State v. Bonham

DEITS, J.

The state appeals from an order granting defendant’s motion to suppress evidence found in the search of his vehicle. ORS 138.060(3). The issue is whether the defendant’s consent to the officer’s request to search the vehicle was properly obtained. We reverse.

We take the facts from the trial court’s findings of fact and draw such inferences from those facts as are consistent with the trial court’s ultimate conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Oregon State Police Officer Ayres activated the overhead lights on his patrol vehicle and stopped defendant on Interstate 5 just north of Eugene for equipment violations. Defendant does not argue that the initial stop was invalid. Defendant immediately told Ayres that his license had been suspended and gave him an Oregon identification card. Ayres did a records check and then cited him for driving while suspended, ORS 811.175, and driving without insurance, ORS 806.010. He then returned defendant’s identification card and told him that he was free to go. At that time, Ayres had turned off the overhead lights on his car.

Before defendant started to leave, Ayres asked him for consent to search under the tarp covering the bed of his pickup. Defendant agreed and lifted the tarp. Ayres saw engine parts and other machinery in the truck bed. He then requested defendant’s permission to search the cab of the vehicle. Defendant opened the passenger door and Ayres saw a magazine clip, two bags of marijuana and a jacket with a clear plastic bag protruding from a pocket. A powder residue coated the bag. Responding to Ayres’ inquiry, defendant admitted that it contained methamphetamine. Sergeant Wolf then arrived at the scene. Ayres continued his search and discovered some phone numbers and a large amount of cash. He then arrested defendant.

The trial court found:

“5. At the time of making [the request to search] Trooper Ayres did not have any reasons to suspect that there were any criminal activities going on.

“6. In requesting consent to search after returning Defendant’s I.D. and giving him the citations, Trooper Ayres was following a policy established by the Oregon State Police.

“7. The only coercion involved in the officer’s request for Defendant’s consent to search was the inherent coercion involved in a traffic stop due to the authority of the police officer, his uniform, and the flashing warning lights.”

The trial court granted the motion to suppress on the ground that the officer lacked authority to ask defendant for consent to search his vehicle.

The state argues that the trial court erred in granting defendant’s motion to suppress because Ayres had authority to ask defendant for consent to search and because the consent was voluntarily given. We agree. The state is required to prove by a preponderance of the evidence that consent was voluntarily and knowingly given. State v. Stevens, 311 Or 119, 806 P2d 92 (1991). We examine the totality of the circumstances to determine if consent was the product of defendant’s free will rather than the result of coercion, express or implied. State v. Kennedy, 290 Or 493, 624 P2d 99 (1981); State v. Mercado, 105 Or App 582, 805 P2d 744, rev den 311 Or 482 (1991). We conclude here that the state did prove by a preponderance of the evidence that defendant’s consent was voluntary. The stop took place in the afternoon on a well-traveled highway. At the time that consent was obtained, only one officer was present. The officer parked behind the defendant’s vehicle and did not block him in. During the course of the stop, he turned off his overhead lights. Ayres returned defendant’s identification to him and told him that he was free to go before he asked for consent to search.

Defendant does not argue that he was coerced into giving his consent. Rather, he contends that Ayres’ request for consent exceeded the permissible scope of a traffic stop and that, under the Supreme Court’s decision in State v. Porter, 312 Or 112, 817 P2d 1306 (1991), the consent was invalid. We do not believe that Porter is controlling here. First, in contrast to Porter, the request for consent here occurred after a traffic stop had ended. As the trial court found, Ayres returned defendant’s identification and told defendant that he was free to go.¹ It was after that that Ayres asked for consent to search.

Although the dissent urges that Porter applies, even if the traffic stop had ended, the language of that case simply does not support that conclusion. In Porter, the Supreme Court held that it was impermissible for an officer, during a stop for a traffic infraction, to conduct a search that is not related to the purpose of the stop and for which the officer has no probable cause or consent. 312 Or at 121. Porter does limit what may occur during the course of a traffic stop, but it does not hold that, once a traffic stop is complete, an officer is precluded from asking for consent to search. We recently considered exactly that question in State v. Allen, 112 Or App 70, 826 P2d 127, rev den 314 Or 176 (1992). ² In Allen, after completing a stop for a traffic infraction, the officer told the defendant that he was free to go, and the trial court found that he understood. We concluded that “the conversation that followed the traffic stop was a separate exchange and there was nothing otherwise impermissible about the inquiry.” 112 Or App at 73. Our decision in Allen was consistent with State v. Porter and should control here.

