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State v. Von Flue

Court of Appeals of Oregon

September 20, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JENNIFER MARIE VON FLUE, Defendant-Appellant.

         Linn County Circuit Court 14CR09323; Daniel R. Murphy, Judge.

          Argued and submitted April 26, 2016

          Erin Snyder, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment of conviction for delivery of methamphetamine and assigns error to the trial court's denial of her motion to suppress evidence resulting from a warrantless search of her vehicle. She asserts that the search was not justified by the automobile exception to the warrant requirement of Article I, section 9, of the Oregon Constitution because her vehicle was not mobile when the officer encountered it in connection with a crime. The state responds that the vehicle was mobile for purposes of the automobile exception. Held: The relevant encounter occurred when the officer observed defendant and her vehicle and developed reasonable suspicion that defendant was engaging in drug activity. Because the officer had observed defendant driving the vehicle by the time he had reasonable suspicion, it was clear that the vehicle was mobile. Furthermore, although the vehicle was not moving and defendant was standing beside it by the time the officer stopped her, the trial court reasonably could have found that defendant stopped her car to complete a drug transaction before [287 Or. 799] resuming her trip. Under the circumstances, when the officer stopped defendant, the vehicle was mobile for purposes of the automobile exception.

          EGAN, JUDGE.

         [287 Or. 800] Defendant appeals a judgment of conviction for delivery of methamphetamine, ORS 475.890, and assigns error to the trial court's denial of her motion to suppress evidence resulting from a warrantless search of her vehicle. She asserts that the search was not justified by the automobile exception to the warrant requirement of Article I, section 9, of the Oregon Constitution, because her vehicle was not mobile when the officer encountered it in connection with a crime. We conclude that the search was lawful under the automobile exception and, therefore, affirm.

         In reviewing the trial court's ruling on a motion to suppress, we view the facts consistently with the trial court's findings and decision on the motion. State v. Meharry, 342 Or. 173, 175, 149 P.3d 1155 (2006). In this case, the relevant facts are undisputed. At 12:50 a.m., on June 11, 2014, Davis, a City of Albany police officer, was patrolling Jack's Truck Stop, which is known for high levels of drug trafficking and prostitution. Davis noticed defendant's vehicle, a newer Mercedes SUV, in the parking lot; defendant, another woman, and a male bicyclist were all standing immediately outside the vehicle. The other woman and the man both appeared to Davis to be transient drug users.

         Davis turned his patrol car around and parked so that he could observe defendant and her companions. As he did so, Davis observed the male cyclist hurriedly ride away. Defendant and the other woman got into the SUV and drove over to the fuel island at Jack's. While the vehicle was at the fuel island, Davis drove his patrol car around Jack's and ran the license plates on the SUV; he learned that defendant was the SUV's registered owner and that she lived in Salem. According to Davis, Salem is the primary source of the methamphetamine and heroin sold in Albany. A criminal history check of defendant revealed that she was on supervision for unlawful delivery of methamphetamine and that she had a number of drug-related convictions.

         After a few minutes, defendant drove the SUV from the fuel island back to the same area where it had originally been parked. Defendant and the other woman got out of the vehicle and walked up to the driver's side window of another [287 Or. 801] vehicle that had pulled in and parked right next to the SUV. Davis recognized the driver of the newly arrived vehicle as Morton. Morton, who had a prior drug conviction and multiple prior contacts with police relating to drugs, did not get out of his vehicle to go into the convenience store, nor did he pull up to get gas at the fuel island.

         Davis pulled his patrol car up and parked approximately 20 feet from defendant's SUV. He got out and approached defendant and Morton, who stopped their conversation when they noticed him. Morton announced that he needed to go to Walmart, and drove away. Davis began a conversation with defendant, who admitted not knowing the name of the other woman who was with her. Davis, however, recognized the woman as someone he had met on previous occasions, and who had admitted to using metham-phetamine in the recent past. After Davis told defendant that he was concerned that she was engaged in drug activity, defendant told him that she had recently left a drug-treatment facility and that she had just been released from a jail term she had been serving for a probation violation. Davis requested, and defendant gave, consent to search her purse. Aside from some wadded up cash, Davis found nothing notable in the purse. Davis then requested defendant's consent to search her vehicle, which she refused.

         Davis, who was a canine handler, then deployed his police dog to sniff around defendant's vehicle for drugs. The dog alerted twice on defendant's SUV to the presence of drugs. Davis then conducted a warrantless search of defendant's vehicle and found large amounts of illegal drugs and cash, as well as weapons. Davis arrested defendant, and she was charged with multiple drug and weapons offenses.

         Defendant filed a pretrial motion to suppress the evidence discovered during the warrantless search of her vehicle. The state argued that the warrantless search was permitted under the automobile exception to the search warrant requirement, and the trial court agreed and denied defendant's motion. Defendant then entered a conditional no-contest plea to and, ...


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