Dеfendant appeals a judgment of conviction for unlawful possession of marijuana, ORS 475.864, arguing that the trial court erred in denying, in part, his motion to suppress evidence obtained as a result of a seizure and search by police officers after the police had stopped a vehicle in which defendant was a passenger. We conclude that statements made by defendant during the time that he was unlawfully seized should have been suppressed but reject defendant’s contention that the court erred in denying suppression of the marijuana that the police seized from defendаnt’s backpack.
We review a court’s denial of a suppression motion for legal error and defer to the court’s findings of historical fact if there is constitutionally sufficient evidence to support them. State v. Soto,
While on patrol, Sergeant Sickler of the Jackson County Sheriff’s Department stopped an automobile that he had observed to be speeding and swerving in its lane. Sickler asked the driver for her license, registrаtion, and insurance documents; he also asked defendant, who was riding in the front passenger’s seat, for his identification. Defendant had no identification, but he provided Sickler with his name and date of birth. Sickler, a certified drug recognition evaluator, thought that defendant appeared lethargic and slow in responding. Sickler also smelled a moderate odor of marijuana coming from the car, although he saw no smoke or other visible evidence of marijuana use — either before he stopped the vehicle or during his interaction with its occupants.
Sickler told the driver and defendant to “stay put,” returned to his patrol car, and ran a warrant check on both the driver and defendant. Sickler then returned to the driver’s side of the stopped car and asked the driver and defendant if there was any marijuana in the car; they both
While Sickler was seeking consent from the driver to search her car, Deputy Murillo arrived at the scene of the stop, positioned himself at the passenger’s door, and watched defendant. Once Sickler had obtained the driver’s consent to search the car, he instructed Murillo to have defendant step out of the car so that Sickler could conduct the search. Defendant complied with that direction, and, although nothing about defendant raised his suspicions, Murillo conducted a patdown оf defendant to search for weapons — a practice that Murillo described as “just something that I do if somebody is going to step out of [a] vehicle.” Murillo found no weapons, but he did feel a small canister in defendant’s front coat pocket. Murillo asked defendant about the canister, but defendant did not give a clear answer. Murillo did not pursue the matter further with defendant and asked him to wait near the front of the patrol car; Murillo then told Sickler what he had felt in defendant’s pocket.
Acting on that information, Sickler, who had not yet begun a search of the car, approached defendant and looked into defendant’s coat pocket — which was open enough to render its contents visible. In the pocket, Sickler saw a clear canister that looked like it contained marijuana. Sickler asked defendant whether the canister contained marijuana, and, notwithstanding defendant’s denial that it did, Sickler seized the canister and asked defendant to sit on the bumper of the patrol car, next to the driver.
Sickler proceeded to search the car, beginning with the area in which defendant had been sitting. Sickler discovered a backpack there, which defendant acknowledged was his. Sickler asked whether the backpack contained marijuana, and, after hesitating, defendant answered, “No.” Because the backpack was heavy, and because defendant had hesitated, Sickler then asked whether there were pounds of
Sickler twice sought defendant’s consent to search the backpack, and defendant twice refused. Although Sickler did not raise his voice during the requests, his demeanor became “more stern.” After the refusals, Sickler told defendant that “based on the information that [Sickler] had[, he] felt that [he] could apply for a warrant,” and, “if a warrant was granted [,] that the incident would be prolonged.” He went on to say, however, that they “could take care of it tonight if [defendant] consented to the opening of the bag.” Defendant responded by giving Sickler permission to look into the backpack, inside of which Sickler discovered slightly less than one pound of marijuana.
Defendant was indicted for unlawful possession of marijuana, ORS 475.864. He pleaded not guilty and moved to suppress all evidence resulting from the stop, arguing that it had been obtained in violation of Article I, section 9, of the Oregon Constitution.
The state argued in response that defendant’s consent was valid. Without conceding that Murillo’s pat down of defendant was unlawful, the state argued that the results of the pat down could be ignored because “no one testified that that led * * * to a basis for asking for consent to search.” The state also argued that, without regard to defendant’s consent, the search of the backpack was lawful under the automobile exception to the warrant requirement. The state offered no arguments about the admissibility of defendant’s statements.