The dissent takes the position that a request for consent made after a traffic stop is automatically impermissible based solely on the fact that it occurred after a traffic stop. We see no reason why the validity of the request and consent that follows should not be judged based on the same standard of voluntariness applied to any consent. We have held generally that there is no prerequisite of reasonable suspicion or probable cause before an officer may ask a citizen for consent to search. As we stated in State v. Auer, 90 Or App 459, 464, 752 P2d 1250 (1988):

“Neither the Supreme Court nor this court has ever held, or even suggested, that reasonable suspicion is a prerequisite to asking for consent to search.”

We recently upheld a request to search when an officer walked up to a citizen and, without probable cause to believe that a crime had been committed or even a reasonable suspicion, asked for permission to search. We assessed the totality of the circumstances and held that the consent was voluntary. State ex rel Juv. Dept. v. Fikes, 116 Or App 618, 842 P2d 807 (1992). The pertinent inquiry there was not whether the officer had authority to ask the question but whether, considering the totality of the circumstances, the defendant’s consent was given of his own free will or was the product of coercion, express or implied. We have held that, even in circumstances where a request for consent to search followed illegal police conduct, consent is not automatically invalid. Rather, the burden on the state to prove voluntariness focuses on whether the consent was an exploitation of the prior illegality. State v. Kennedy, supra, see State v. Mercado, supra. The fact that a request for consent to search takes place after a traffic stop is a factor that should be considered in evaluating whether, under the totality of the circumstances, the consent was voluntarily given or was the product of coercion. However, consent should not be invalidated solely because it follows a traffic stop.

Finally, defendant argues that, even if the request for consent occurred after the traffic stop had ended, Ayres’ actions after the traffic stop constituted a separate stop for which there was no justification. Defendant contends that because Ayres had no basis to stop defendant after the conclusion of the traffic stop, the stop was illegal and the “fruits of that stop” should be suppressed. In State ex rel Juv. Dept. v. Fikes, supra, 116 Or App at 622, we addressed a very similar argument. In that case, we held that the child was not stopped when a uniformed officer approached and asked for permission to search him while he was standing with a group of other youths in a park. We noted there that the explanation in State v. Holmes, 311 Or 400, 409, 813 P2d 28 (1991), that a stop or seizure of the person occurs when (1) an officer “intentionally and significantly restricts, interferes with, or otherwise deprives” a person of his liberty or freedom of movement; or (2) when an individual believes that that has occurred and his belief is “objectively reasonable in the circumstances.”

Applying that test here, we conclude that Ayres’ request for consent to search defendant after the traffic stop had ended was not a stop or seizure of his person. Ayres’ request was just that — a request. He did not threaten or coerce defendant or take any action that significantly restricted, interfered with or otherwise deprived defendant of his liberty or freedom of movement. In addition, defendant did not testify that he believed that he was not free to leave. In any event, it would not have been objectively reasonable under the circumstances for him to have believed that. As the trial court found, defendant was told that he was free to go and the only coercion involved in the officer’s request for consent to search was the inherent coercion involved in any encounter with a uniformed officer. Under those circumstances, it would not have been reasonable for defendant to believe that he was not free to go. Accordingly, Ayres’ request for consent was not a stop.³ We hold that the trial court erred in granting defendant’s motion to suppress.

Reversed and remanded for a new trial.

1 Contrary to the dissent’s assertions, we are not engaging in factfinding that should be done by the trial court in the first instance. The trial court found that the officer told him that he was free to go. Whether that terminates the traffic stop is a question of law.

2 As in this case, the dissent, in State v. Allen, urged that, under State v. Porter, the officer lacked authority to ask for consent upon the completion of the traffic stop.

3 The dissent asserts that the question of whether defendant’s consent was voluntary is a question for the trial court. However, defendant does not argue that his consent was involuntary. Rather, as discussed above, he argues that the officer lacked authority to ask for consent and that the request constituted an impermissible stop.