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State v. Toll

Court of Appeals of Oregon

December 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JIMMIE TOLL, aka James Lee Toll, Defendant-Appellant.

          Argued and submitted February 21, 2017

          Marion County Circuit Court 14C42177 Thomas M. Hart, Judge.

          Anna Melichar, Deputy Public Defender, argued the cause for appellant. Also on the briefs 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 Aoyagi, Presiding Judge, and Egan, Chief Judge, and Hadlock, Judge. [*]

         [295 Or.App. 278] Case Summary: Defendant, who was convicted after a stipulated facts trial of one count of possession of methamphetamine, ORS 475.894, appeals, assigning error to the denial of a motion to suppress evidence. The dispositive issue reduces to whether an offcer's request for consent to frisk defendant for weapons during a criminal investigatory stop unlawfully extended that stop. Held: The trial court did not err. The offcer's request was based on an objectively reasonable perception of "circumstance-specifc concerns for [his] safety" and an objectively reasonable "deci[sion] that [that request] was necessary to address that danger." State v. Jimenez, 357 Or. 417, 429-30, 353 P.3d 1227 (2015); see also State v. Miller, 363 Or. 374, 381, 422 P.3d 240, adh'd to as modifed on recons, 363 Or. 742, 428 P.3d 899 (2018).

         Affirmed.

         [295 Or.App. 279] EGAN, C. J.

         Defendant, who was convicted after a stipulated facts trial of one count of possession of methamphetamine, ORS 475.894, appeals, assigning error to the denial of a motion to suppress evidence. As ultimately framed by the parties on appeal, the dispositive issue reduces to whether an officer's request for consent to frisk defendant for weapons during a criminal investigatory stop unlawfully extended that stop. We conclude that the officer's request was based on an objectively reasonable perception of "circumstance-specific concerns for [his] safety" and an objectively reasonable "deci[sion] that [that request] was necessary to address that danger." State v. Jimenez, 357 Or. 417, 429-30, 353 P.3d 1227 (2015); see also State v. Miller, 363 Or. 374, 381, 422 P.3d 240, adh'd to as modified on recons, 363 Or. 742, 428 P.3d 899 (2018). Accordingly, we affirm.

         Whether an officer's actions effected an unlawful extension of a stop is a question of law, which we review for errors of law. State v. RodgersIKirkeby, 347 Or. 610, 625, 227 P.3d 695 (2010). The facts material to our review are undisputed.

         In the early evening of April 1, 2014, Oregon State Police Sergeant Plummer was on patrol near Shaw, in Marion County. Plummer, a highly-experienced officer with nearly 25 years' service in the Patrol Services Division and who regularly patrolled in the Shaw area, noticed a pickup truck that he did not recognize pulled over to the side of a rural road. His attention heightened when, after he had passed the vehicle, the pickup "pulled a U-turn." Plummer followed and noticed, when the pickup stopped at an intersection and later slowed at a railroad crossing, that one of its brake lights was not working. Plummer stopped the pickup for that traffic violation.

         Plummer then approached the pickup from the passenger side.[1] As he did so, it "was still light outside" and traffic was light. Defendant was the driver, and with him were two passengers, a man and a woman; the windows were rolled [295 Or.App. 280] down. Plummer explained why he had initiated the stop and asked for defendant's driver's license, registration, and proof of insurance-and, as he did so, Plummer smelled what he believed to be the odor of "unused" (as opposed to "burnt" or "smoked") methamphetamine "coming from inside the vehicle." The odor "wasn't overwhelming," but "it was enough to get [Plummer's] attention."[2] After Plummer obtained the documents from defendant, but before he returned to his patrol car to run a check on that information, another officer radioed to ask if Plummer "needed a cover unit." Plummer responded that he did.[3]

         The ensuing records check disclosed no license suspensions, outstanding warrants, or such concerning information as assaultive conduct against police officers. But for the smell of methamphetamine, at that point Plummer would ordinarily have issued a warning about the equipment violation, and defendant would have been free to go. Instead, Plummer returned to the pickup and, because he believed he had reasonable suspicion of possession of methamphetamine (though he had no "indication of which of the three persons in the truck had the methamphetamine"), Plummer asked defendant to step out of the vehicle to talk with him.

         Defendant, who had been fully "cooperative" during the encounter, complied. Plummer spoke with defendant at the rear of the pickup, to separate defendant from his passengers, and told defendant that he had smelled the odor of methamphetamine coming from inside the pickup and wanted to talk with defendant and his passengers about that odor. Although defendant responded that he "didn't have any problem with that," his demeanor changed once Plummer "brought up the methamphetamine." From that point in the encounter, defendant "stiffened," becoming "more nervous" and "more rigid," "nervously looking side to side and away," avoiding eye contact with Plummer and, instead, "look[ing] at his peer" in the cab of the pickup.

