State v. Shupe

276 Or.App. 496

368 P.3d 41

STATE of Oregon, Plaintiff–Respondent,

v.Scott Que SHUPE, Defendant–Appellant.

0900189CR

A152199.

Court of Appeals of Oregon.

Argued and Submitted Jan. 21, 2015.

Decided Feb. 18, 2016.

Leland R. Berger, Portland, argued the cause and filed the brief for appellant.

Jamie Contreras, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General.

Before LAGESEN, Presiding Judge, and DUNCAN, Judge, and FLYNN, Judge.^*

LAGESEN, P.J.

A traffic stop led to the discovery of four pounds of marijuana in defendant's car. That discovery led to two charges against defendant: one for delivery of marijuana, ORS 475.860, and one for possession of marijuana, ORS 475.864. After a bench trial, a judge convicted defendant of those charges. Defendant appeals, assigning error to three rulings by the trial court: (1) the denial of defendant's motion to suppress the marijuana and other evidence discovered in defendant's car; (2) the granting of the state's motion in limine to exclude evidence of defendant's Washington State business license to dispense marijuana, defendant's permit to legally resell marijuana in Washington State, receipts for cash proceeds from defendant's Washington marijuana dispensary, and a letter from defendant's physician verifying that defendant could legally possess marijuana in Washington State, both as a caregiver and patient; and (3) the denial of defendant's motion to merge the guilty verdict for marijuana possession with the guilty verdict for marijuana delivery. For the reasons that follow, we affirm.

MOTION TO SUPPRESS

Because a ruling in defendant's favor on his motion to suppress would necessitate a reversal of both convictions, we turn first to defendant's challenge to the trial court's denial of that motion. In that motion, defendant argued that the police officer who stopped him had neither reasonable suspicion that defendant was committing the crime of driving under the influence of intoxicants, ORS 813.010, nor probable cause to believe that defendant had committed the traffic violation of failure to maintain his lane, ORS 811.370,¹ and, consequently, that the stop violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court concluded that the officer had reasonable suspicion to stop defendant for driving under the influence of intoxicants and, based on that conclusion, denied the motion to suppress. We review to determine whether the trial court's factual findings are supported by constitutionally sufficient evidence in the record and whether the trial court correctly applied applicable principles of law, State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993), and affirm the trial court's ruling.

Consistently with our standard of review, we draw our statement of historical facts from the trial court's explicit findings, to the extent that the evidence in the record supports those findings. To the extent that the trial court did not make express findings on a particular point, we state the facts in a manner consistent with the trial court's ultimate conclusion, so long as the record supports that view of the facts. State v. Regnier, 229 Or.App. 525, 527, 212 P.3d 1269 (2009) (citing Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968) ).

On August 21, 2009, at 2:00 p.m., Oregon State Police Trooper Prevett stopped defendant's car as it traveled north on Oregon Highway 97. Prevett had observed defendant's car drifting between the center line and the fog line. Although Prevett could not tell if defendant ever crossed the center line, he saw the passenger side tires of defendant's car either touch or cross the fog line. Prevett began to follow defendant and, as he caught up to defendant over the course of several miles, he saw defendant continue to weave in his lane and cross the fog line at least two more times. Prevett knew from his training that such conduct could be a sign of driving under the influence of intoxicants, and thought that his observations of defendant's driving gave him both probable cause to believe that defendant had committed the traffic violation of failing to maintain his lane, ORS 811.370, and reasonable suspicion that defendant was committing the crime of driving under the influence of intoxicants, ORS 813.010.

Almost immediately after approaching defendant's vehicle, Prevett noticed the smell of marijuana coming from defendant's car. Based on that smell, Prevett asked defendant how much marijuana he had and whether defendant had a medical marijuana card. In response, defendant gave Prevett his Washington State medical marijuana card.

Prevett noticed a small bag on the front seat and asked if he could see it. Defendant showed Prevett that small bag, which contained marijuana, and a jar with marijuana in it.

Prevett requested consent to search defendant's car, but defendant refused to grant consent. Prevett searched the car anyway and discovered four pounds of marijuana, which he seized. After Prevett seized the marijuana, defendant explained that he had purchased the marijuana in Bend, Oregon, and was transporting it to Washington where he would "dispense" it.