Defendant contends on appeal that the trial court erred by not suppressing his incriminating statements and the marijuana from the backpack. He contends that he was seized when Sickler told him to “stay put” in the car and that that stop was unlawful because Sickler lacked reasonable suspicion to believe that defendant had committed a crime. He further argues that Sickler obtainеd defendant’s subsequent consent to search the backpack — as well as defendant’s other incriminating statements — through exploitation of the unlawful stop, including the unlawful pat down search. The state concedes that defendant was unlawfully seized and searched at the point that Murillo conducted the pat down, but it argues that the discovery of the backpack, defendant’s consent to search it, and defendant’s incriminating statements were not the product of any unlawful police conduct, because the backpack would have been found even if defendant had not beеn searched.
Relying on Smalley, the state also argues that, in any event, Sickler was justified in searching the backpack under the automobile exception to the warrant requirement, because the car was mobile at the time of the stop and Sickler had probable cause to believe that contraband would be found in it. Defendant responds that Sickler lacked probable cause to believe that defendant’s backpack contained marijuana
Because this case involves multiple articles of evidence, we begin with an iteration of our overarching inquiry: We must determine whether each item of evidence that the state seeks to introduce must be suppressed because it was obtained in violation of defendant’s rights under Article I, section 9. See Hall,
Two items of evidence are at issue on appeal. The first, which predominated the parties’ — and particularly the state’s — arguments on appeal, is the nearly one pound of marijuana discovered in defendant’s backpack. The second is defendant’s inculpatory statements in response to questioning about the backpack. For the reasons that follow, we conclude that the trial court properly denied defendant’s suppression motion as to the marijuana that wаs found in the backpack; however, the trial court erred in failing to suppress defendant’s statements about the backpack and its ownership. Accordingly, we reverse.
We begin by determining if and when defendant was unlawfully seized. Defendant argues that he was seized when Sickler ordered him to “stay put” because, under those circumstances, a reasonable person would not have felt free to end the encounter and leave. State v. Ashbaugh,
Because no evidence subject to defendant’s suppression motion was obtained between the time that Sickler directed defendant to “stay put” and the moment that Murillo asked defendant to step out of the vehicle and subjected him to a pat down search, we need not determine whether defendant was unlawfully seized before the pat down search, as defendant argues. Instead, we accept the state’s concession and agree that defendant was unlawfully seized when he was ordered out of the car and subjected to a pat down search.
The state largely ignores the effect of that seizure on the admissibility of defendant’s statements, instead focusingits arguments on the marijuana found in defendant’s backpack. At oral argument, the state acknowledged that “there may be some questions about the statements” but argued that “defendant madе no specific challenge to the statements of ownership * * * either below or above:” Curiously, in its brief, the state acknowledged that defendant had made at least one specific challenge to his statements— viz., that “[defendant now contends that he would not have made the incriminating statements but for the unlawful patdown” — but it argued that that challenge had not been raised below.
We disagree with the state. Defendant sought in his suppression motion an order “suppressing any and all objects, information, statements and observations” obtained as a result of the traffic stop. (Emphasis added.) At the suppression hearing, defendant argued that he had been unlawfully stopped when Sickler asked for his identification and, as a result, that “[t]he identity of [defendant], the marijuana on his person, the marijuana in his backpack[,] and any statements he made” should be suppressed. (Emphasis added.) On appeal, defendant argues that, because his inculpatory statements were made during an unlawful seizure, those statements are necessarily the product of that seizure. That is, defendant argues that, but for the unlawful seizure, he could have left at any time before Sickler began questioning him.
Our conclusion that defendant was unlawfully seized does not mean that the marijuana discovered in his backpack must be suppressed, however. The state presents two alternative grounds by which it argues that it obtained the marijuana lawfully. First, the state contends that Sickler’s discovery of the backpack was derived from the driver’s consent to search the car — not the unlawful seizure or patdown search of defendant — and that the subsequent search of the backpack resulted from defendant’s valid consent to the latter search. Second, the state argues that the automobile exception to the warrant requirement provided a lawful basis to search the backpack that preceded the officers’ unlawful seizure of defendant and, hence, was independent of the seizure. Because we conclude that it is dispositive, we address only the state’s reliance on the automobile exception.
