State v. Acuna, 331 P.3d 1040

Background

On Nov. 28, 2011, an anonymous caller reported four young men smoking marijuana at SE 16th & SE Oak and described two vehicles; about 30 minutes later Officer Ploghoft arrived and found matching vehicles and three men (including defendant).
Ploghoft asked about drug use; the men denied it; Ploghoft smelled unburned marijuana in the immediate area but could not pinpoint its source.
Ploghoft called for backup; Officer Peterson arrived and was described as more aggressive. Ploghoft requested consent for a patdown; defendant produced a glass pipe, then consented to a patdown, and officers recovered a baggie of marijuana from his pocket.
Officers smelled marijuana from a backpack (which defendant later admitted was his); defendant consented to search after being told the backpack could be seized for a warrant. Search yielded a large jar of marijuana, baggies, a scale, and a bat.
Defendant was handcuffed ~22 minutes into the encounter and later charged with unlawful delivery of marijuana for consideration. He moved to suppress evidence arguing illegal stop/search, Miranda/compelled self-incrimination, and that the phone-warrant relied on illegally obtained evidence. Trial court denied the motion; defendant was convicted; appeal followed.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether the initial officer contact constituted a seizure (stop)	Initial questioning was a "mere conversation"; seizure did not occur until contraband was discovered	Stop occurred when officer began questioning or at latest when asked for patdown consent	Encounter began as mere conversation but became a seizure when officer requested patdown after calling for backup and a second, more aggressive officer arrived
Whether the seizure (if any) was supported by reasonable suspicion	Yes: anonymous tip corroborated by vehicles/people seen and the odor of unburned marijuana provided particularized reasonable suspicion	Tip uncorroborated and odor not attributable to defendant specifically, so no reasonable suspicion as to him	Reasonable suspicion existed based on informant’s personal observations corroborated by Ploghoft (vehicles/people) and the marijuana odor in the vicinity; stop lawful
Whether Miranda/Article I, §12 protections were violated before arrest	No: circumstances were not sufficiently coercive or police-dominated to require warnings	Officers’ persistent questioning, backup arrival, and patdown request created a compelling, custodial setting requiring Miranda warnings	No Miranda/Article I, §12 violation: encounter did not create the coercive, police-dominated atmosphere requiring warnings prior to arrest
Validity of warrant to search cell phone (fruit of alleged illegal actions)	Warrant affidavit was not tainted because stop/search and questioning were lawful	Warrant relied on evidence from unlawful stop/search and Miranda violation, so should be suppressed	Warrant valid because underlying stop and questioning were lawful and no Miranda violation occurred

Key Cases Cited

State v. Ashbaugh, 349 Or 297 (distinguishes "mere conversation" from a seizure)
State v. Backstrand, 354 Or 392 (shows-of-authority test for seizures)
State v. Anderson, 354 Or 440 (verbal questioning may become coercive when accompanied by other factors)
State v. Levias, 242 Or App 264 (calling backup and a second officer’s arrival supported finding of a stop at consent-to-search request)
State v. Watson, 353 Or 768 (odor of marijuana can supply reasonable suspicion for further investigation)
State v. Shaff, 343 Or 639 (Miranda/Article I, §12 analysis—when warnings required)
State v. Shirley, 223 Or App 45 (examples of coercive police conduct making circumstances compelling)
State v. Ehly, 317 Or 66 (appellate review binds to trial court factual findings when supported by record)