State v. Cowdrey
State v. Cowdrey
Opinion of the Court
*316*417Defendant appeals a judgement of conviction for one count of unlawful possession of methamphetamine. ORS 475.894. On appeal, he raises one assignment of error, contending that the trial court erroneously denied his motion to suppress physical evidence found when law enforcement officers searched his car following defendant's consent to the search. More specifically, defendant argues that those officers violated his right to be free from unlawful search and seizure under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution by unlawfully extending the stop at two points: (1) when one of the officers asked for consent to search defendant's car before the other officer finished issuing defendant citations; and (2) when the requesting officer then searched defendant's car based on that consent. Further, defendant contends that he was illegally seized for a second time when an officer physically removed defendant from his vehicle to search it and, consequently, evidence that defendant later voluntarily provided to another officer and comments that he made after that seizure were unlawfully obtained. As we discuss below, we first conclude that defendant's argument regarding the officer's request for consent to search defendant's car is unpreserved and, thus, decline to reach the merits of that argument. As to defendant's other arguments, we disagree with defendant and, for the reasons stated below, affirm the decision of the trial court.
We review the trial court's denial of defendant's suppression motion for errors of law. State v. Aung ,
Defendant was initially stopped by Portland Police Officers Winkel and Shelton for having expired tags. After pulling defendant over, Winkel asked defendant for his license, registration, and proof of insurance. Defendant responded that he did not have any of those documents, but did provide Winkel with his identifying information so that *418Winkel could perform a records check. Winkel returned to his car and performed the records check of defendant. The records check revealed that defendant's car had previously been involved in a drug offense.
Winkel and Shelton decided to cite defendant for driving without insurance, driving while suspended, and driving with expired tags. After that decision was made, Shelton immediately began working on issuing those citations while Winkel returned to defendant's car. While at defendant's car, Winkel asked defendant if he could search defendant and his car. Defendant only approved a search of his car. While Winkel was inquiring as to consent, Shelton continued work on issuing defendant citations.
After receiving consent to search defendant's vehicle, Winkel immediately asked defendant to leave his vehicle. As defendant got out of the car, Winkel asked that defendant place his hands on his head with his fingers interlaced. Defendant complied and, as he got out, Winkel placed his hands on those interlaced fingers to help control defendant as he got out of the car. After getting out of the car, and in response to an inquiry from Winkel, defendant indicated that he was carrying a knife and gave that knife to Winkel. Winkel then patted defendant down and asked him to sit down on the curb behind his car while Winkel searched the car. Defendant did not feel that Winkel ordered him to sit there, but rather believed that Winkel was *317merely requesting it. Shelton left the police car to stand near defendant while Winkel was conducting his search to provide support and ensure Winkel's safety. Shelton brought her citation book with her while she stood by defendant, and continued working on the citations while also taking time to watch and interact with defendant.
The search took between 10 to 15 minutes. Early in that search process, Winkel found brass knuckles under the driver's seat of the car. At that point, Winkel believed that he had at least reasonable suspicion to believe that defendant had committed the crime of carrying a concealed weapon. Later in the search of the car, Winkel also found a crystalline, white substance that he believed to be methamphetamine. After that discovery, defendant made incriminating *419statements and informed Shelton that he had methamphetamine in his pocket. On request, defendant gave Winkel the narcotics. Winkel and Shelton then arrested defendant. After the discovery of methamphetamine, Winkel and Shelton decided not to issue defendant traffic citations, and the citations were never completed.
Defendant was charged with unlawful possession of methamphetamine. Defendant filed a motion to suppress the evidence found during the search of his car and the evidence that he had turned over to the officers after that search. In that motion, defendant argued that the traffic stop was illegally extended when Winkel began conducting the consent search of defendant's car because Shelton was impeded in completing her citations when she had to cover defendant. A hearing on that motion was held where Winkel, Shelton, and defendant all testified. At that hearing, defendant also argued that the methamphetamine he gave to police and the incriminating statements he made should be suppressed because Winkel unlawfully seized defendant for a second time when he placed his hands on defendant's interlaced fingers as he was directing defendant out of the car.
The trial court ruled from the bench that, regarding the search of defendant's vehicle, "the inquiry * * * was reasonable," "consent was valid," and that, as a result, the search was not "overly intrusive" because "courts are [not] putting time limitations on the search itself." The court made no explicit ruling on defendant's secondary seizure argument. However, the court implicitly disagreed with that argument when it denied defendant's motion to suppress.
A short bench trial was held, after which the court entered a judgment convicting defendant of unlawful possession of methamphetamine. ORS 475.894. Defendant appeals that judgment.
As noted, on appeal, defendant assigns error to the trial court's denial of his motion to suppress. Specifically, defendant contends that the trial court erred in three respects. First, defendant contends that the court erred when it concluded that Winkel's request for consent to search defendant's car was not an extension of the traffic stop. Second, *420defendant argues that the court erred when it concluded that Winkel's actual search of defendant's car was a lawful extension of the traffic stop. Finally, defendant asserts that the court erred when it concluded that defendant was lawfully seized by both officers when he was removed from the car prior to the consent search.
We first address defendant's argument that Winkel unlawfully extended the traffic stop when he asked for consent to search defendant's vehicle. We decline to reach the merits of that argument because it is unpreserved.
Generally, an issue not preserved in the trial court will not be considered on appeal, unless that error is plain. Ailes v. Portland Meadows, Inc. ,
*318Defendant failed to preserve his argument because he failed to provide the trial court with an objection, let alone "an explanation of his or her objection that [was] specific enough to ensure that the court [could] identify its alleged error."
