State v. Backstrand

220 P.3d 748, 231 Or. App. 621, 2009 Ore. App. LEXIS 1688

• Court: Court of Appeals of Oregon
• Decided: November 4, 2009
• Docket: C071116CR, A136163
• Status: Published

Opinions

ROSENBLUM, J.

Following a trial to the court, defendant was convicted of misdemeanor driving while revoked. ORS 811.182. He makes two assignments of error on appeal. In the first, he assigns error to the trial court’s denial of his motion to suppress evidence of his identity and the fact that his driver’s license had been revoked, arguing that the arresting officer learned that information as a result of illegally stopping defendant without reasonable suspicion. In his second assignment of error, which defendant concedes is unpreserved, he argues that the charging instrument did not allege facts sufficient to establish the crime of misdemeanor driving while revoked. We reject defendant’s second assignment of error without discussion. With respect to the first assignment of error, we conclude that the trial court erred in ruling that a reasonable person in defendant’s circumstances would not have believed that he or she had been stopped. Because the court did not address whether defendant subjectively believed that his liberty had been restrained, we remand for further proceedings.

Because defendant was convicted, we view the facts in the light most favorable to the state. State v. Cervantes, 319 Or 121, 125, 873 P2d 316 (1994). Deputy Gerba of the Washington County Sheriffs Department was in his patrol car, observing an adult bookstore that had been the subject of three recent armed robberies. He went inside the store to conduct a security check. While in the store, he saw defendant and his girlfriend. Both of them looked young to Gerba, so he asked them how old they were. Gerba did not suspect them of any wrongdoing, but he was concerned that the store owner could have been violating ORS 167.065, which prohibits furnishing obscene materials to minors. Defendant told Gerba that he was 22. Gerba asked him if he had any identification. Both defendant and his girlfriend produced their identification. Gerba took the cards and called dispatch with the identification numbers on them. Gerba testified that he called dispatch with the information in order to ensure that the identification cards were genuine. He explained, “When somebody has a fake ID, if we run it, it comes back unable to locate.” After calling the information to dispatch, he returned the cards, said, “Have a good day,” and left the store. He had retained the identification cards for a total of 10 to 15 seconds.

As he was leaving, dispatch called back and informed Gerba that defendant’s driver’s license had been suspended. Gerba thought nothing of that fact at the time. He went back to his patrol car and continued to observe the store in connection with its security issues. A few minutes later, he saw defendant and his girlfriend leave the store and drive away. Defendant was driving. Gerba pulled them over and arrested defendant for driving while suspended.

Although dispatch told Gerba that defendant’s license had been suspended, it had actually been revoked, so defendant was charged with driving while revoked. Before trial, defendant filed a motion to suppress all evidence that was the product of his encounter with Gerba in the store. He argued that, by calling his identification information in to dispatch in his presence, Gerba had stopped him. Defendant argued that his case was analogous to State v. Hall, 339 Or 7, 115 P3d 908 (2005), in which the Supreme Court held that the defendant was stopped when a police officer asked for his identification and then requested a warrant check in his presence. Because Gerba lacked reasonable suspicion that defendant was involved in any criminal activity, defendant contended that the stop was unlawful.

The trial court denied the motion to suppress. It stated, “I accept the deputy’s testimony that he wasn’t investigating this defendant for any wrongdoing. He was investigating whether the store was violating the statute [prohibiting furnishing obscene materials to minors]. So actually, he was investigating whether this gentleman, the defendant, was a victim of a crime.” In the court’s view, a crime victim “would think they would do some sort of investigation to see if you were a victim * * The court stated that, in an analogous case in which the person was suspected of a crime, it would “probably say it’s an invalid stop,” but, because the encounter was a “minim[al] intervention to see if [defendant was] a victim,” the analysis in Hall did not apply. It therefore concluded that Gerba had not stopped defendant, and it denied the motion.

Defendant waived the right to a jury trial, and he agreed that the court could consider, for trial purposes, the evidence presented in the suppression hearing. In addition to that evidence, the state offered, and the court admitted, certified records from Driver and Motor Vehicle Services showing that defendant’s license had indeed been revoked. The court then convicted defendant.

On appeal, defendant renews his contention that Gerba stopped him without reasonable suspicion and learned his identity and that his license had been revoked only as a result of the stop. In response, the state first argues that defendant’s interaction with Gerba did not amount to a stop. The state notes that, unlike in cases such as Hall, in which the police ran a warrant check in the defendant’s presence, here, Gerba “merely called in the ID number to check if it was valid — not to determine if defendant was a wanted criminal — and promptly gave defendant back his ID” and ended the encounter. In the state’s view, Gerba did not intentionally and significantly interfere with defendant’s liberty of movement, and a reasonable person would not have believed that he had. The state goes on to argue that, even if defendant was stopped, the evidence that he seeks to suppress was not a product of the stop. In support of that argument, the state contends that (1) defendant failed to show a “minimal factual nexus” between the stop and the evidence that he seeks to suppress; (2) the evidence was available from an independent source; and (3) the connection between the stop and the evidence is so attenuated that the stop cannot properly be viewed as the source of the evidence.

