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State v. Kamph

Court of Appeals of Oregon

May 22, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID JAMES KAMPH, Defendant-Appellant.

          Argued and submitted September 7, 2018

          Coos County Circuit Court 14CR0944 Martin E. Stone, Judge.

          Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894, assigning error to the denial of his motion to suppress evidence discovered as the result of a search of a vehicle in which he was a passenger. Defendant argues, first, that he was unlawfully seized under Article I, section 9, of the Oregon Constitution when a drug dog was deployed around the vehicle while defendant was still inside, and, second, that his seizure was unlawful under the Fourth Amendment to the United States Constitution because the traffic stop was unlawfully extended by the dog sniff and ensuing investigation.

         Held:

         Defendant was not seized under Article I, section 9 of the Oregon Constitution because here, the dog sniff alone was not a direct and unambiguous accusation of unlawful activity. Because of factual inconsistencies in the trial court's ruling on the Fourth Amendment issue, and because the trial court made its ruling without the benefit of critical case law from the Court of Appeals [297 Or.App. 688] and the United States Supreme Court, the court vacated and remanded for the trial court to expressly address the Fourth Amendment standard regarding the unlawful extension of a stop, and for any additional factfnding that may be necessary.

         Vacated and remanded for reconsideration of defendant's Fourth Amendment argument; otherwise affirmed.

         [297 Or.App. 689] JAMES, J.

         In this criminal appeal, defendant appeals the denial of his motion to suppress evidence discovered as the result of a search of a truck in which he was a passenger. On appeal, defendant raises arguments under both the state and federal constitutions. For purposes of the Fourth Amendment to the United States Constitution, defendant argues that his lawful seizure that occurred when the vehicle was stopped for a traffic infraction was unlawfully extended by the deployment of a drug detection dog. Because of factual inconsistencies in the trial court's ruling on the Fourth Amendment issue, and because the trial court made its ruling without the benefit of critical case law from this court and the United States Supreme Court, we vacate and remand for the trial court to expressly address the Fourth Amendment standard regarding the unlawful extension of a stop, and for any additional factfinding that may be necessary.

         "We review the trial court's denial of the motion to suppress for legal error." State v. Miller, 267 Or.App. 382, 383, 340 P.3d 740 (2014). "In reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact that are supported by evidence in the record. We state the facts consistently with the trial court's explicit and implicit factual findings, which the record supports." State v. Leiby, 293 Or.App. 293, 294, 427 P.3d 1141 (2018) (internal quotation marks and citations omitted).

         Defendant was one of two passengers in a small pickup truck that was pulled over for a traffic violation. It was a single cab pickup truck and all three people in the truck-the driver, the middle passenger, and defendant- were sitting on the same bench seat. Upon contact with the driver, Coos Bay Police Officer Volin noticed that the middle passenger was not wearing a seatbelt. Volin requested identifying documents from both the driver and the middle passenger. The middle passenger was unable to produce identification but gave her name and date of birth. Volin contacted dispatch and, while the driver was "clear and valid," dispatch was unable to locate the middle passenger's information. Volin returned to the vehicle to ask if she [297 Or.App. 690] had a driver's license, and the middle passenger provided Volin with an expired debit card. It was apparent at that point that Volin likely had misheard the name she provided earlier. ...


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