and submitted August 30, 2017
County Circuit Court 15CR23201; Angel Lopez, Judge.
B. Crowther, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
B. Thompson, Assistant Attorney General, argued the cause for
respondent. With him on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
appeals a judgment of conviction for one count of unlawful
possession of methamphetamine. ORS 475.894. On appeal,
defendant assigns error to the trial court's denial of
his motion to suppress evidence discovered when law
enforcement officers searched his car following
defendant's consent to that search. Specifically,
defendant argues that those officers violated his right to be
free from unlawful search and seizure under Article I,
section 9, of the Oregon Constitution and the Fourth
Amendment to the United States Constitution by unlawfully
extending the traffic stop when one of the officers asked for
consent to search defendant's car and when the requesting
officer then searched defendant's car based on that
consent. Further, defendant contends that he was illegally
seized for a second time when an officer physically removed
defendant from his vehicle to search it. Held: The trial
court did not err. Defendant's argument that the traffic
stop was unlawfully extended when the officers requested
consent to search his car was unpreserved. Further,
defendant's consent provided adequate justification for
an extension of the traffic stop [290 Or.App. 416] to conduct
the consented-to search under both Article I, section 9, and
the Fourth Amendment. Finally, even if defendant was seized
for a second time, no evidence was discovered by an
exploitation of that purportedly unlawful seizure.
Or.App. 417] SHORR, J.
appeals a judgement of conviction for one count of unlawful
possession of methamphetamine. ORS 475.894. On appeal, he
raises one assignment of error, contending that the trial
court erroneously denied his motion to suppress physical
evidence found when law enforcement officers searched his car
following defendant's consent to the search. More
specifically, defendant argues that those officers violated
his right to be free from unlawful search and seizure under
Article I, section 9, of the Oregon Constitution and the
Fourth Amendment to the United States Constitution by
unlawfully extending the stop at two points: (1) when one of
the officers asked for consent to search defendant's car
before the other officer finished issuing defendant
citations; and (2) when the requesting officer then searched
defendant's car based on that consent. Further, defendant
contends that he was illegally seized for a second time when
an officer physically removed defendant from his vehicle to
search it and, consequently, evidence that defendant later
voluntarily provided to another officer and comments that he
made after that seizure were unlawfully obtained. As we
discuss below, we first conclude that defendant's
argument regarding the officer's request for consent to
search defendant's car is unpreserved and, thus, decline
to reach the merits of that argument. As to defendant's
other arguments, we disagree with defendant and, for the
reasons stated below, affirm the decision of the trial court.
review the trial court's denial of defendant's
suppression motion for errors of law. State v. Aung,
265 Or.App. 374, 375, 335 P.3d 351, rev den, 356 Or.
575 (2014). When undertaking that review, we are bound by the
trial court's express and implicit factual findings if
there is constitutionally sufficient evidence in the record
to support them. Id. We state the facts consistently
with that standard.
was initially stopped by Portland Police Officers Winkel and
Shelton for having expired tags. After pulling defendant
over, Winkel asked defendant for his license, registration,
and proof of insurance. Defendant responded that he did not
have any of those documents, but did provide Winkel with his
identifying information so that [290 Or.App. 418] Winkel
could perform a records check. Winkel returned to his car and
performed the records check of defendant. The records check
revealed that defendant's car had previously been
involved in a drug offense.
and Shelton decided to cite defendant for driving without
insurance, driving while suspended, and driving with expired
tags. After that decision was made, Shelton immediately began
working on issuing those citations while Winkel returned to
defendant's car. While at defendant's car, Winkel
asked defendant if he could search defendant and his car.
Defendant only approved a search of his car. While Winkel was
inquiring as to consent, Shelton continued work on issuing
receiving consent to search defendant's vehicle, Winkel
immediately asked defendant to leave his vehicle. As
defendant got out of the car, Winkel asked that defendant
place his hands on his head with his fingers interlaced.
Defendant complied and, as he got out, Winkel placed his
hands on those interlaced fingers to help control defendant
as he got out of the car. After getting out of the car, and
in response to an inquiry from Winkel, defendant indicated
that he was carrying a knife and gave that knife to Winkel.
Winkel then patted defendant down and asked him to sit down
on the curb behind his car while Winkel searched the car.
Defendant did not feel that Winkel ordered him to sit there,
but rather believed that Winkel was merely requesting it.
Shelton left the police car to stand near defendant while
Winkel was conducting his search to provide support and
ensure Winkel's safety. Shelton brought her citation book
with her while she stood by defendant, and continued working
on the citations while also taking time to watch and interact
search took between 10 to 15 minutes. Early in that search
process, Winkel found brass knuckles under the driver's
seat of the car. At that point, Winkel believed that he had
at least reasonable suspicion to believe that defendant had
committed the crime of carrying a concealed weapon. Later in
the search of the car, Winkel also found a crystalline, white
substance that he believed to be methamphet-amine. After that
discovery, defendant made incriminating [290 Or.App. 419]
statements and informed Shelton that he had methamphet-amine
in his pocket. On request, defendant gave Winkel the
narcotics. Winkel and Shelton then ...