         [295 Or.App. 281] Defendant also assumed a different and "unusual" body posture, which Plummer described as someone "get [ting] in that fight or flight mode." To Plummer, defendant appeared to be "starting to calculate whether [he] should stay, whether [he] should run, whether [he] should fight [.]" For reasons amplified below, see 295 Or.App. at__, that change in defendant's demeanor and posture- which deviated from the typical "reasonable arc of movement"[4]-made Plummer "nervous." Plummer "didn't want [defendant] reaching into his pants pockets."[5] Accordingly, Plummer asked defendant if he could frisk the area of his pants pockets "for my safety"[6] Defendant responded affirmatively.

         Plummer then frisked defendant's pants pocket area and felt an object that was similar in shape and dimensions to either an inhaler or a drug pipe. When Plummer asked defendant what the object was, defendant replied that it was "something to hold keys with" and agreed to take the object out so Plummer could see it. As defendant started to pull the object (which was, in fact, a hollow key holder) from his pocket, its lid split, momentarily revealing what appeared to be the cap of a syringe, and Plummer smelled the odor of methamphetamine. When Plummer told defendant that he had smelled methamphetamine and, ultimately, that "he could open [the container] or [Plummer] could," defendant began to call out to the woman passenger in the pickup for his cell phone so he could call an attorney. Plummer, concerned that the encounter was "heightening," ordered defendant to place his hands on the hood of the patrol car. Plummer then removed the container from defendant's pocket and opened it; inside was a used syringe and what proved to be crystal methamphetamine.

         [295 Or.App. 282] Defendant was charged with one count of possession of methamphetamine. He moved to suppress the evidence discovered as a result of the frisk. In so moving, defendant asserted, inter alia, both that (1) Plummer lacked reasonable suspicion of drug-related crimes and, thus, could not extend and expand the predicate traffic stop on that basis; and (2) the request for consent to a frisk was not justified by sufficient officer safety concerns.

         The state remonstrated that (1) given the ambient odor of methamphetamine in the pickup, the stop was lawfully extended to investigate drug-related crimes; and (2) the request for consent to an officer safety related frisk was lawful under the construct adopted in State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987).[7] At no time before the trial court did the state contend that Plummer's request for consent to frisk was based on a belief that the frisk could yield evidence of drug-related crimes; rather-perhaps because Plummer had explicitly phrased, and framed, his request for consent to frisk by reference to "my safety"-the state relied solely on an officer safety justification for that request.

         At the suppression hearing, Plummer was the sole witness. In addition to recounting the circumstances recounted above, he also, as set out below, 295 Or.App. at, testified regarding the dangers of traffic stops generally as well as his perception and assessment of those risks attending his encounter with defendant specifically.

         The trial court denied the motion to suppress, concluding in part that the request for consent to "pat [defendant] down for officer safety" was lawful because Plummer had "developed a reasonable suspicion that Defendant may be in possession of a weapon or some other instrument capable of causing physical injury." As noted, defendant was subsequently convicted, following a stipulated facts trial, of possession of methamphetamine, and this appeal ensued.

         [295 Or.App. 283] On appeal, and in the light of the Supreme Court's intervening issuance of Jimenez and Miller, the parties have refined their positions.[8] Defendant no longer disputes that, given the odor of methamphetamine in the pickup, Plummer had reasonable suspicion that "the [pickup] contained-or that one of its occupants possessed-methamphetamine." Rather, defendant's sole, ultimate contention is that Plummer's request for consent to frisk did not comport with the standards established in Jimenez and reiterated in Miller and, thus, unlawfully extended that stop, even if that stop had morphed into a criminal investigatory stop.[9]

         The state initially countered with two principal responses. First, the state asserted that the Jimenez construct, which was announced in the context of a traffic stop, should not be extended to criminal-investigatory stops. That contention has now been foreclosed by Miller, in which the Supreme Court, without qualification, applied Jimenez to circumstances in which, "[b]ased on his initial encounter with defendant, the officer developed reasonable suspicion that defendant had committed the crime" of driving under the influence of intoxicants" (DUII). 363 Or at 377.[10]

         Second, the state asserted, and continues to assert, that, in the totality of the circumstances, Plummer's request satisfied Jimenez's requisites.[11] In that regard, we do not understand the state to contend on appeal-as it did not do [295 Or.App. 284] before the trial court, see 295 Or.App. at-that Plummer's request could be alternatively justified as based on a reasonable suspicion that a frisk would reveal evidence of drug possession.[12] Accord Jimenez, 357 Or at 423-24 (noting that the state there did not argue that "the trooper's inquiry was independently justified by reasonable suspicion that defendant was in violation of criminal laws pertaining to the possession of weapons"). Nor does the state dispute that, if the request for consent to frisk did not meet Jimenez's dictates, that request concomitantly effected an unlawful extension of the stop, requiring suppression.[13]

         We turn first to Jimenez. There, an officer stopped the defendant, who was dressed in clothing that the officer thought might indicate gang affiliation and could conceal the presence of weapons, for a jaywalking violation at an intersection in a high-crime area with "a lot of recent gang activity." 357 Or at 419-20, 430. After some brief conversation, the officer asked the defendant whether he "ha[d] any weapons on [him]" and defendant ...


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