State v. Bailey

Citations: 924 P.2d 833; 143 Or. App. 285; 1996 Ore. App. LEXIS 1331Docket: 94CR1611 and 94CR1957 CA A87139 Control and CA A88034

Court: Court of Appeals of Oregon; August 28, 1996; Oregon; State Appellate Court

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Timothy Robert Bailey appeals his conviction for possession of a controlled substance under ORS 475.992, challenging the denial of his motion to suppress evidence obtained during a search. The Court of Appeals of Oregon vacated the conviction and remanded the case for further findings on the legality of the search. On September 11, 1994, Officer Gwartney observed Bailey acting suspiciously near a business and reported it to Officer Walker, who subsequently stopped Bailey’s truck for a traffic violation (lack of a license plate light). During the stop, Walker discovered a loaded pistol in the truck, which Bailey acknowledged was his. After confirming the weapon was not stolen, Walker allowed Bailey to leave but retained the gun while seeking clarification on Bailey's criminal record. Before receiving this information, Walker asked for and obtained Bailey's consent to search his truck and person. There is ambiguity regarding the timing of when Walker learned of Bailey's prior felony conviction relative to the search, with conflicting testimonies suggesting the search may have occurred before or after Walker received confirmation of the conviction. The trial court's findings do not clarify this sequence, which is critical for assessing the legality of the search.

Hermann testified regarding the sequence of events during a police interaction involving Mr. Bailey. Hermann confirmed he witnessed the patdown and believed the request for consent to search the vehicle followed shortly after, although he was uncertain about the exact timing due to a prior phone call. He indicated he might have informed Officer Walker of Bailey's felony conviction either before or during the request for consent to search, but he was not certain if this information was shared before or after the search began.

The trial court determined that Hermann’s testimony lacked clarity on when the felony conviction was disclosed to Officer Walker. It found that Walker learned of the felony after requesting consent to search, just as the search was about to start. During the search, police found marijuana residue and methamphetamine in a black bag, leading to Bailey's arrest for possession of a controlled substance.

Bailey moved to suppress the evidence, contending that the initial stop lacked reasonable suspicion and that his consent was invalid due to an unlawfully extended stop caused by Walker's retention of Bailey's gun. The trial court denied the motion, ruling that Walker had reasonable suspicion to stop Bailey for both observed conduct and a traffic infraction. It concluded that Walker intended to conclude the stop and seek voluntary consent to search, adhering to his training protocols. The court found no evidence of coercion regarding the consent, which was deemed freely given.

On appeal, Bailey did not contest the reasonable suspicion for the stop but argued that the search was unlawful because Walker’s actions, particularly retaining the gun while stating Bailey was free to go, unlawfully extended the stop. Bailey contended that Walker's request for consent exceeded the scope of the stop, warranting suppression of the evidence found during the search, referencing relevant Oregon statutes and a precedent case.

The state argues the search was lawful for two reasons: first, Walker's retention of the gun did not prolong the stop, meaning the stop ended before Walker requested consent to search; second, if the stop was ongoing, Walker's retention of the gun eliminated any illegality due to the discovery of the defendant's prior felony conviction, which provided probable cause for arrest as a felon in possession of a firearm. However, the state's first argument conflicts with its earlier position, where it conceded that if Walker retained the gun, the defendant was not free to go, and thus the evidence (drugs) should be suppressed. The trial court found that Walker retained the gun but ruled that consent for the search was still lawfully obtained. It is unclear if the court concluded that retention of the gun did not extend the stop or if the request for consent was permissible during the ongoing stop. The state focuses its defense on the first rationale, which it previously conceded, without addressing the second. The court, acting in its capacity as an error-correcting body, must assess whether the trial court erred in denying the suppression motion based on the premise that Walker's retention of the gun extended the stop. The court concludes that Walker's retention of the gun did indeed extend the stop, which was initiated due to suspicion of criminal activity and a traffic infraction, making relevant provisions of ORS chapter 131 and ORS chapter 810 applicable. ORS 131.605 defines a "stop" as a temporary restraint of a person's liberty by a police officer lawfully present.

