State v. Senin

301 Or.App. 358

456 P.3d 334

STATE of Oregon, Plaintiff-Respondent,

v.Roman Vasilyerich SENIN, Defendant-Appellant.

A165358

Court of Appeals of Oregon.

Submitted March 6, 2019.

December 18, 2019

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

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the briefs for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.

ORTEGA, P. J.

Appealing from a judgment of conviction for possession of heroin, ORS 475.854, defendant assigns error to the trial court’s denial of his motion to suppress evidence that he contends derived from (1) an unlawfully extended traffic stop and (2) an illegally conducted search of his car, both in violation of Article I, section 9, of the Oregon Constitution. We conclude, first, that the police order for defendant to get back into his car at the outset of the traffic stop did not unlawfully extend the encounter and, second, that the subsequent search of defendant’s car was validly excepted from the warrant requirement as one conducted incident to an arrest. Accordingly, the trial court properly denied defendant’s motion to suppress, and we affirm.¹

We review a trial court’s denial of a motion to suppress for legal error and are bound by that court’s findings of historical facts if there is evidence in the record to support them. State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017). In the absence of express findings, we presume that the trial court found the facts consistently with its ultimate conclusion. Id. at 166, 389 P.3d 1121. Consistently with those standards, we state the uncontroverted facts as recounted by the officers at the suppression hearing.

On the night giving rise to this matter, defendant drove into the parking lot of a Hillsboro convenience store, where Officer Weed was sitting in his patrol car. As defendant passed by, Weed observed that defendant’s car had nonfunctioning license plate lights, so he activated his overhead lights and stopped defendant. As soon as defendant pulled into a parking space, the lone passenger in the car got out and walked towards the convenience store.² The passenger never returned during the encounter. Weed parked behind defendant’s car, blocking defendant in against the store building. As defendant got out of the car, Weed observed something drop out of defendant’s lap onto the ground outside of the car; at the time, Weed believed the dropped item to be a piece of trash. Defendant started to walk back towards Weed, leading Weed to order, "Get back in your car." Weed issued the order as a safety precaution, in light of his attention being split between defendant’s movement and the passenger’s potential return. Defendant complied. Weed then approached the driver-side window to ask for defendant’s driver license, proof of insurance, and registration information. While defendant looked for the requested documents, Weed asked defendant where he was coming from. Defendant answered that he was heading from Beaverton to Portland, which did not make sense to Weed given that both those areas were east of their Hillsboro location.

By this time, Officer Mace had arrived to back up Weed. While Weed collected the information from defendant, Mace spotted a syringe cap in the passenger side of the car; he notified Weed of the discovery. Weed handed defendant’s documents to Mace and asked Mace to process the citation. While looking over the documents, Mace asked defendant whether he was diabetic. Defendant responded "no" but stated that a friend—whom he could not name—was. Mace returned to the patrol car to process the citation while Weed asked defendant for, and was denied, consent to search the car for drugs. Weed then asked for a drug-detection dog to be sent to the location.³

Eventually, Mace signaled for Weed—as the officer who initiated the traffic stop—to sign the citation. As Weed was signing the citation, he noticed a syringe lying on the ground beneath the driver’s door, where he had observed something drop from defendant’s lap earlier. The parking lot was well-lit, and the syringe was the only object lying there. The syringe lacked a cap, had a bent needle, and contained blood-like liquid residue. Based on Weed’s training and experience, users of needles for medical purposes, such as diabetes, do not leave their needles lying loose; instead, that behavior is associated with illicit drug users. Weed also knew from his training and experience that illicit drug users often leave residual substance in the syringe for later reinjection.