We turn next to defendant's second argument-that the trial court erred because the consent search of his car itself constituted an unlawful extension of the traffic stop under both Article I, section 9, and the Fourth Amendment. As discussed below, we disagree with defendant and reject his argument.
We first address defendant's argument under the Oregon Constitution. We review the trial court's denial of defendant's suppression motion for errors of law. Aung ,
Typically, the required justification to extend a traffic stop is reasonable suspicion that a crime has been committed. See, e.g. , State v. Fair ,
*422State v. Marino ,
There is no dispute that the initial seizure of defendant as a result of the traffic stop was lawful. Neither party disputes that defendant gave consent to search his car, although that search was unrelated to the traffic violation. Further, it is undisputed that Winkel did not have reasonable suspicion justifying the search-any reasonable suspicion of a possible crime arose later *319when Winkel found the brass knuckles under the driver seat during the search. Finally, neither party disputes that the consent search extended the traffic stop.
Consent is an exception to the warrant requirement of Article I, section 9. Marino ,
For a police-citizen encounter to be considered a seizure, an officer implicitly or explicitly "must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs." State v. Backstrand ,
In that way, the extension of the traffic stop caused by the consent search is just like the extension of the police-citizen encounter caused when an officer conducts a consent *424search of a car after completing the traffic stop. We have already upheld the lawfulness of that type of encounter under Article I, section 9. See State v. Hampton ,
In a memorandum of supplemental authority, defendant contends that our decision should be controlled by State v. Reich ,
We next turn to defendant's contention that the trial court erred in concluding that the traffic stop was lawfully extended under the Fourth Amendment by Winkel's consent search. We also find that argument unconvincing.
Fourth Amendment law on the extension of traffic stops closely mirrors the law under Article I, section 9. In Rodriguez v. United States , --- U.S. ----,
For instance, the United States Court of Appeals for the Fourth Circuit has stated that, "[i]f a traffic stop is extended in time beyond the period that the officers are completing tasks related to the traffic infractions, the officers must either obtain consent from the individuals detained or identify reasonable suspicion of criminal activity to support the extension of the stop." United States v. Hill ,
*426Given the similarity between Article I, section 9, and the Fourth Amendment case law regarding the issue in this case, we agree with the above cited cases and conclude that *321consent can provide adequate justification for the extension of a traffic stop under the Fourth Amendment for the same reasons it provides adequate justification under Article I, section 9. As a result, the trial court did not err in concluding that Winkel's consent search of defendant's car was a lawful extension of the traffic stop under the Fourth Amendment.
Finally, we turn to defendant's argument that the trial court erred in failing to suppress the statements that he made and evidence found on his person after defendant was removed from the car so that Winkel could search it. Defendant contends that he was unlawfully seized for a second time because Winkel physically removed him from his car and guided him away from the car to the curb to conduct the consent search. Defendant contends that that seizure resulted in him making incriminating statements and providing Shelton with physical evidence from his person. Here, assuming that defendant was in fact seized for a second time when Winkel removed him from his car, we conclude that defendant's incriminating statements and the discovery of the physical evidence on defendant was not caused by an exploitation of that purportedly unlawful seizure.
Under an exploitation analysis, the state has the burden to prove that the evidence discovered was independent of, or only tenuously related to, the unlawful police conduct. State v. Lowell ,
Here, the state argues that the officers did not obtain the disputed evidence by exploiting the allegedly illegal second *427seizure of defendant because, the state argues, that seizure had ended by the time defendant made the incriminating statements and turned over the physical evidence on his person. We understand that argument to be that the officers did not exploit the allegedly illegal second seizure-assuming that one occurred-because the unlawful conduct was "independent of, or only tenuously related to the disputed evidence."
As the state correctly points out, assuming the actions that defendant alleges actually constituted an illegal second seizure, defendant was no longer subject to that seizure when the evidence he wishes to suppress was collected. "A seizure ends when a reasonable person under the totality of the circumstances would no longer believe that his or her liberty is being restricted." Lowell ,
Given defendant's description of the events surrounding the alleged second seizure, we conclude that, given the totality of the circumstances, a reasonable person would not have believed that he was subject to the increased deprivation of his liberty caused by the second seizure after Winkel patted defendant down. As a result, although defendant was undeniably detained at the point that he made the incriminating statements and gave Winkel the methamphetamine on his person, that detention was due to the first seizure-i.e. , the original traffic stop-not due to the alleged second seizure. Further, defendant's testimony illuminates the fact that the allegedly illegal seizure did not affect his later decision-making process, as he no longer felt coerced by the officers after he sat down, and nothing in the record indicates that the officers *322found evidence or information during that *428short detention that they "traded on" to coerce defendant's statements and voluntary relinquishment of evidence. State v. Unger ,
In summary, we conclude that the trial court did not err in denying defendant's motion to suppress. First, defendant's argument that Winkel extended defendant's traffic stop when he requested consent is unpreserved and, thus, we do not reach it. Next, Winkel's search of defendant's car was justified by defendant's consent and, thus, did not unjustifiably extend the traffic stop in violation of either Article I, section 9, or the Fourth Amendment. Finally, assuming that defendant was in fact subject to an unlawful second seizure, Shelton did not exploit that seizure to obtain defendant's incriminating statements or the physical evidence from defendant.
Affirmed.
"[O]fficers may not extend the duration of a traffic stop * * * regardless of the length of the extension." State v. Dennis ,
Defendant does not contend that his consent was involuntary or coerced.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.