State v. Magana

265 Or.App. 416

335 P.3d 318

STATE of Oregon, Plaintiff–Respondent

v.Manuel Alejandro MAGANA, Defendant–Appellant.

State of Oregon, Plaintiff–Respondent

v.Jose Guadalupe Ramirez Rivera, Defendant–Appellant.

CR0901676, CR0901677

A145917 Control, A145963.

Court of Appeals of Oregon.

Submitted on remand April 18, 2014.

Decided Sept. 10, 2014.

Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellants.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the briefs for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the supplemental briefs.

Before DUNCAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

Opinion

NAKAMOTO, J.

This case, now before us on remand from the Supreme Court, began as a consolidated appeal by defendants Ramirez Rivera (defendant), who was convicted of one count of unlawful delivery of heroin, ORS 475.850, and Magana, who was convicted of one count of unlawful manufacture of heroin, ORS 475.846. The trial court had denied their respective motions to suppress, and they challenged the rulings on appeal. We reversed and remanded with respect to both Magana and defendant. We agreed with Magana's contention that, when the police had encountered him at the apartment he shared with defendant, he had not voluntarily consented to a search and, thus, the officers' warrantless search of the apartment, where heroin and a large amount of cash were found, was unconstitutional. State v. Magana/Rivera, 257 Or.App. 251, 272, 304 P.3d 780 (2013). The Supreme Court denied the state's petition for review as to Magana. State v. Magana, 354 Or. 386, 314 P.3d 964 (2013).

However, the Supreme Court granted the state's petition for review as to defendant. We had reversed as to defendant based on our conclusion that the police had seized him at a bus stop without reasonable suspicion, which then allowed the police to learn information that led them to the apartment. The court vacated our decision and remanded for reconsideration in light of the court's trilogy of opinions in State v. Backstrand, 354 Or. 392, 313 P.3d 1084 (2013) ; State v. Anderson, 354 Or. 440, 313 P.3d 1113 (2013) ; and State v. Highley, 354 Or. 459, 313 P.3d 1068 (2013). State v. Magana/Rivera, 354 Or. 837, 325 P.3d 738 (2014). In light of supplemental briefing on remand, we now reverse and remand again, but for a different reason: Magana's involuntary consent and the consequent unlawful, warrantless search of the apartment that he shared with defendant.¹

We take the facts from the evidence presented at the suppression hearing. State v. Bistrika, 261 Or.App. 710, 711, 322 P.3d 583 (2014). Law enforcement officers, all part of the Narcotics Task Force, were performing an interdiction exercise² at a Portland bus stop. Officer Kenagy approached a passenger, Rosales–Perez, as he got off the bus. Having obtained consent, the police deployed a narcotics dog and searched Rosales–Perez and his bag. At some point, Kenagy asked for identification, and Rosales–Perez gave Kenagy an identification card showing his residence at an address on Webster Road. The officers did not find any contraband.

Another officer, Devlin, saw defendant wave at Rosales–Perez from his pickup truck that was parked at the bus stop. Devlin approached defendant and explained that he was a narcotics officer. He then asked whether he knew Rosales–Perez. Because defendant did not speak English, Officer Castaneda was brought over to interpret in Spanish. Devlin and Castaneda questioned defendant, who denied knowing Rosales–Perez.

At some point, Devlin asked for defendant's identification, and defendant provided an identification card. Although defendant was apparently driving without a license, Devlin did not inform him that he was being stopped for a traffic violation and did not cite him for driving without a valid license. The officers instead obtained defendant's consent to a search of his person and his truck. Defendant stepped out of his truck, and Devlin patted him down for weapons. Officer Groshon then searched the truck with a narcotics dog, and Castaneda searched defendant and the rear of the truck. The officers did not find any contraband.

Castaneda also asked defendant where he lived. In response, defendant provided a money-order receipt, which contained the identical Webster Road address as on Rosales–Perez's identification card. Eventually, defendant admitted that he did know Rosales–Perez.

