State v. Mock

310 Or.App. 454

485 P.3d 295

STATE of Oregon, Plaintiff-Respondent,

v.Evan Allen MOCK, aka Evan Alen Mock, Defendant-Appellant.

A169059

Court of Appeals of Oregon.

Submitted May 28, 2020

April 7, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

SHORR, J.

Defendant appeals from a judgment of conviction for conspiracy to deliver oxycodone, ORS 161.450(2)(b). Following a traffic stop, detectives initiated a criminal drug investigation, seized defendant's phone, and subsequently searched that phone pursuant to a search warrant, resulting in defendant's indictment for the above crime. Although defendant raises three separate assignments of error, we only substantively address one: defendant's claim that the trial court erred when it denied his motion to suppress evidence obtained by the extension of the traffic stop.¹ Defendant argues that the detectives abandoned their traffic-infraction investigation and began a criminal drug investigation without reasonable suspicion that defendant was engaged in criminal drug activity, in violation of Article I, section 9, of the Oregon Constitution. We conclude that the court erred in denying defendant's suppression motion, because the criminal drug investigation was not supported by reasonable suspicion. All evidence discovered as a result of that investigation, including derivative evidence discovered when defendant's phone was seized and searched, was inadmissible. Accordingly, we reverse and remand.

We review the trial court's ruling denying defendant's motion to suppress for errors of law. State v. Maciel-Figueroa , 361 Or. 163, 165, 389 P.3d 1121 (2017). In doing so, we are bound by the court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). Where the court did not make express findings, and there is evidence from which the court could have found a fact in more than one way, we presume that the court decided the facts consistently with its ultimate conclusion. Id. We summarize the facts in accordance with those standards.

In November 2017, defendant reported to the La Grande Police Department that he and several of his friends had been the victims of a series of robberies. For reasons that are not clear on this record, police doubted the veracity of those reports. The department enlisted the help of the Union County Sheriff's Office, who conducted a surveillance operation targeting defendant's house. Specifically, Detectives McKaig and Sutten surveilled defendant's house over the course of a two-week period, watching the house at night for at most six hours at a time. McKaig testified as to his observations:

"So as we watched the residence, we noticed traffic coming and going, meaning individuals showing up, arriving, and whether they were staying quite short durations of time, which is consistent with what we know from surveillance to be consistent with drug activity. People come, they show up, and they go. And more specifically, the people that were coming and going were people that we knew to be in the drug world or the drug culture of Union County."

McKaig testified that a "known drug user" was

"[s]omeone that we've either have knowledge specific, co-obrative [sic ] knowledge that we can corroborate either ourselves, or that they've previously been convicted of drug crimes. And whether or not—it doesn't—I would say where they've been convicted of crimes, but that doesn't mean that that is the say all for us in the drug task force. If we have specific knowledge that we were able to corroborate or we've watched them buy drugs, or we've purchased drugs from them with a confidential informant, that's how we know they're a drug user."

Later in December of that year, McKaig and Sutten were conducting unrelated surveillance at around 7:00 p.m. when they happened to recognize defendant driving a vehicle that was headed out of town on Interstate 84. The detectives left their position and began following defendant on the interstate, staying about a mile behind him to avoid detection.² The detectives were in plain clothes and were travelling in an unmarked police car. After traveling about five miles, defendant left the interstate and pulled into the parking lot of a state park. The detectives did not notice any other vehicles in that parking lot. The detectives continued past the exit, turned around, and "made a position that we could still see if another vehicle showed up, or lights at least if—if they were down there meeting somebody, in hopes of maybe identifying who they may be." However, no other vehicles arrived at the parking lot, and within a "couple minutes, tops," defendant pulled back onto the interstate in his original direction of travel. The detectives continued following him, observed several traffic violations, and initiated a traffic stop.

Both detectives believed that defendant's brief interstate exit and reentrance was a "heat check," or a maneuver designed to "avoid law enforcement detection or to discover law enforcement." When asked to explain what he meant by "heat check," McKaig testified that,

"when we're following individuals that are involved in the drug community—specifically, our small community, we have—the vehicle that we were in at that time, it—we've had that vehicle for 12 years and we've—we've been known in that vehicle. Like we—we leave our office and everyone knows that we've left our office at that time. So what happens more often than not with us, is we'll start to drive behind somebody, trying to stay back, but they either see us back there and they'll start to turn corners and let it be known that they know we're there.

"So—or if they don't know if we're there, it's just a strategy of a drug user or dealer that may have something on them to avoid law enforcement detection or to discover law enforcement; so they will take an exit or take a turn on a block and loop around behind the people that were behind them. If they look in their rearview mirror and suspect a car, they're going to loop around that person to see if the car makes the same turns they do."

Upon initiating the traffic stop, McKaig approached defendant's window, advised him that he had been stopped for certain traffic violations, and requested his license, insurance, and registration. McKaig testified that, at that time, he observed certain "drug indicators." First, McKaig testified that he looked in the windows and observed "miscellaneous items" but "no luggage or anything like that." Second, defendant appeared to be extremely nervous. Specifically, McKaig observed that defendant was "having stomach tremors,"³ smoking cigarettes, and "not making eye contact." While McKaig acknowledged that most people "get nervous when they're stopped by police," he believed that defendant's nervousness was "elevated" beyond the norm. At that point, McKaig returned to his vehicle, where he ran a record check of defendant and his passenger. Those checks confirmed that defendant's driving privileges were suspended. However, the detectives did not initiate writing any citations. McKaig returned to defendant's window and asked defendant about his travel plans.

Defendant responded that he and his passenger were headed to Wildhorse Casino in Umatilla County, which the officer believed to be a common location for drug deals in that area. Specifically, McKaig testified that,

"here in Union County, I would—I would surmise that 99 percent of our illegal narcotics come from Umatilla County. It's kind of the mecca of Eastern Oregon's drug culture and most of the dealers are from there; so most all of our drug users and/or dealers will travel to Umatilla County, specifically Wildhorse.

"And the reason they go to Wildhorse is, one, it's a really busy casino and truck plaza. But, two, it's on a reservation in which most law enforcement is not there.

"And I've—we've had numerous investigations where that's where the meet spot is, is Wildhorse Resort and Casino."

Defendant indicated he planned to spend the night at the casino, which McKaig found suspicious because defendant did not have any luggage visible in the vehicle. McKaig asked defendant who he was going to meet at the casino, but defendant did not answer. Around that time, Sutten told McKaig that he had observed small rolls of aluminum foil in defendant's car, which McKaig testified are used for pill or heroin packaging and "to smoke or take hits off of the aluminum foil." McKaig asked defendant if he had any drugs or weapons in the car. Defendant denied having those items, but McKaig "noticed a behavioral change when I asked specifically about heroin and—and meth." McKaig asked defendant if he thought a drug-detection dog would alert on his car, to which defendant responded, "It shouldn't." McKaig found that answer suspicious because it was not a definitive "no."

The detectives radioed to the Oregon State Police and requested their drug-detection dog. It took "a matter of minutes" for the dog to arrive, during which time defendant used his cell phone to call his girlfriend to secure a ride and the transport of his vehicle. The dog alerted and the detectives searched defendant, his passenger, and his vehicle.⁴ A scale, "snort tubes," and drug residue were found in the car, and $611 in cash was found on defendant.⁵ Finally, the detectives seized defendant's phone, because McKaig thought there was probable cause to believe that the phone would contain evidence of drug-related communications, and because McKaig thought that exigent circumstances necessitated a warrantless seizure because the evidence could be easily...