State v. Senin ( 2019 )

358
Submitted March 6, affirmed December 18, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROMAN VASILYERICH SENIN,
Defendant-Appellant.
Washington County Circuit Court
16CR26172; A165358
456 P3d 334
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 sup-
press 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. Held: (1) 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 (2) 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.
Affirmed.
Kirsten E. Thompson, Judge.
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.
Affirmed.
Cite as 301 Or App 358 (2019) 359
ORTEGA, P. J.
Appealing from a judgment of conviction for posses-
sion 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 sub-
sequent 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 defen-
dant’s motion to suppress, and we affirm.1
We review a trial court’s denial of a motion to sup-
press 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 P3d
1121 (2017). In the absence of express findings, we presume
that the trial court found the facts consistently with its ulti-
mate conclusion. Id. at 166. Consistently with those stan-
dards, 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 defen-
dant passed by, Weed observed that defendant’s car had non-
functioning 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
1
We affirm without discussion the remaining two assignments of error that
defendant raised in his opening brief. We reject on the merits the additional
assignment of error that defendant raised in his supplemental brief asserting
that the trial court plainly erred by instructing the jury that it could return a
nonunanimous verdict.
2
The record is unclear as to whether defendant stopped his car in response
to Weed’s police activity. It is also unclear whether the passenger was aware of
Weed’s presence, although the record reflects that defendant, when he first drove
into the parking lot, had seen Weed.
360 State v. Senin
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 defen-
dant’s driver license, proof of insurance, and registration
information. While defendant looked for the requested doc-
uments, 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
3
Although the precise sequence of events relating to the officers’ inquiries
and handling of the citation and to defendant’s production of documents is unclear
from the record, that is inconsequential to our analysis, because defendant does
not posit that any police conduct during that exchange unlawfully extended the
traffic stop. Rather, defendant contends only that Weed’s order at the outset of the
stop caused the unlawful extension.
Similarly, because defendant does not advance the argument, we do not
address whether the officers’ inquiries were reasonably related to the traffic stop
or justified by a constitutional basis independent of that underlying the stop, as
the Supreme Court recently announced is required when an officer makes “inves-
tigatory inquiries” during a traffic stop. State v. Arreola-Botello, 365 Or 695, 712,
451 P3d 939 (2019) (abrogating the “unavoidable lull” doctrine).
Cite as 301 Or App 358 (2019) 361
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 con-
tained 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 eventu-
ally 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 defen-
dant’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 sup-
press 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 passen-
ger 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 require-
ment justified the search of defendant’s car. Accordingly, the
court denied defendant’s motion to suppress, and a unani-
mous jury ultimately convicted defendant as charged.
362 State v. Senin
On appeal, defendant again argues that the seized
evidence was the fruit of both an unlawfully extended traf-
fic stop and an illegally conducted car search. As to the first
contention, defendant concedes that the initial stop was law-
ful; 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 warrant-
less search. Both contentions lack merit.
Article I, section 9, allows an officer to lawfully
stop a person for a noncriminal traffic violation to inves-
tigate the offense and issue a citation without a warrant.
State v. Rodgers/Kirkeby, 347 Or 610, 623-24, 227 P3d 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 constitu-
tional justification for those activities.” State v. Watson, 353
Or 768, 781, 305 P3d 94 (2013); see also State v. Arreola-
Botello, 365 Or 695, 712, 451 P3d 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 P2d 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, obvi-
ates the need to reach that argument. See Rodgers/Kirkeby,
347 Or at 624 (“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 reason-
ably 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
Cite as 301 Or App 358 (2019) 363
proceeding with the traffic investigation and thereby unlaw-
fully extended the stop. In State v. Reich, 287 Or App 292,
294, 403 P3d 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 offi-
cer asked them for consent to search their persons. Id. at
294-95. 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 for-
ward with the next step in processing the traffic violation.”
Id. at 302 (citation and quotations omitted). And in State v.
Steffens, 250 Or App 742, 747-48, 282 P3d 888 (2012), we
held that the officer unlawfully extended the stop when he
inquired, unrelatedly, about possession of weapons rather
than continue gathering the information necessary to pro-
cess the bicycle infraction.
The cases on which defendant relies are readily dis-
tinguishable. Here, Weed’s order for defendant to get back
into his car occurred early in the encounter and facilitated
the traffic investigation, which required Weed to obtain doc-
uments from defendant. In contrast, in Reich and Steffens,
the officer’s conduct occurred partway through or near the
end of the encounter and deviated from the purpose of the
traffic investigation. Weed’s order did not change the nature
of the investigation—from traffic to criminal—in any per-
ceivable way and, without more, is no less permissible than
a routine request for cooperation. Moreover, neither as a
temporal nor practical matter did Weed’s order lengthen
the duration of the stop, because defendant inevitably would
have had to reenter his car to retrieve the requested docu-
ments. Thus, we conclude that Weed’s order was reasonably
related to and did not constitute an unlawful extension of
the traffic stop.