ORS 131.615 permits a peace officer to stop a person based on reasonable suspicion of criminal activity and to make a limited inquiry related to that suspicion. ORS 810.410(3)(b) allows an officer to stop and detain a person for a traffic infraction to conduct relevant investigations and issue citations. Although ORS chapter 810 does not define "stop," case law establishes that a "stop" occurs when law enforcement restricts an individual's liberty through physical force or a show of authority. A reasonable person in the circumstances would believe they are not free to leave.

In the examined case, the state's argument claimed that after Walker informed the defendant he could go, the stop had ended, suggesting that the retention of the defendant's gun did not constitute a restraint on freedom. The state referenced the case of State v. Hammond, where the retention of a fishing license did not amount to a stop. However, this case differs factually and legally, as it focused on whether the retention of property impacted a prior stop rather than if it constituted a stop itself. 

The court concluded that the retention of the gun by Walker extended the initial stop, emphasizing that a reasonable person in the defendant's position would perceive their freedom of movement as significantly restricted until the officer either returned the gun or issued a receipt for it. This conclusion is based on common experience and does not find direct support in existing Oregon law, marking it as a matter of first impression.

The stop involving Walker was ongoing when he requested consent to search, which the state acknowledges exceeded the lawful scope of the stop, violating ORS 131.615 and ORS 810.410(3)(b). Walker's request did not relate to the reasons for the initial stop; he specifically sought permission to search for controlled substances. The state concedes that any evidence obtained from this consent search should be suppressed based on precedents like Dominguez-Martinez and State v. Harris. Consequently, the trial court incorrectly deemed the search valid. However, the state argues that even if the consent was invalid, the search was justified as incident to a lawful arrest, claiming probable cause existed prior to the arrest.

The determination of whether the search can be classified as incident to arrest hinges on conflicting testimonies from Officers Walker and Hermann about when Hermann informed Walker of the defendant's prior felony conviction. The trial court's findings on this matter are unclear, stating that Walker learned of the felony either just before or shortly after the search commenced. This timing is crucial for establishing if probable cause existed to justify the search. 

Due to these ambiguities, the conviction for possession of a controlled substance is vacated, and the case is remanded for further findings. The trial court must ascertain when Hermann informed Walker of the felony conviction relative to the search. Should the court find that Walker had this information before the search and that other conditions for a search incident to arrest were met, the conviction may be reinstated. Conversely, if Walker was informed after the search began, the evidence will be suppressed, leading to a new trial for the defendant and potential resentencing on other charges.

Conviction for possession of a controlled substance has been vacated and the case remanded for further proceedings. Key points include:

1. Walker found the response to his inquiry unclear, particularly regarding the status of prior felony convictions.
2. There is ambiguity surrounding Hermann’s use of a pay phone, with indications of aerial interference disrupting radio communications.
3. The defendant claimed Walker returned a gun to him, but the trial court accepted Walker's account.
4. The defendant was also convicted of being a felon in possession of a firearm (ORS 166.270) but does not contest that conviction.
5. The defendant does not argue that Walker’s request for consent to search was unlawful even if the retention of his gun did not extend the stop, referencing previous case law where requests for consent were considered separate from the original stop.
6. Appellate courts are not strictly bound by state concessions of error unless unusual circumstances arise.
7. A "seizure" under the Oregon Constitution occurs if a law enforcement officer significantly restricts an individual’s liberty or if the individual reasonably believes such an event has occurred.
8. The trial court did not determine if a fishing license had been retained in a related case.
9. The court is hesitant to engage in hypotheticals regarding the retention of property, emphasizing that a pistol is significant compared to lesser items.
10. The state argues that the retention of certain items, such as a gun, affects the legality of a stop, while the retention of less essential items would not.