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State v. South

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JASON M. SOUTH, aka Jason Michael South, Defendant-Appellant.

          Argued and submitted February 21, 2018

          Multnomah County Circuit Court 16CR30364; Henry Kantor, Judge.

          Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Powers, Presiding Judge, and Ortega, Judge, and Mooney, Judge. [*]

         Case Summary:

         Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894(1). He assigns error to the trial court's denial of his motion to suppress and argues that the stopping deputy unlawfully extended the traffic stop by (1) inquiring into the presence of weapons and (2) requesting consent to search defendant's vehicle. The state argues that the deputy's questions were justified by officer safety concerns. Held: The trial court did not err. The deputy articulated "circumstance-specific" concerns for his safety and his decisions to inquire into the presence of weapons and request consent to search were "objectively reasonable." Therefore, because both inquiries were justified by officer-safety concerns, the deputy did not unlawfully extend the stop.

         [300 Or.App. 184] POWERS, P. J.

         In this criminal case, defendant appeals from a judgment of conviction for unlawful possession of metham-phetamine, ORS 475.894(1), and assigns error to the trial court's denial of his motion to suppress.[1] The issue before us is whether the arresting deputy's inquiry into the presence of weapons and subsequent request for consent to search defendant's vehicle unlawfully extended the traffic stop in violation of defendant's state constitutional rights. We hold that the trial court did not err in concluding that the deputy's inquiries were permissible for officer safety concerns and, therefore, we affirm.

         We review the denial of a motion to suppress for legal error and, in so doing, "we are bound by the trial court's factual findings if there is any constitutionally sufficient evidence in the record to support them." State v. Maciel-Figueroa, 361 Or. 163, 165-66, 389 P.3d 1121 (2017). To the extent that the trial court did not make express findings regarding disputed facts, we will presume that the court found the facts in a manner consistent with its ultimate conclusion, provided that the evidence would support such findings. Id. at 166. We summarize the facts consistent with those standards.

         Just after midnight, Deputy Jewell was monitoring traffic in the Linnton area of Portland and pulled over a suspicious dark green Jeep Grand Cherokee with an expired registration tag. According to Jewell, the Jeep was suspicious because, while the deputy was parked on the side of the road, the Jeep had driven past him twice within a short period of time. Jewell noticed the expired registration tag on the third time that the Jeep passed. Jewell turned on his patrol lights, but defendant did not immediately pull over and continued driving before turning into a parking lot.

         When he approached defendant to ask for his driver's license, registration, and insurance, Jewell observed that defendant was "fidgeting around in his seat, moving very quickly, looking around the vehicle, [and] shifting his [300 Or.App. 185] weight." Jewell described this as unusual behavior for a traffic stop. Jewell requested defendant's driver's license, registration, and insurance, which defendant provided. Defendant then volunteered that his driver's license was invalid. In looking at the driver's license, Jewell verified that it was, in fact, expired, and also saw that the insurance card was photocopied and "appeared altered" because "[t]here were markings over the letters and numbers."

         Based on defendant's unusual behavior, Jewell asked defendant why he was nervous, and defendant responded that he was stopped for the "same violations" and arrested for carrying a concealed handgun "several days ago." Jewell became concerned that defendant might be currently carrying a concealed handgun or that there might be weapons in the vehicle and decided to ask him as much. Jewell asked defendant if there were weapons inside his Jeep, and defendant replied, "[N]no, there's no guns." Jewell said that that was not his question and again asked if there were weapons in the Jeep. Defendant again replied, "[T]here's no guns."

         Jewell returned to his patrol car to request additional officers to respond as cover units, conduct a records check, and begin writing a traffic citation. However, he did not complete the citation and instead re-approached defendant and requested defendant's consent to search the Jeep for weapons. Defendant consented. Once back-up arrived, Jewell searched the Jeep and found a pistol magazine and two "revolver speed loaders," all loaded with ammunition, as well as a "fixed blade, double-edged dagger." In the glove compartment, ...


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