The trial court concluded that Prevett had reasonable suspicion to stop defendant for driving under the influence of intoxicants. The trial court did not address Prevett's other asserted basis for the stop—defendant's failure to drive within a lane. Before us, defendant reiterates the arguments he made to the trial court. We, like the trial court, conclude that Prevett's observations of defendant's driving gave him reasonable suspicion to stop defendant for driving under the influence of intoxicants.

An officer has reasonable suspicion to stop a suspect to investigate a crime when (1) the officer subjectively believes that the suspect may have committed a crime, or is about to commit one; and (2) that belief is objectively reasonable under the totality of the circumstances. ORS 131.605(5) ; ORS 131.615(1) ; State v. Mitchele, 240 Or.App. 86, 90–91, 251 P.3d 760 (2010). However, "[r]easonable suspicion ‘does not require that the facts as observed by the officer conclusively indicate illegal activity but, rather, only that those facts support the reasonable inference of illegal activity by that person.’ " State v. Dampier, 244 Or.App. 547, 551, 260 P.3d 730 (2011) (quoting State v. Hiner, 240 Or.App. 175, 181, 246 P.3d 35 (2010) ). Here, defendant does not dispute that Prevett subjectively believed that defendant may have been driving under the influence of intoxicants. Accordingly, the legal issue for us is whether Prevett's subjective belief was objectively reasonable, in the light of "the objective facts known to the officer at the time of the stop." State v. Frias, 229 Or.App. 60, 64, 210 P.3d 914 (2009) (internal quotation marks and citation omitted).

We previously have concluded—on several occasions—that a police officer's observation of a vehicle weaving in its own lane provides a sufficient basis to reasonably believe that the driver of the vehicle is operating the vehicle under the influence and to stop the vehicle for further investigation. State v. Kusaj, 174 Or.App. 575, 579–80, 28 P.3d 1182 (2001), rev. den., 333 Or. 400, 42 P.3d 1244 (2002) ; State v. Gilbertz, 173 Or.App. 90, 94, 20 P.3d 252 (2001) (holding that officer who witnessed driver drifting within a lane at least five times at 3:44 a.m. had reasonable suspicion to stop driver for driving under the influence of intoxicants); State v. Wright, 94 Or.App. 468, 470–71, 765 P.2d 1251 (1988), rev. den., 307 Or. 514, 770 P.2d 595 (1989) (concluding that officer had reasonable suspicion that driver was driving under the influence of intoxicants based on observation of car's "jerking" erratically back and forth across lane); State v. Bailey, 51 Or.App. 173, 175, 624 P.2d 663, rev. den., 291 Or. 1, 631 P.2d 340 (1981) (explaining that officer's "observation of vehicle weaving in its own lane for a substantial distance" gave officer reasonable suspicion to stop driver for driving under the influence of intoxicants). In view of that case law, we are persuaded that Prevett's observations of defendant's car, together with Prevett's knowledge that such driving behavior may indicate impairment, made it reasonable for Prevett to believe that defendant might be driving under the influence of intoxicants. Although defendant relies extensively on United States v. Colin, 314 F.3d 439 (9th Cir.2002), to argue for a different conclusion, we are neither bound by that opinion nor persuaded that it would dictate a different conclusion here.² Accordingly, we uphold the trial court's denial of defendant's motion to suppress.

STATE'S MOTION IN LIMINE

Defendant next assigns error to the trial court's grant of the state's motion in limine to exclude documentary and testimonial evidence related to defendant's Washington marijuana business license, Washington marijuana reseller permit, receipts for the cash proceeds from defendant's dispensary in Washington, and a letter from defendant's physician verifying defendant's ability to possess marijuana legally in Washington State both as a caregiver and patient.³ In its motion, the state argued that the evidence relating to defendant's Washington business and licenses either was not relevant and, thus, subject to exclusion under OEC 401, or that its probative value was substantially outweighed by the danger of unfair prejudice or confusion, so as to render it subject to exclusion under OEC 403.

Defendant opposed the motion. Defendant explained that his theory of defense was that he intended to deliver the marijuana that was in his car to his patients in Washington, where defendant was authorized to operate a marijuana dispensary and that, as a result, "there is no crime here" in Oregon. Defendant contended that evidence of his...