We next address whether the search of defen-
dant’s car was supported by probable cause, as required
by Article I, section 9. Objective probable cause exists if
the totality of the circumstances would “lead a reasonable
364 State v. Senin
person to believe that seizable things will probably be found
in the location to be searched.” State v. Anspach, 298 Or 375,
381, 692 P2d 602 (1984); State v. Miller, 265 Or App 442,
446, 335 P3d 355 (2014). Defendant argues that no proba-
ble cause existed here, “because needles are not unlawful to
possess and there is no basis to say that they were in defen-
dant’s possession.” We conclude, however, that the totality of
the circumstances did give rise to probable cause that justi-
fied the search of defendant’s car.
To be more specific, the facts before the officers when
they decided to search defendant’s car included that, while
getting out of his car, defendant had dropped an uncapped
syringe that had attributes consistent with illegal drug
use and inconsistent with legal medical use (loose needle,
bent sharp, blood-like liquid residue); defendant stated that
he was not diabetic and could not name the friend who he
asserted was diabetic; the syringe field-tested positive for
heroin; a syringe cap was in the passenger side of the car;
and defendant gave an illogical response when asked where
he was coming from. Those facts, viewed as a whole, gave
rise to probable cause for the search.
Nevertheless, to conduct a warrantless search,
Article I, section 9, requires more than probable cause;
an exception to the warrant requirement must also apply.
Here, the trial court concluded, and the state maintains on
appeal, that both the automobile and the search-incident-to-
arrest exceptions apply to justify the search of defendant’s
car. In contrast, defendant contends that neither exception
applies. Because we conclude, as we discuss below, that the
officers lawfully conducted the warrantless search incident
to arresting defendant, we need not consider whether the
automobile exception applied.
“A warrantless search incident to arrest can be
made for any of three purposes: (1) to protect a police officer’s
safety; (2) to prevent the destruction of evidence; or (3) to
discover evidence of the crime of arrest.” State v. Mazzola,
356 Or 804, 811, 345 P3d 424 (2015) (citation omitted). “To
pass constitutional muster, such a search must relate to a
crime that there is probable cause to believe the arrestee
has committed, and it must be reasonable in scope, time,
Cite as 301 Or App 358 (2019) 365
and intensity.” Id. at 811-12. As an initial matter, we note
that the parties do not dispute that the search in this case
was conducted to discover evidence of the crime of arrest.
And, as we discussed above, the search was supported by
probable cause. Lastly, defendant forwards no specific argu-
ment challenging the reasonableness of the search in terms
of scope, time, or intensity. Instead, defendant makes only
the narrow argument that a search incident to arrest con-
ducted to discover evidence of the crime of arrest must meet
a fourth requirement of “exigency” and that no exigency
existed here.
As defendant acknowledges, the majority in State
v. Krause, 281 Or App 143, 146, 383 P3d 307 (2016), rev den,
360 Or 752 (2017), rejected that proposition, stating that exi-
gency relates to only the first two purposes of the search-
incident-to-arrest exception. In urging us to reject that
precedent, defendant relies solely on case law that the court
had considered in Krause and on the dissent’s rationale for
disagreeing with the majority. But, in the absence of new
and developed arguments in support of defendant’s position,
we decline to revisit the Krause decision.
As the law stands, a warrantless search for the
purpose of discovering evidence of the crime of arrest “may
be justified even if the defendant has been removed from
the area in which an officer believes that evidence may
be located[,]” so long as “the evidence reasonably could be
found in that area and the search is otherwise reasonable
in time, scope, and intensity.” Id. at 146 (citations omitted).
Here, the search was supported by probable cause (as dis-
cussed above), occurred immediately after defendant was
placed under arrest, and was confined to the center con-
sole area to which the drug dog had alerted. Considering
those circumstances, the warrantless search of defendant’s
car was incident to his arrest and comported with Article I,
section 9.
In sum, the police order for defendant to get back
into his car at the outset of the stop was reasonably related
to the traffic investigation and did not render the stop unlaw-
ful. Additionally, the warrantless search of defendant’s car
was justified by the search-incident-to-arrest exception.
366 State v. Senin
Accordingly, the trial court did not err by denying defen-
dant’s motion to suppress.
Affirmed.