Instead of issuing the finished citation or otherwise interacting with defendant, Weed field-tested the syringe, which took about two minutes and yielded a presumptive-positive result for heroin. Weed approached defendant and asked him about the syringe, ownership of which defendant denied—stating that it belonged to a friend—but he eventually admitted to having dropped it. Around that time, the drug dog arrived, and Weed asked defendant to step out of the car, handcuffed him, and placed him in the back of the patrol car. The officers then let the drug dog into defendant’s car, where it alerted to the center console, on top and inside of which the officers discovered drug substance and paraphernalia. Defendant was subsequently charged with unlawful possession of heroin.

Pretrial, and as relevant to the sole assignment of error that we write to address, defendant sought to suppress the seized evidence, arguing that it was the fruit of both an unlawfully extended traffic stop and an illegally conducted car search. The trial court rejected defendant’s arguments, finding that "the detention of the defendant in the car after the stop of the car was reasonable under the circumstances of [the] stop and the quick exit of the passenger and defendant coming toward the officer." Additionally, the trial court determined that both the automobile and the search-incident-to-arrest exceptions to the warrant requirement justified the search of defendant’s car. Accordingly, the court denied defendant’s motion to suppress, and a unanimous jury ultimately convicted defendant as charged.

On appeal, defendant again argues that the seized evidence was the fruit of both an unlawfully extended traffic stop and an illegally conducted car search. As to the first contention, defendant concedes that the initial stop was lawful; however, defendant posits, Weed impermissibly extended that otherwise lawful stop by ordering him to get back into his car at the outset of the stop without valid officer-safety concerns. As to the second contention, defendant maintains that the officers lacked probable cause to search his car and that, in any event, neither the automobile exception nor the search-incident-to-arrest exception justified the warrantless search. Both contentions lack merit.

Article I, section 9, allows an officer to lawfully stop a person for a noncriminal traffic violation to investigate the offense and issue a citation without a warrant. State v. Rodgers/Kirkeby , 347 Or. 610, 623-24, 227 P.3d 695 (2010). However, the officer’s activities during the stop must "be reasonably related to that investigation and reasonably necessary to effectuate it. If the officer’s activities exceed those limits, then there must be an independent constitutional justification for those activities." State v. Watson , 353 Or. 768, 781, 305 P.3d 94 (2013) ; see also State v. Arreola-Botello , 365 Or. 695, 712, 451 P.3d 939 (2019) (extending the same limits to investigative inquiries). Officer safety is one recognized constitutional justification for police activities unrelated to the traffic investigation at hand. See State v. Bates , 304 Or. 519, 524, 747 P.2d 991 (1987) (discussing the officer-safety exception to the warrant requirement). Here, defendant argues that Weed’s order for him to get back into his car at the outset of the stop unlawfully extended the stop but was not justified by valid officer-safety concerns. However, our conclusion that Weed’s order was reasonably related to the traffic investigation, as explained below, obviates the need to reach that argument. See Rodgers/Kirkeby , 347 Or. at 624, 227 P.3d 695 ("Police conduct during a noncriminal traffic stop does not further implicate Article I, section 9, so long as the detention is limited and the police conduct is reasonably related to the investigation of the noncriminal traffic violation.").

Defendant relies on two cases in advancing his contention that Weed issued the order as an alternative to proceeding with the traffic investigation and thereby unlawfully extended the stop. In State v. Reich , 287 Or. App. 292, 294, 403 P.3d 448 (2017), while the car owner was looking for proof of insurance, the officer asked him for consent to search the car. After the car owner consented and, along with the defendant, got out of the car unprompted, the officer asked them for consent to search their persons. Id. at 294-95, 403 P.3d 448. We concluded that the officer’s request for consent to conduct the personal searches unlawfully extended the traffic stop, because "the officers switched their focus to investigate an unrelated matter—the crime of possession of a controlled substance—as an alternative to going forward with the next step in processing the traffic violation." Id. at 302, 403 P.3d 448 (citation and quotations omitted). And in State v. Steffens , 250 Or. App. 742, 747-48, 282 P.3d 888 (2012), we held that the officer unlawfully extended the stop when he inquired, unrelatedly,...