We begin by reviewing the operation of the automobile exception before addressing the parties’ arguments as tо its application in this case. Under Article I, section 9, a warrantless search is per se unreasonable unless it falls within one of the few specifically established and carefully
The state argues that, based on Sickler’s observation of the driver’s impaired driving, defendant’s lethargic demeanor, and the moderate odor of marijuana in the car, Sickler had probable cause to believe that there was marijuana in the car. Relying on Smalley, the state argues that, because marijuana constitutes “contraband,” probable cause to believe that the car contained marijuana justified a search of the entire car, including defendant’s backpack. Defendant argues, in turn, that Smalley required Sickler to have probable cause to believe that defendant’s backpack specifically, not the car generally, contained marijuana. The car’s mobility is not in dispute.
The defendant in Smalley had been a passenger in a lawfully stopped car. He successfully moved to suppress evidence of a large amount of marijuana that was discovered in his backpack during a driver-consented search of the car.
Thus, the question presented to us on appeal was whether the аutomobile exception required the officer to have probable cause to believe that evidence of a criminal offense — as opposed to a mere violation — would be found. Id. at 268-69. The defendant argued that it did and, accordingly, because possession of less than one ounce of marijuana is not a criminal offense, see ORS 475.864(3), the mere odor of marijuana, without some indication of quantity, was insufficient to trigger the application of the automobile exception.
Relying on Brown, we rejected the defendant’s argument, concluding that, “[b]y using the phrase, ‘contraband or crime evidence,’ the [Brown] court signaled its understanding that the two things were not identical and that probable cause to believe in the presence of either could justify an automobile search.” Smalley,
Defendant points to two passages in Smalley that he contends stand for the proposition that the automobile exception requires an officеr to have probable cause to believe that each container in an automobile that the officer wishes to search contains contraband. In the first passage, which occurred at the outset of our discussion, we said that the automobile exception allows the police to “search any area of the vehicle or any container within the vehicle in which they have probable cause to believe that the contraband or
We acknowledge that, read alone, those passages provide some support for defendant’s position in this case, viz., that the automobile exception requires probable cause to believe that each container that the officer wishes to search within an automobile contains contraband. However, when viewed in light of Brown, we think that defendant’s understanding of those passages is flawed. Thus, we turn to the rationale behind the Oregon Supreme Court’s recognition of the automobile exception in Brown before returning to the statements in Smalley on which defendant relies.
Although the automobile exception is an exception to the warrant requirement, the Supreme Court in Brown nevertheless tied the exception to the hypothetical warrant that the police could obtain but for the exigency that an automobile’s mobility creates.
Of course, just as a search may exceed the scope of a warrant, a search under the automobile exception is only reasonable within its limits. As the Supreme Court noted in Brown, the scope of a search under the exception is defined by
“‘the object of the search and the places in which there is probable cause to believe that it may be found. Just as*12 probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.’”
Id. at 279 (quoting United States v. Ross,
Notably, those two inquiries are separate. Under the first, we must determine whether the search was justified by the automobile exception. If so, under the second, we must determine whether the search nevertheless exceeded its reasonable scope. That is the approach that the court followed in Brown even though the existence of probable cause was uncontested. Id. (first noting that the existence of probable cause to support the search had not been challenged, then “holding] that the scope of the warrantless search of the automobile was reasonable”).
Returning to defendant’s reliance on Smalley, we note that the test for whether the police had probable cause to conduct a search under the automobile exception — viz., “whether a magistrate could issue a constitutionally sound search warrant based on the probable cause articulated by the officers,” Brown,
Here, however, the facts differ. Before he searched the automobile, Sickler had observed the driver driving in
We turn, finally, to whether the search of dеfendant’s backpack was reasonably within the scope of the automobile exception. We note that, aside from the discussion set out above, the court in Brown did not provide a test to determine whether the scope of an officer’s search under the automobile exception was reasonable. However, given the automobile exception’s justification, we think that its proper scope is defined by the warrant that the officer could have obtained; here, that warrant would have authorized a search of the vehicle and its contents for marijuana. See Bennett,
In summary, we conclude that the trial court erred in failing to suppress defendant’s statements about the backpack and its contents because those statements were made during the course of an unlawful seizure. Thе trial court correctly refused to suppress the backpack and its contents, because the automobile exception justified Sickler’s search of both the vehicle and the backpack.
Reversed and remanded.
Notes
Article I, section 9, provides, as relevant, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]”
In arguing that Sickler did not have probable cause that defendant’s backpack contained marijuana, defendant cites a number of our cases that address whether reasonable suspicion supports the investigation of a passenger in a lawfully stopped vehicle for possession of marijuana. See, e.g, State v. Morton,
Both defendant and the dissent in Cromwell rely on State v. Tallman,