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State v. Fuller

Court of Appeals of Oregon

March 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JEFFREY EARL FULLER, Defendant-Appellant.

          Submitted December 5, 2017

          Crook County Circuit Court 15CR58288; Gary Lee Williams, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Melichar, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction entered after a jury found him guilty of unlawfully transporting special forest products, ORS 164.813(3). Defendant assigns error to the trial court's denial of his motion to suppress, arguing that the court erred in concluding that the sheriff's deputy who stopped defendant as he was driving his truck reasonably suspected that he was committing that offense. Held: The trial court erred in denying defendant's motion to suppress because the deputy lacked reasonable suspicion to support his investigatory stop of defendant.

         Reversed and remanded.

         [296 Or.App. 426] DEHOOG, P. J.

         Defendant appeals a judgment of conviction entered after a jury found him guilty of unlawfully transporting special forest products, ORS 164.813(3).[1] Defendant assigns error to the trial court's denial of his motion to suppress, arguing that the court erred in concluding that the sheriff's deputy who stopped defendant as he was driving his truck reasonably suspected that he was committing that offense. We agree with defendant that the deputy lacked reasonable suspicion to detain him and, therefore, the trial court erred in denying defendant's motion to suppress. Accordingly, we reverse and remand.

         We review a trial court's denial of a motion to suppress for legal error. State v. Maciel-Figueroa, 361 Or. 163, 165, 389 P.3d 1121 (2017). We are bound by the court's factual findings if there is constitutionally sufficient evidence in the record to support them. Id. at 165-66. If the court did not enter express findings and there is "evidence from which the trial court could have found a fact in more than one way, we will presume that the trial court decided the facts consistently" with its ultimate legal conclusion. Id. at 166.

         At the suppression hearing, Deputy Childers of the Crook County Sheriff's Office testified that he had observed a truck driving through downtown Prineville at approximately 2:15 a.m. The truck was hauling approximately three-quarters of a cord of cut wood rounds. Childers saw that there were no landowner or government-issued firewood tags attached to the load, which he understood ORS 164.813(3) to require. Childers testified that, based on his training and experience, he knows that often individuals will cut firewood in the forest during the day but wait until later at night to retrieve it. Frequently those people are found to have removed that firewood from the forest without [296 Or.App. 427] having a permit or other authority to transport the wood.[2] Because defendant did not appear to have a permit posted on the firewood in the manner Childers associated with the lawful transport of forest products, Childers believed that he had reasonable suspicion to stop defendant's truck to investigate whether he had violated ORS 164.813(3).

         Defendant was the driver and sole occupant of the truck. When Childers asked defendant about the wood in the back of his truck, defendant acknowledged that he had taken it from the forest. When asked whether he had a permit for the firewood, defendant said that he did, but that he had left the permit at home. After obtaining those responses, Childers ran a background check on defendant and discovered that he had been driving with a suspended license. As a result, Childers cited defendant both for driving while suspended and unlawfully transporting special forest products.

         Before his trial on the unlawful transport charge, defendant moved to suppress the evidence obtained as a result of the stop, arguing that Childers had lacked reasonable suspicion to justify stopping him. During the suppression hearing, the trial court asked Childers whether he had been able to tell what kind of wood defendant had been hauling. As Childers began responding that it had not been juniper or tamarack, defendant interjected to say ...


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