After the officers exchanged information gathered from Rosales–Perez and defendant, the officers decided that some of them should visit the Webster Road residence. Their curiosity was “piqued” because of (1) Rosales–Perez's and defendant's inconsistent statements about whether they knew each other, (2) the evidence that they both lived at the same address, and (3) their observations that defendant and Rosales–Perez had items containing images of Jesus Malverde. Kenagy and a number of other officers went to the apartment to conduct a “knock-and-talk” interview, a conversation with the occupant during which the officers remain on the threshold unless they receive permission to enter. The officers did not attempt to obtain a warrant. Kenagy testified that he had no information to believe that defendant and Rosales–Perez were involved in criminal activity.

Kenagy and Castaneda, both wearing ballistic vests, went to the Webster Road apartment building along with three other officers and a narcotics dog. Kenagy and Castaneda went up to and knocked on the door of the apartment where defendant and Magana lived. Magana cracked open the door and peeked out. When Kenagy and Castaneda identified themselves as police officers, Magana slammed the door. The officers heard some loud noises inside the apartment. The officers again knocked on the door, identifying themselves as Portland Police, and, this time, Magana opened the door and stepped out of the apartment. Magana started to close the door behind him, but before he could do so, Kenagy asked Magana to put his hands up and patted him down for weapons. Castaneda “asked for consent to search * * * the residence for narcotics and asked to use a canine to do so as well.” Magana's “calm” response was, “Okay.” Kenagy and Castaneda were followed by the three other officers and the narcotics dog. The officers found heroin in the freezer and approximately $20,000 in one of the bedrooms.

After arresting Magana, Kenagy asked Devlin to arrest defendant and Rosales–Perez, who had agreed to wait at the bus stop while Devlin and another officer waited nearby. The police took the men to the apartment, where, during questioning, defendant eventually acknowledged that he, Magana, and Rosales–Perez lived at the apartment, and defendant and Magana made self-incriminating statements. Both defendant and Magana were indicted for one count of unlawful manufacture of heroin, ORS 475.846, one count of unlawful delivery of heroin, ORS 475.850, and one count of unlawful possession of heroin, ORS 475.854.

Magana filed a motion to suppress, contending that he had not voluntarily consented to the search of his apartment. The trial court concluded that he had freely consented to the officers' entry and search of the residence, that there was no indication of any limitation on his ability to consent to a search, and that his consent extended to all areas in which the police found the drugs and cash. Magana entered a conditional guilty plea to one count of unlawful manufacture of heroin, reserving his right to appeal the court's ruling on his motion to suppress, ORS 135.335(3), and the court dismissed his other charges.

Defendant filed a separate motion to suppress evidence, in large part based on the unlawfulness of the stop. Defendant also argued that Magana did not consent or lacked authority to consent to a search of the residence. The trial court denied his motion. As to the encounter at the bus stop, it concluded that defendant's interaction with Devlin and Castaneda was initially “mere conversation” during which the officers developed reasonable suspicion that defendant had committed a traffic infraction or criminal violation by operating a motor vehicle without a valid license. The trial court reasoned that there was no constitutional violation when the officers asked for identification and defendant presented the receipt with the Webster Road address. Defendant then entered a conditional plea, ORS 135.335(3), to one count of unlawful delivery of heroin, reserving his right to appeal the court's ruling, and the court dismissed his other charges.

In Magana/Rivera, we concluded that the police had seized defendant under Article I, section 9, of the Oregon Constitution, before they obtained his identification and without reasonable suspicion, and accepted defendant's argument that his subsequent consent to the search of his vehicle was a product of his illegal seizure.

257 Or.App. at 264–68, 304 P.3d 780. Although the parties on remand have briefed the question whether defendant was seized before police obtained his identification, addressing the Backstrand trilogy of cases, our resolution of defendant's appeal no longer relies on defendant's seizure at all. That is because of our holding with respect to the unlawful search of the apartment and defendant's status as a cotenant.

In Magana/Rivera, we held that the search of the apartment was unlawful because Magana's consent to the search was not voluntarily given. We began our analysis by noting

“Oregon's longstanding principle that persons have a heightened privacy interest in their homes and ‘[t]he very purpose of [Article I, section 9, of the Oregon Constitution ] was to protect a person's home from governmental intrusions.’ State v. Martin, 222 Or.App. 138, 142, 193 P.3d 993 (

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