State v. Anderson

217 P.3d 1133, 231 Or. App. 198, 2009 Ore. App. LEXIS 1504

Opinions

SCHUMAN, J.

Defendant was convicted of delivery of a controlled substance. On appeal, he assigns error to the trial court’s denial of his motion to suppress evidence. The motion was based on defendant’s argument that the evidence was discovered after police officers, in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, stopped and questioned him and a companion without reasonable suspicion that they had been involved in criminal activity. We reverse and remand.¹

The trial court made no findings of fact. In reconstructing the sequence of events, therefore, we resolve disputed fact issues for which there is conflicting evidence as though the court resolved them in a way that was consistent with its legal conclusion. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Under those principles, the facts of this case are as follows. Keizer police officers were inside an apartment executing a search warrant related to alleged drug offenses when they were told that two people— defendant and a companion — had approached the apartment, observed officers inside, walked away, and entered the vehicle that they had apparently arrived in. Two officers, Zavala and Johnson, immediately left the apartment to question the vehicle’s occupants. They were joined by a third officer, Bamford. Zavala, according to his testimony, had a “hunch” that defendant and his companion had come to the apartment for drug-related business. He approached the driver’s side and spoke with the driver, defendant’s companion, at the same time that Johnson and Bamford approached the passenger side and spoke with defendant. Zavala and Johnson were in uniform and displaying badges; Johnson was wearing a “raid vest” with the word “police” in large letters across the front. The engine of the car was not running.

Zavala then told the driver why he was contacting her:

“I explained to her that we were executing a search warrant, that I was told that she had approached the door, her and her passenger. Because of this, we wanted to find out who they were, what interest they might have had with what we were doing there, or maybe they knew the individuals that — or individual that lived there at the apartment.”

The driver told Zavala that she did not have identification, but she provided her name and date of birth.

As Zavala was talking to the driver, Johnson was asking defendant to identify himself. Defendant told Johnson that he had no identification, but that his name was Steve Tipton. Unfortunately for defendant, Johnson knew the Tipton family and knew that defendant was not who he claimed to be; he immediately suspected that defendant had committed the crime of giving false information to a police officer. ORS 162.385.

Each officer heard the other’s conversation, and they decided — apparently simultaneously — to ask both of the car’s occupants to step out of the vehicle. Zavala then led the driver to a position several yards away from the car. Johnson, meanwhile, told defendant that he knew he was not Tipton. Thus confronted, defendant gave Johnson an identification card with his correct name. Johnson ran a warrant check, discovered an outstanding warrant from Polk County, and told defendant that he was under arrest. Johnson then walked to where Zavala was talking to the driver. He asked for her permission to search the car. She signed a consent form. A search of the car yielded the evidence that was the subject of defendant’s motion to suppress.

The trial court denied defendant’s motion, ruling that the initial encounter between defendant, his companion, and the police was “a contact and not a stop.” No stop occurred, according to the court, until after Johnson heard defendant give a false name, at which point the police had reasonable suspicion of criminal activity and could therefore lawfully detain defendant and his companion. Defendant was subsequently tried to a jury and convicted.

On appeal, defendant again argues that he and the driver were unlawfully stopped when the officers first approached the car and asked the occupants to identify themselves. In response, the state contends that defendant cannot obtain suppression of the evidence because its discovery derived from a violation, not of his rights, but of the driver’s. A one-sentence footnote in the state’s brief adds, “The state, however, does not concede that the initial encounter between defendant and Officer Johnson was a stop; rather, it was a mere encounter.”

We are not persuaded by the state’s primary position. The state is correct that, under Article I, section 9, of the Oregon Constitution, the rationale behind suppressing unlawfully seized evidence is that suppression is necessary in order to restore the person whose right has been violated to the position he or she would have been in had the police acted lawfully. State v. Davis, 313 Or 246, 253-54, 834 P2d 1008 (1992). But in the present case, defendant does not take the position that the evidence should be suppressed because the driver’s rights were violated.² Rather, he argues that, when the police in a single, indivisible act approached the car and identified themselves, indicated the purpose of their encounter, and asked both of the occupants for identification, the police violated both occupants’ rights under Article I, section 9. That single violation, the argument continues, led to the discovery of the evidence, because if the police had respected the rights of the occupants, neither officer would have been in the position to question them, to extract consent from the driver, and to discover the contraband.

