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State v. Urig

Court of Appeals of Oregon

January 4, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DALLAS URIG, Defendant-Appellant.

          Argued and Submitted September 27, 2017

         Washington County Circuit Court C151351CR; Andrew Erwin, Judge.

          Anne Fujita Munsey, 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.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

         Case Summary: Defendant challenges his conviction for seven counts of various drug-related offenses. He assigns error to the trial court's denial of his motion to suppress evidence obtained during what he contends was an unlawful extension of a traffic stop. Defendant concedes that he was lawfully stopped for a noncriminal traffic violation. However, defendant argues that the officer violated Article I, section 9, of the Oregon Constitution by calling his probation officer rather than processing the citation because that call was based on a notation on his record that was a constitutionally insufficient basis to extend the stop. According to defendant, because that call extended the stop, the officer was able to obtain his consent to search his car and discover incriminating evidence that was used against him at trial. Held: The trial court did not err. The Court of Appeals need not resolve defendant's arguments under Article I, section 9, because they were predicated on the assumption that the traffic stop was actually extended. The trial court implicitly found that the stop was not extended, and there was sufficient evidence to support that finding.

         Affirmed.

         [289 Or.App. 694] ORTEGA, P. J.

         Defendant challenges his conviction for unlawful delivery of heroin and unlawful possession of heroin, meth-amphetamine, and controlled substances, ORS 475.850; ORS 475.854; ORS 475.894; ORS 475.752(3) and (3)(c). He assigns error to the trial court's denial of his motion to suppress evidence obtained during what he contends was an unlawful extension of a traffic stop to call his probation officer. We conclude that, because the call to defendant's probation officer did not actually delay the processing of the traffic citation at issue, the stop was not unlawfully extended, and the trial court did not err in denying defendant's motion. Accordingly, we affirm.

         We review the denial of a motion to suppress for legal error and are bound by the trial court's express factual findings if evidence in the record supports them. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). Accordingly, we state the facts consistently with the trial court's factual findings.

         Officer Haugen stopped defendant in Washington County for failing to signal when changing lanes, a minor traffic offense. When Haugen reached defendant's car, he noticed that defendant and his passenger were nervous and pale, and that both had sores on their arms consistent with "people who use heroin." Haugen asked defendant for his license, registration, and insurance information and then contacted dispatch to run it through the law enforcement database system, as is standard practice. Haugen testified that dispatch performed a records check, which included a review of defendant's driving status and a warrant inquiry, and informed Haugen that defendant was on post-prison supervision out of Deschutes County and that there was a note in his record directing that" [a]ny law enforcement contact with this offender, please call" probation officer Frank Dietsch. Haugen had never seen such a notation before, but proceeded to dial Dietsch while working on "paperwork stuff" by filling out the citation. Dietsch answered and told Haugen that defendant must consent to a search because he was on post-prison supervision. Dietsch attempted to enlist [289 Or.App. 695] Haugen to search the car on Dietsch's behalf, but Haugen testified that he acted on his own.

         The call between Haugen and Dietsch lasted less than five minutes. After that call and while Haugen was still typing up the citation in his car, Officer Andler spontaneously showed up, and Haugen asked him to continue to process the ticket. While he did so, Haugen approached defendant's car and asked him if "he was in possession of any weapons, any drugs, or any illegal documents, " and defendant said no. Haugen then asked defendant to step out of the car and to consent to a search. Defendant refused and, when asked why, responded that he had a bottle of used syringes that he had not yet disposed of. Haugen told defendant he did not care about that and again asked for consent to search, which defendant granted. A third officer arrived and assisted Haugen in searching the car, where they found illegal drugs.

         The trial court made several factual findings relevant on appeal. First, the court found that the entire encounter lasted 19 minutes. The court also found, based on Haugen's testimony, that it would normally take about 15 minutes to process a citation, and that to the extent that this stop lasted slightly longer, that was reasonably attributable to recent changes in the procedures for processing tickets. Finally, the court found that Haugen continued to process the citation even as he had the conversation with Dietsch, and that the two things occurred "simultaneous [ly]."

         On appeal, defendant concedes that he was lawfully stopped for failing to signal when changing lanes, but argues that Haugen extended the traffic stop, resulting in an unlawful seizure. According to defendant, the call to his probation officer was not reasonably related to the traffic stop and was therefore unlawful-that is, Haugen's questioning did not occur during an unavoidable lull, nor was it justified by reasonable suspicion to believe that his safety or the public safety was threatened. Defendant asserts that, after obtaining his driver's license, car registration, and insurance information, Haugen had all the information to complete the citation. According to defendant, the call to Dietsch was not reasonably related because the note was [289 Or.App. 696] vague and, without more information, there was no basis to call his probation officer instead of processing the citation. Additionally, defendant asserts that Haugen intentionally extended the stop in order to obtain his consent to search. Defendant claims that the call to his probation officer, even if it took at least five minutes, allowed Andler to come to the scene and to take ...


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