Willamette Law Online

Oregon Court of Appeals


ListPreviousNext


State v. Alvarado

Summarized by: 

Date Filed: 07-24-2013
Case #: A146374
Schuman, P.J. for the Court; Wollheim, J.; and Nakamoto, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A146374.pdf

Criminal Law: Under ORS 166.450, the phrase "presumptive evidence" is not that same as a rebuttable presumption, and does not shift the burden of proof to the Defendant. Additionally, reasonable suspicion is determined at the time the traffic stop is improperly extended, and does not include factors that arise after the unlawful extension.

Defendant appealed his convictions for unlawful obliteration of an identification number of a firearm and unlawful possession of a firearm. Defendant argued that the trial court erred in denying his motion for a judgment of acquittal on the obliteration charge, and for denying his motion to suppress evidence when the traffic stop was unlawfully extended. The Officer pulled Defendant over for speeding and failure to display a front license plate. The Officer became suspicious of narcotics in the vehicle and radioed for a drug detecting dog. The dog alerted to the presence of drugs, but none were found when the officers searched the car. The officers found a pistol with the serial number scratched off. The Court of Appeals remanded the obliteration charge. Under ORS 166.450, the state must prove three elements to convict Defendant of the obliteration charge:  1) Defendant obliterated the numbers, 2) did so intentionally, and 3) for an unlawful purpose. The trial court failed to consider both the intent and unlawful purpose elements of the statute. The trial court also misinterpreted the “presumptive evidence” language in ORS 166.450. Presumptive evidence is not the same as a rebuttable presumption, and if it were to be interpreted the same, the statute would shift the burden of proof to Defendant, which would raise constitutional questions. Second, the Court of Appeals believed the motion to suppress evidence should have been granted. The State presented ten specific articulable factors that contributed to the Officer’s reasonable suspicion to extend the search of Defendant’s vehicle, and this Court only found merit in three of the factors. The three factors were: 1) Defendant was driving a car owned by someone else, 2) he had a cell phone and a pager, and 3) there were multiple air fresheners and bottles of cologne. Although these factors were consistent with the transportation of narcotics, there is precedent in Oregon that holds the same factors to be insufficient in reaching reasonable suspicion. Also, the Officer’s phrase “training and experience” are not magic words and do not help give weight to the factors under the totality of circumstances. Therefore, the Officer’s search of the vehicle was unlawfully extended from the point where a traffic citation should have been issued; ending his authority to detain Defendant. Reversed and Remanded.