State v. Elverud

EDMONDS, J.

Defendant was convicted of possession of a controlled substance. ORS 475.992. He appeals the trial court’s denial of his pretrial motion to suppress evidence that led to his conviction. We affirm.

On June 24, 1995, at approximately 1:00 a.m., Officer Hess saw defendant on a bicycle on Dogwood Street in Cornelius. He noticed that defendant did not have a front light or reflectors on the bicycle, and he stopped him to advise him about the requirement for fights and reflectors. See ORS 815.280(2)(c). He also asked defendant for identification, and he ran the identification “through dispatch.” Hess explained to defendant that he was giving him a warning for the violation, instead of issuing a citation and told defendant that “he was free to leave.” Hess then testified that defendant “stepped off the sidewalk into a grassy area.” He explained that defendant was “still straddling his bicycle on the sidewalk,” as he had been during the entire encounter. Hess also testified that defendant then “put his hands back on the handlebars of the bicycle,” and “it looked to [the officer] that he was preparing [to leave].” However, he did not leave.

Approximately five seconds later and after Hess had told defendant that he could leave, Hess, now standing on the grass, asked defendant “if he had any drugs on him.” Defendant said, “Oh, no sir.” Hess then asked if he could conduct a search, and defendant replied, “Sure. Do you want to look in my bag?” Hess approached defendant, searched his pants pockets and noticed a bulge in his coat pocket. He then asked if he could look in the pocket. Defendant reached into his pocket and pulled out a large ring of keys and a clear plastic baggie with a brown substance in it. Also, as defendant pulled his hand out of his pocket, a razor blade fell out. At that point, Hess arrested defendant and handcuffed him. He then read him his Miranda rights, which defendant indicated he understood. Hess then asked defendant if the substance in the baggie was methamphetamine, and defendant replied affirmatively.

On appeal, defendant argues that the trial court erred in denying defendant’s motion to suppress the evidence of the baggie’s contents and his statements to Hess. He contends that the officer’s request for consent to search exceeded his authority under ORS SlO^lOOXb)¹ and that the traffic stop had not ended when he made the request. In State v. Hadley, 146 Or App 166, 932 P2d 1194 (1997), we held:

“[A] traffic stop continues until the motorist has had an objectively and temporally reasonable opportunity to move on. As a practical matter, that means, in virtually all instances, that the traffic stop continues for Dominguez-Martinez[, 321 Or 206, 895 P2d 306 (1995),] purposes until the motorist has had a ‘real time’ opportunity to move on. There must, in other words, be a distinct temporal ‘break in the action’ between an officer’s indication that a motorist is free to go and any unrelated inquiries.” Id. at 171-72.

We conclude that the circumstances in this case demonstrate that there was an objectively, reasonable opportunity for defendant to leave before Hess made the request for consent to search. Hess told defendant that he was free to leave and stepped off the sidewalk out of defendant’s way, so that he was not prevented from leaving. Defendant was straddling his bicycle, and he had put his hands on the handlebars as if to leave. Hess testified that there was nothing that appeared to impede defendant’s departure. However, for whatever reason, he paused and remained at the same location. Hess, after waiting approximately five seconds, asked defendant if he had any drugs on him. Under the circumstances, any manifestation of the officer’s exercise of authority under ORS 810.410(3)(b) over defendant had dissipated.

The facts of this case differ from the facts in both Dominguez-Martinez and Hadley, on which defendant relies. In Dominguez-Martinez, the officer told the defendant that he was free to leave but kept his arm on the door, and within one or two seconds the officer asked if he could ask a few more questions. 321 Or at 208. In Hadley, the officer told the defendant that he was free to leave but then asked for consent to search while the defendant was still standing outside of the car. 146 Or App at 168. In both of those cases, the defendants never had an objectively reasonable opportunity to leave. In this case, defendant had an objective and reasonable opportunity to continue down the sidewalk on his bicycle during the five seconds that lapsed after Hess told him he was free to leave and stepped away from defendant and off the sidewalk.

Affirmed.

1 ORS 810.410 provides, in part:

“(3) A police officer:

“(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.”