Defendant’s argument, then, relies on the assertion that the police stopped him and the driver without reasonable suspicion that either was involved in criminal activity. The trial court ruled that the officers developed reasonable suspicion when Johnson recognized that the name defendant gave him was false. Neither party challenges that ruling and we accept it. The issue, then, is whether, at that point in the encounter, defendant was seized for purposes of Article I, section 9.

A “stop” requiring reasonable suspicion as a predicate occurs “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.” State v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991). A “stop” of the second variety occurs “whenever a person subjectively believes that a law enforcement officer significantly has restricted or interfered with that person’s liberty or freedom of movement and such a belief is objectively reasonable under the circumstances.” State v. Toevs, 327 Or 525, 535, 964 P2d 1007 (1998) (emphasis in original). A belief is “objectively reasonable” if “a reasonable person in [the] defendant’s position could have believed that the officers significantly had restricted his [or her] liberty or freedom of movement.” Id. at 536; accord State v. Parker, 227 Or App 231, 205 P3d 65 (2009); State v. Ashbaugh, 225 Or App 16, 25, 200 P3d 149 (2008), rev allowed, 346 Or 257 (2009).

We conclude that defendant was stopped before Johnson heard him provide a false name. By the time that occurred, defendant already knew that police were searching the apartpaent of one of his acquaintances. He saw three police officers, at least two of whom were in uniform, approach the car from both sides. One officer told the driver (within defendant’s hearing) that the officers “were executing a search warrant, that [one officer] was told that [the driver] had approached the door, her and her passenger,” and that, “[b]ecause of this, [the officers] wanted to find out who they were, what interest they might have had with what [the officers] were doing there, or maybe they knew the individuals that — or individual that lived there at the apartment.” Johnson then asked defendant for identification. We conclude that, if defendant believed that his liberty was significantly restrained — that is, if he believed that he was not free to ignore the officers and leave the scene — his belief was eminently reasonable. We also conclude that the officer’s conduct was “beyond that accepted in ordinary social intercourse,” as opposed to conduct that “would be perceived as * * * non-offensive * * * if it had occurred between two ordinary citizens.” Holmes, 311 Or at 410. In “ordinary social intercourse” one does not, along with two friends, approach strangers who are sitting in a car and preparing to drive away, inform them that suspicious activity is afoot nearby, and ask them to identify themselves. Surely an ordinary citizen would consider such conduct offensive, regardless of the inquisitors’ tone of voice.

Thus, defendant’s belief that his freedom was significantly restrained when Johnson asked him for identification, if he had such a belief, was objectively reasonable. He and the driver were unlawfully stopped. We therefore remand for further factfinding on the motion to suppress. See Ashbaugh, 225 Or App at 28.³

Reversed and remanded.

Footnotes

1

Defendant also assigns error to the court’s failure sua sponte to reject a crime laboratory report identifying the seized substance as methamphetamine. That assignment of error is controlled by our decision in State v. Raney, 217 Or App 470, 175 P3d 1024, rev den, 344 Or 671 (2008), where we rejected an indistinguishable argument. We do the same here without further discussion.

2

The state misperceives defendant’s argument. According to the state, defendant argues “that, despite no violation of his constitutional rights, he should be entitled to suppression based on the alleged violation of the rights of the vehicle’s owner, [the driver], who consented to a search of the car.” (Emphasis in original.) Defendant, however, clearly argues, “The officers unreasonably, i.e. unlawfully, seized defendant and eo-defendant[.]” (Emphasis added.) And, “[T]he officers did not have reasonable suspicion to believe that defendant and co-defendant had committed or were about to commit a crime. As a direct result of that stop, officers gained co-defendant’s consent to search her purse and the car.” (Emphasis added.)

3

The dissent takes issue with the “could have believed” formulation, implying that it originated in the majority opinions in Ashbaugh and Parker. In fact, this court adopted the phrase from the Supreme Court’s opinion in Toevs.