The first question before us is whether Gerba stopped defendant. To be lawful, a stop must be justified by reasonable suspicion of criminal activity. State v. Toevs, 327 Or 525, 534, 964 P2d 1007 (1998). It is undisputed that Gerba did not suspect that defendant was involved in criminal activity. Thus, if Gerba stopped defendant, the stop constituted an unlawful seizure. For purposes of Article I, section 9, of the Oregon Constitution, a stop 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). Police conduct interfering with a person’s liberty of movement may take the form of either physical force or a show of authority. State v. Juarez-Godinez, 326 Or 1, 6, 942 P2d 772 (1997). A show of authority effects a stop if it leads the person to subjectively believe that he or she is not free to leave and that belief is objectively reasonable. State v. Ruiz, 196 Or App 324, 327, 101 P3d 824 (2004), rev den, 338 Or 363 (2005). Determining whether a stop has occurred requires a “fact-specific inquiry into the totality of the circumstances of the particular case.” Holmes, 311 Or at 408.

As noted, the trial court concluded that a reasonable person would not view a brief detention to determine whether he or she is a crime victim as a significant intrusion on his or her liberty. Under the circumstances here, however, a reasonable person would not necessarily have believed that he or she was regarded solely as a potential victim. That is, even if a reasonable person would have understood that Gerba’s initial concern was that the store owner may have been furnishing obscene materials to minors, such a person could have believed that Gerba was also investigating whether defendant and his girlfriend had given him false identification or whether there were any outstanding warrants for their arrest. There would seem to be no reason for Gerba to call dispatch with the ID numbers other than to determine the authenticity of the cards or to conduct a warrant check. Although Gerba’s subsequent actions demonstrated that he was not going to require defendant and his girlfriend to wait for the results of that inquiry to dispatch, until he told them “Have a nice day” and walked away, a reasonable person in the same circumstances could have believed that he or she was not free to leave. Thus, although the encounter was brief, a reasonable person could have viewed it as a stop.

The question remains whether defendant subjectively believed that he was not free to leave. The trial court did not make a finding on that issue. It follows that we must remand for such a determination.¹

The state argues that we need not remand, contending that, even if Gerba stopped defendant, the evidence that defendant seeks to suppress is not a product of the stop. For purposes of analyzing that argument, the encounter is presumed to have been a stop, and this opinion refers to it as such, with the understanding that, depending on the trial court’s findings on remand, it may not actually have been a seizure within the meaning of Article I, section 9.

For evidence to be suppressed as a product of police illegality, a defendant must establish “a minimal factual nexus — that is, at minimum, the existence of a ‘but for’ relationship — between the evidence sought to be suppressed and prior unlawful police conduct * * Hall, 339 Or at 25. If the defendant succeeds, the state may nevertheless show that the evidence is admissible by proving that it did not derive from the police illegality.

“To make that showing, the state must prove that either (1) the police inevitably would have obtained the disputed evidence through lawful procedures even without the violation of the defendant’s rights under Article I, section 9; (2) the police obtained the disputed evidence independently of the violation of the defendant’s rights under Article I, section 9; or (3) the preceding violation of the defendant’s rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence.”

Id. (citations omitted).

As noted above, the state first contends that defendant failed to establish a factual nexus between the stop and the evidence. According to the state, assuming — as defendant argues — that the stop began at the moment that Gerba called defendant’s identification number to dispatch, the officer already had the information that enabled him to determine that defendant’s driving privileges were revoked — namely, defendant’s name and ID number. Thus, in the state’s view, Gerba did not obtain any evidence as a result of the stop.

The state is correct with respect to evidence of defendant’s identity. Defendant voluntarily produced his ID card and gave it to Gerba before the stop began. Whether Gerba actually read the information on the ID card before calling it in is irrelevant. Gerba may have internalized the information simultaneously with the commencement of the stop, but he did not obtain it as a result of the stop. Therefore, that evidence of defendant’s identity is not subject to suppression.²

The state is incorrect, however, with respect to the evidence that came to light after the stop began. Even though defendant gave Gerba the ID card before Gerba called the information in, but for the act of calling it in — the very act that effected the stop — Gerba would not have known that defendant’s license had been revoked. The call to dispatch is an essential factual link between Gerba’s obtaining defendant’s name and ID number and his discovery that defendant’s license had been revoked. But for that discovery, Gerba would not have known that defendant was driving illegally when he left the store. It follows that he also would not have arrested defendant and that the state would not have obtained the DMV records that were taken into evidence at defendant’s trial. In other words, but for the stop, none of the evidence (other than defendant’s identity) would have come to light. Therefore, defendant established the necessary factual nexus between the stop and the evidence obtained after the stop began.

