defendant was cooperative. He admitted that he was speeding and provided his driver's license. Smith asked for the vehicle's registration and insurance [287 Or. 294] information, to which Curtis replied that the pickup was his, and began looking for the documents. Curtis handed Smith the registration, which showed that he was the registered owner, and he continued to look in the glove box for the insurance information. Emerson testified that he always asks for license, registration, and proof of insurance for every traffic stop and agreed that gathering insurance information is part of "routine traffic ticket processing."

         While Curtis was looking for proof of insurance, Smith asked defendant whether there was anything illegal in the pickup. Defendant became nervous, looked away, acted like he did not hear the question, and did not respond. Defendant went from making eye contact with Smith to almost solely staring at the glove compartment that Curtis was looking through. Smith asked defendant a second time, and he did not respond. Smith continued to ask the question, and defendant eventually said that the pickup did not belong to him and indicated that Smith should ask Curtis.

         Emerson testified that defendant's "demeanor changed immediately" and "drastically" after Smith asked whether there was anything illegal in the vehicle. He stated:

"[Smith] asked him a second time if there was anything illegal in the vehicle, and he again didn't respond. And it was very clear he could understand what she was asking. So, for me, *** watching that and with a substantial experience in, in drug detection, I know that ...

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