State v. Tovar
299 P.3d 580
Or. Ct. App.2013Background
- Sergeant Sickler stopped a speeding/swerving vehicle; defendant, a front passenger, provided name/DOB but no ID.
- Sickler smelled marijuana and, after returning to his squad car, asked driver about marijuana; both occupants denied possession.
- Murillo, arriving later, patted down defendant for weapons before any search of the car.
- Murillo felt a canister in defendant's coat pocket; Sickler then looked into defendant's pocket and saw a canister that appeared to contain marijuana.
- Backpack belonging to defendant was discovered during a car search; defendant hesitated when asked if it contained marijuana and later consented to opening the bag.
- Defendant moved to suppress all evidence from the stop; trial court suppressed the patdown-derived evidence but allowed the backpack marijuana and statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there an unlawful seizure affecting suppression of statements? | State concedes unlawful seizure during patdown. | Armstrong contends statements tainted by unlawful stop and patdown. | Yes; statements suppressed as violative of Article I, section 9. |
| Is the backpack marijuana admissible despite unlawful seizure? | Automobile exception or consent to search justified the backpack search. | Backpack search tainted by unlawful seizure; suppress consent-based findings. | Backpack marijuana admissible; automobile exception justified search. |
| Did the automobile exception justify a search of the backpack and vehicle contents? | Probable cause and vehicle mobility support automobile exception to search car and containers. | Probable cause to search the backpack specifically was required; Smalley limits apply. | Automobile exception applied; search of car and backpack within scope was reasonable. |
Key Cases Cited
- State v. Smalley, 233 Or App 263 (2010) (autos exception and container scope in backpack search)
- Brown v. United States, 301 Or 268 (1986) (probable cause and mobility rationale for automobile exception)
- State v. Bennett, 301 Or 299 (1986) (probable cause to search vehicle and contents)
- State v. Cromwell, 109 Or App 654 (1991) (probable cause and scope in vehicle searches)
- United States v. Ross, 456 U.S. 798 (1982) (probable cause to search containers within vehicle)
- State v. Morton, 151 Or App 734 (1997) (reasonable suspicion and vehicle passenger search limits)
- State v. Ashbaugh, 349 Or 297 (2010) (unlawful seizure and subsequent questioning analysis)