STATE OF OREGON, Plaintiff-Respondent, v. JOSEPH LYNN PEEK, Defendant-Appellant.
Multnomah County Circuit Court 17CR70954; A168389
In the Court of Appeals of the State of Oregon
Argued and submitted February 25, 2020, affirmed April 14, 2021
310 Or App 587 (2021) | 485 P3d 292
John A. Wittmayer, Judge.
Before Lagesen, Presiding Judge, and Powers, Judge, and Kamins, Judge.
Defendant crashed his motorcycle onto a bike path, littering the path with debris. Defendant was taken to a hospital, and Officer Byrd remained on the crash scene. When Byrd picked defendant‘s motorcycle jacket up off the ground to move it out of the path, he noticed that the jacket was heavier on one side than the other. Upon shining a flashlight onto the open jacket pocket, Byrd discovered a gun. The state charged defendant with, among other offenses, felon in possession of a firearm. Defendant moved to suppress the evidence of the firearm, contending that Byrd unlawfully seized the jacket by picking it up from the bike path and unlawfully searched the jacket by shining the flashlight on the open pocket to see the gun, in violation of
Affirmed.
Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
LAGESEN, P. J.
Affirmed.
Defendant appeals a judgment of conviction for, among other things, one count of felon in possession of a firearm,
Not long after midnight on a late September morning, defendant crashed his motorcycle, landing on the I-205 bike path near Glisan Street in Portland. Officer Byrd of the Portland Police Bureau, among others, was dispatched to the scene of the accident. When he arrived at about 10 minutes before 1:00 a.m. (by motorcycle himself), EMTs were attending to defendant and had taken off defendant‘s leather riding jacket. Debris and other items, including defendant‘s motorcycle, helmet, a shoe, and defendant‘s jacket, littered the bike path. Other officers secured the crash scene while Byrd interviewed a witness to the crash, Lang. As Byrd was interviewing Lang, the EMTs transported defendant to the hospital in an ambulance.
After he completed the interview, Byrd diagrammed and photographed the crash scene, working with a trainee, Officer Winfield. Then, Byrd began to clean up the scene; the items in the bike path posed a hazard for people riding their bikes on the path. In addition to the need to clear the hazard, Byrd also thought that defendant would likely want his leather jacket and helmet returned to him and planned to take them to the hospital.
When Byrd picked the jacket up off the ground to move it out of the path, he noticed that “it was considerably heavier on one side” than he expected based on his own experience as a motorcyclist; in Byrd‘s experience, “if you have a motorcycle jacket usually it‘s pretty balanced or things on motorcycles are usually pretty balanced.” Then, when Byrd set the jacket down on the concrete Jersey barrier separating the bike path from the roadway, he heard the “very familiar thud” reminiscent of the sounds “when clunky metal, heavy things hit other hard cement things.”
Meanwhile, a blood test at the hospital revealed that defendant‘s blood alcohol content was 0.175 percent.
As a result of the incident, the state charged defendant with one count of felon in possession of a firearm (Count 1); one count of driving under the influence of intoxicants (Count 2); and reckless driving (Count 3). Defendant pleaded guilty to Count 2 and entered diversion. He then moved to suppress the evidence of the firearm, contending that Byrd unlawfully seized the leather jacket by picking it up from the bike path, in violation of
The trial court denied the motion. Finding Byrd‘s account of his conduct credible, it first ruled that Byrd‘s act of picking up the jacket and moving it to the Jersey barrier did not amount to a seizure. The court ruled further that Byrd did not search the jacket because, when the jacket was “[s]et down on a Jersey barrier, the distinctive sound of the firearm, announced its presence in the pocket of the jacket, and the officer was able to see it without opening the jacket pocket.” In the alternative, the court ruled that any seizure occurring at the time that Byrd picked up the jacket was permissible incident to defendant‘s arrest for DUII.
After the trial court ruled on the motion to suppress, defendant entered a conditional guilty plea agreement, under which defendant conditionally pleaded guilty to Counts 1 and 3 and reserved the right to pursue this appeal of the denial of his motion to suppress.
On appeal, defendant reiterates the state constitutional arguments he made below, contending that the trial court erred when it determined that (1) Byrd‘s act of picking up the jacket was not a seizure under
For purposes of
As for whether Byrd searched defendant‘s jacket, that depends on whether the gun was in Byrd‘s plain view. Whether it was in Byrd‘s plain view in this instance turns on the nature of Byrd‘s use of the flashlight. If the flashlight merely enabled Byrd to see what would have been visible to him in daylight, then Byrd did not conduct a search. State v. Faulkner, 102 Or App 417, 420-21, 794 P2d 821, rev den, 310 Or 422 (1990). If, however, Byrd would not have been able to see the gun without the use of a flashlight whether it was day or night, then he conducted a search. State v. Reed, 169 Or App 456, 463, 9 P3d 738 (2000).
This question—whether Byrd could have seen the gun without the flashlight in daylight—is a factual one and, in ruling that Byrd did not conduct a search through his flashlight use, the trial court necessarily found that the flashlight did not let Byrd see anything more than what he would have been seen had he been looking at the jacket in daylight. That finding is supported by the record: Byrd testified that the pocket of the jacket was open, that he did not manipulate the pocket in any way when he trained the flashlight on it, and that, even without the flashlight, he “could probably have seen the gun in the pocket had [he] simply looked but [he] wasn‘t looking for it at first.” All of that allows for the reasonable inference that the gun would have been visible to Byrd through the open pocket in the daylight, such that his use of the flashlight did not amount to a search.
In sum, under these circumstances, Byrd did not seize defendant‘s jacket and he did not search it. The trial court, therefore, correctly denied defendant‘s motion to suppress.
Affirmed.