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State v. Sarmento

Court of Appeals of Oregon

March 27, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
KAYLA RENEE SARMENTO, Defendant-Appellant. 296 Or.App. 763

          Argued and submitted November 21, 2017

          Jackson County Circuit Court 14CR15300, 14CR24518 Timothy Barnack, Judge.

          Mary M. Reese, 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.

          Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [296 Or. App.764] Case Summary: Defendant appeals from a judgment of conviction for unlawful possession of heroin, ORS 475.854, and unlawful possession of methamphetamine, ORS 475.894, asserting that the trial court erred in denying her motion to suppress evidence obtained during a traffic stop that she contends was unlawfully extended because the "officer-safety" exception to the warrant requirement did not justify the officer's actions. The state responds that the officer's actions were reasonably related to the traffic investigation and were therefore lawful under State v. Jimenez, 357 Or. 417, 353 P.3d 1227 (2015). Alternatively, the state argues that the officer's actions were justified because he had reasonable suspicion that defendant possessed a controlled substance. Held: The trial court erred in denying defendant's motion to suppress. The officer's requests that defendant move her feet were more intrusive than the circumstances required and were therefore not objectively reasonable under Jimenez. Moreover, the facts relied on by the officer did not support an objectively reasonable suspicion of possession of a controlled substance.

         [296 Or. App.765] ORTEGA, P. J.

         In this consolidated appeal, defendant challenges her convictions for unlawful possession of heroin, ORS 475.854, and unlawful possession of methamphetamine, ORS 475.894. In case number 14CR15300, defendant asserts that the trial court erred in denying her motion to suppress evidence obtained during a traffic stop that she contends was unlawfully extended because the "officer-safety" exception to the warrant requirement did not justify the officer's actions.[1] We conclude that the trial court erred in denying defendant's motion and, accordingly, reverse and remand.

         We review the denial of a motion to suppress for legal error and are bound by the trial court's explicit and implicit factual findings if evidence in the record supports them. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). Accordingly, we state the facts consistently with the trial court's factual findings.

         Around 8:00 p.m., while patrolling an area of Medford known to have "a lot of drug and criminal activity," Officer Oiler noticed two people in a parked car in an "alleyway" with a "building on one side" and an "empty lot" on the other. Defendant was in the driver's seat, and a man was in the passenger seat. The car did not have a front license plate, a traffic violation under ORS 803.540. State v. Blueback, 291 Or.App. 779, 784, 422 P.3d 385 (2018). Oiler initiated a traffic stop by pulling in front of the car so that his car faced the parked car. He got out of his car and, as he approached, saw both defendant and the passenger "hiding or concealing or obtaining * * * items around their waist, around the areas [he] couldn't see within the vehicle," which Oiler characterized as "furtive movements." Oiler knew that weapons are commonly hidden and concealed around the waist. He ordered them to "stop moving" and keep their hands where he could see them, and they complied. He then [296 Or. App.766] called for a cover officer because he was concerned for his safety and "wanted another set of eyes." They both appeared nervous, and Oiler saw "fresh track marks" or needle marks on defendant's arms. Oiler asked for their names but did not take any steps to process the citation for the traffic violation while waiting for the cover officer. During that time, Oiler waited at the side of the car, and the "passenger kept moving towards his waist line." Defendant also dropped something "like a candy box" on the floor and shuffled something around with her feet. Oiler testified that he did not believe that the candy box was a weapon. Rather, the candy box was as small as a credit card or as big as a "movie box" and could have had a number of things in it, including a weapon. Oiler again told them to stop moving.

         Once Officer Dennis arrived, about two and a half minutes later, Oiler briefed Dennis and told him to watch the passenger while Oiler approached defendant because "there might be weapons present." Oiler then approached defendant and asked her, "Hey, do you mind moving your right foot?" She moved her right foot but "moved her left foot over" to where her right foot had previously been. Oiler then asked, "Hey, will you move your left foot?" When defendant moved her left foot, Oiler saw a syringe filled with a substance that Oiler believed to be heroin. Defendant was arrested for possession of heroin and later made incriminating statements.

         At the hearing on defendant's motion to suppress the evidence obtained during the stop, Oiler testified that he had about 11 years of law enforcement experience in Oregon and Arizona, including "advanced training in narcotics" and experience training other officers. He testified that he waited for Dennis to begin the traffic investigation because he "had officer safety issues" that had to be dealt with first— that is, being in a high crime area, outnumbered, alone, and witnessing the occupants make movements towards their waistlines where weapons are commonly kept. He also explained that police contacts with people in cars are some of the "more dangerous" encounters because of the number of areas in which things can be concealed. He further testified that by the time Dennis arrived, he believed there was a "strong possibility" that there were weapons in the car. On [296 Or. App.767] cross-examination, when asked how he addressed his safety concerns, Oiler responded that he did so by asking defendant to move her feet because he "believed that she was hiding something with her foot."

         Defendant argued that Oiler unlawfully extended the traffic stop without reasonable suspicion of criminal activity and that the extension was not justified by the officer-safety exception to the warrant requirement. The state responded that Oiler's actions were justified by reasonable suspicion of a crime and officer-safety concerns and that the two issues are "intertwined together." The court denied the motion without making any express factual findings, and defendant entered a conditional plea of guilty.

         On appeal, the parties generally renew the arguments they made below. Defendant argues that Oiler's actions were not reasonably related to the basis for the traffic stop and were unlawful because they were not justified by the officer-safety exception to the warrant requirement as articulated in State v. Bates,304 Or. 519, 524, 747 P.2d 991 (1987). The state counters that Oiler's actions were reasonably related to the traffic investigation and were therefore lawful under State v. Jimenez, 357 Or. 417, 426, 353 P.3d 1227 (2015). ...


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