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State v. Rondeau

Court of Appeals of Oregon

January 24, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DEBORAH LEE RONDEAU, Defendant-Appellant.

          Argued and Submitted January 9, 2018.

          Coos County Circuit Court 16CR01172 Martin E. Stone, Judge.

          Kali Montague, 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.

          E. Nani Apo, 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 judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. During a traffic stop, a law enforcement officer smelled marijuana on defendant's person and began investigating her for driving under the influence of intoxicants (DUII). The officer asked defendant several questions, first about marijuana use and then about marijuana possession. The officer then found methamphetamine and a pipe during a consent search. Before trial, defendant moved to suppress that evidence on the ground that it was obtained during an unlawful extension of the stop. The state argued that the officer's conduct was reasonably related to the DUII investigation. The trial court denied the motion, and defendant appeals. Held: The trial court erred in denying defendant's motion to suppress. The state failed to identify a reasonable, circumstance-specific relationship between the officer's request to search defendant and the DUII investigation.

         Reversed and remanded.

          [295 Or.App. 770] AOYAGI, J.

         Defendant was stopped for a traffic violation while bicycling. During the stop, the officer began investigating defendant for driving under the influence of intoxicants (DUII), specifically marijuana. The officer asked defendant a series of questions, which ultimately led to the seizure of methamphetamine and a pipe. Defendant was charged with unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant moved to suppress the evidence on the ground that it was obtained during an unlawful extension of the stop. The state countered that the officer had reasonable suspicion of DUII and that his questions were therefore reasonable and did not unlawfully extend the stop. The trial court denied the motion. Defendant was convicted. On appeal, she assigns error to the denial of her motion to suppress. For the reasons that follow, we conclude that the trial court erred in denying defendant's motion to suppress and, accordingly, reverse and remand.

         We review a trial court's denial of a motion to suppress for legal error. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's factual findings if they are supported by evidence in the record. Id. If the trial court did not make an express finding on a necessary fact, we presume that the court found the facts in a manner consistent with its decision. State v. Roesler, 235 Or.App. 547, 550, 234 P.3d 1004 (2010). We state the facts accordingly.

         On an October night, Deputy Stevens was on patrol when he saw defendant, who was riding a bicycle, run a stop sign. Stevens stopped defendant for failing to obey a traffic control device, which is a traffic violation. Stevens immediately smelled a "heavy odor of marijuana" coming from defendant's person. Based on defendant having run a stop sign and the odor of marijuana, Stevens suspected that defendant was under the influence of intoxicants. He began to investigate a possible DUII offense.[1]

          [295 Or.App. 771] Stevens asked defendant for her identification and at some point ran her name through dispatch. Stevens told defendant that he could smell the marijuana on her and asked when she had last smoked. Defendant replied that she had smoked "[e]arlier in the day." Based on his training and experience, Stevens did not consider that answer consistent with the odor coming from her person. Stevens asked defendant whether she had any marijuana on her. She said that she did and handed him a small sealed plastic bag of marijuana. In Stevens's experience from prior DUII and drug-related cases, once he finds one drug-related item, he is typically "able to locate additional items." He also suspected that defendant had more marijuana on her because of "the amount of marijuana that [he] was smelling coming from her person." Stevens "didn't believe, at that time, that that was all she had on her," so he asked defendant for consent to search her.

         Defendant consented to a search of her person and also, at some point, to a search of at least one bag that she had with her. Stevens found more marijuana and a Bluetooth headset case. Stevens requested and obtained consent to open the headset case and, inside it, found a glass pipe that he suspected contained methamphetamine residue. Stevens asked defendant "where her meth was." Defendant denied having any methamphetamine on her. She then told Stevens that she was trying to get home for a family dinner and was concerned whether she was going to jail. Stevens told defendant that, if she gave him her methamphetamine, he would not arrest her but would just refer the matter to the district attorney's office. Defendant removed a small plastic bag of methamphetamine from her pocket and gave it to Stevens. At that time, Stevens received another call, told defendant that he would refer the matter, and departed.[2] The stop had lasted about 22 minutes.

         The state charged defendant with one count of unlawful possession of methamphetamine, ORS 475.894. Defendant moved to suppress the evidence, arguing that it was [295 Or.App. 772] obtained during an unlawful extension of the stop in violation of Article I, section 9, of the Oregon Constitution. The state asserted that Stevens's questions were justified by reasonable suspicion of DUII and, once he found the glass pipe, by reasonable suspicion of possession of methamphetamine. Defendant conceded that Stevens had reasonable suspicion ...


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