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State v. Brown

Court of Appeals of Oregon

September 6, 2018

STATE OF OREGON, Plaintiff-Respondent,
MICHALA ANN BROWN, Defendant-Appellant.

          Argued and submitted January 9, 2018.

          Yamhill County Circuit Court 15CR37176 Ronald W. Stone, Judge.

          Rond Chananudech, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a conviction of one count of possession of methamphetamine, ORS 475.894, challenging the trial court's denial of her motion to suppress. A law enforcement officer noticed defendant sitting in her car in a parking lot with a known drug dealer near the car. When defendant pulled out of the lot, the officer reversed direction and followed her at a close distance for approximately 10 to 15 minutes into a rural area. After defendant turned onto a gravel road, the officer twice lost sight of and then relocated the car. Approximately 20 to 25 minutes after first sighting defendant at the bar, the officer, along with a second officer in a separate patrol car, contacted defendant behind a deserted building on private property where the first officer understood defendant to be "hiding." The officer asked defendant a series of questions that culminated in a request to search her car. The resulting search led to the seizure of a small bag of methamphetamine. Defendant contends that the evidence should have been suppressed because she was unlawfully stopped at the time of the search, while the state asserts that defendant was not stopped. Held: The [293 Or.App. 773] trial court erred in denying defendant's motion to suppress. Under the totality of the circumstances, defendant was stopped because the officer engaged in a show of authority that conveyed to a reasonable person that she was not free to leave.

          AOYAGI, J.

         Defendant appeals a conviction for one count of unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court's denial of her motion to suppress. Defendant asserts that evidence found during an officer's search of her car was the product of an unlawful stop. The state contends that defendant was not stopped. The state implicitly concedes that, if she was stopped, the stop was unlawful and suppression was required. We conclude that defendant was stopped and, accordingly, reverse and remand.

         We review the denial of a motion to suppress for errors of law. State v. Davis, 286 Or.App. 528, 529, 400 P.3d 994 (2017). We are bound by the trial court's express and implicit factual findings so long as they are supported by the record. Id. We state the facts in accordance with our standard of review, noting that, in this case, the evidence was uncontested and consisted solely of the testimony of two law enforcement officers.[1]

         On an April evening, Deputy Samerdyke drove past a bar in Dayton while on patrol. He noticed defendant's car outside the bar. Defendant was in the driver's seat, and two men were in the car. Another man, whom Samerdyke recognized as a drug dealer named Marsh, was standing near the back passenger door. As Samerdyke passed, defendant's head was down and she was holding her hand up as if trying to block her face from his view. When Marsh spotted Samerdyke, Marsh walked away from defendant's car and into the bar.

         Defendant's car pulled out of the bar parking lot onto the street in the direction opposite of that which Samerdyke was travelling. Samerdyke turned around his patrol car and "got in behind [defendant's] vehicle." According to Samerdyke, it was "absolutely" possible for defendant to see him turn around to follow her. Because of Marsh's contact with the vehicle, Samerdyke suspected that there would be [293 Or.App. 774] drugs in the car. He followed defendant in the hopes that she would commit a traffic infraction so that he could stop her and conduct a drug investigation. Samerdyke was only "a few car lengths" behind defendant's car, and, as they drove, defendant's back seat passenger "kept turning around, looking at [Samerdyke], at the patrol car."

         Samerdyke followed defendant's car on a road heading out of town for approximately 10 to 15 minutes, during which time defendant did not commit any traffic infractions. Eventually, defendant turned left onto a gravel road, at which point Samerdyke "lost them for a few seconds, minutes," as he passed by, turned around, and parked at the intersection to wait. After about five minutes, defendant's car came into view, driving back toward the main road. Upon coming into view of Samerdyke's patrol car, defendant turned suddenly onto a side road and disappeared. Samerdyke drove down the gravel road and tried to find the car. A jogger flagged him down and told him that it had driven onto the property of a commercial nursery.

         When Samerdyke reached the nursery, he saw a long driveway (at least 100 yards) leading to a large parking lot and a very large building. The nursery was closed, and there were no people or vehicles in the area. A loop led from the parking lot around the back of the building. Samerdyke parked and called for backup because they were "kind of in a rural area and there were multiple people in the car." When Sergeant Rice arrived three minutes later, Samerdyke explained the situation, including that the vehicle's occupants were "trying to, I guess, hide back there out of sight."

         Samerdyke and Rice drove their marked patrol cars around and behind the nursery building. They did not activate their lights, but they approached from opposite directions, with Samerdyke coming around the west side of the building and Rice coming around the east side. Behind the building, they found defendant and one passenger standing near the front of defendant's car; there was no sign of the second passenger. They parked their patrol cars to ...

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