The state next argues that that evidence did not derive from the stop, because it was available from an independent source — again, because Gerba already had obtained defendant’s name and ID number before the stop began. The state essentially recasts its “factual nexus” argument as an “independent source” argument. The state’s argument remains unpersuasive. Although Gerba obtained defendant’s name and ID number before the stop began, his discovery of the fact that defendant’s license had been revoked did not flow from that information independently of the stop. The “independent source” exception to the exclusionary rule applies when the police “did in fact acquire certain evidence by reliance upon an untainted sourcef.]” Wayne R. LaFave, 5 Search and Seizure § 11.4(a), 241 (3d ed 1996) (emphasis added). Thus, the fact that the evidence in question was available from an independent source — because Gerba could have conducted the same records check without stopping defendant — is irrelevant. Again, but for the stop, defendant’s name and ID number would not have led to Gerba’s discovery of the fact that defendant’s license had been revoked or his awareness that defendant was driving illegally. Evidence of those facts thus cannot be said to be independent of the stop.

The state finally argues that the connection between the stop and the evidence in question is so attenuated that the stop cannot properly be viewed as the source of the evidence. The state asserts that Gerba’s knowledge that defendant’s license had been revoked had no evidentiary significance before Gerba saw defendant get into a car and drive away. In the state’s view, only that intervening act by defendant “transformed that inconsequential piece of information into evidence of a crime.” The state contends that the facts here are analogous to the discovery of an outstanding arrest warrant for the defendant, which operates to attenuate the taint of prior illegal police conduct.

The state does not explain why evidence obtained by illegal police conduct is attenuated from that conduct merely because the police are not aware of its evidentiary significance when they obtain it. Although the stop by itself did not produce sufficient information to prompt Gerba to arrest defendant, the information that the stop did produce was an essential factor in his decision to arrest defendant. Thus, it cannot be said that the stop was not the source of the evidence that defendant was driving while revoked. See Hall, 339 Or at 25 (evidence is not subject to suppression if “the preceding violation of the defendant’s rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence” (citation omitted)).

This case is not analogous to those in which the police discovered an outstanding arrest warrant after illegally stopping the defendant. The line of cases on which the state relies began with State v. Dempster, 248 Or 404, 434 P2d 746 (1967). In that case, the Supreme Court explained that an outstanding arrest warrant can serve to attenuate the link between a police illegality and evidence discovered thereafter because, once the warrant is discovered, the police are bound to obey its command and arrest the defendant. Id. at 407-08. In circumstances such as those in the Dempster line of cases, an outstanding arrest warrant is based on information that was unquestionably obtained by the state independently of the illegal stop — given that the warrant was already outstanding when the stop occurred — and has already been judicially determined to establish probable cause to arrest the person named in the warrant. Any search incident to the lawful arrest on the warrant is thus purged of the taint of the earlier police illegality. For that reason, even though the police would not have discovered the warrant but for the illegal stop, evidence that the police discover after the warrant is executed is attenuated from the illegal stop.

In this case, there was no similar command to arrest defendant that Gerba was bound to obey. Moreover, unlike the information leading to the issuance of the arrest warrants in the Dempster line of cases, at least some of the information that formed Gerba’s decision to arrest defendant was a direct product of the initial stop. The intervening circumstance on which the state relies — defendant’s driving away from the store — did not, by itself, provide a sufficient basis for Gerba to arrest him. In Dempster, on the other hand, the intervening circumstance that created the attenuation — the arrest warrant — did by itself provide a sufficient basis for arresting the defendant. The state’s argument that this case is analogous to Dempster therefore fails.

The concurring opinion contends that, if the stop did not begin until Gerba called dispatch, defendant suffered no constitutionally cognizable detriment from the stop, so suppression is not required. The dissent agrees with that aspect of the concurring opinion. The concurrence rightly asserts that our analysis must be consistent with the principle that evidence is not subject to suppression if “the defendant is not placed in a worse position than if the governmental officers had acted within the bounds of the law.” Hall, 339 Or at 25. The approach taken by the concurrence, however, goes astray in two respects. First, in determining whether defendant was placed at a disadvantage, it focuses on the circumstances of Gerba’s conduct rather than the conduct itself. The concurrence notes that, under the reasoning reflected in this opinion, defendant’s presence during the call to dispatch is the circumstance that transformed otherwise lawful police conduct into an unlawful stop. 231 Or App at 642 (Haselton, P. J., concurring). From there, it argues that “defendant was not placed in any constitutionally cognizable ‘disadvantage’ vis-á-vis his ultimate arrest because of that circumstance.” Id. at 642 (emphasis added) (Haselton, P. J., concurring). The question is not whether a defendant is disadvantaged by the circumstances that render police conduct illegal, but whether he or she is disadvantaged by the conduct that the police engaged in — in this case, calling dispatch with defendant’s identification information.

Second, the concurrence goes astray when comparing defendant’s position to the position he would have been in had the illegal conduct not occurred. It contends that “defendant was ‘not placed in a worse position’ with respect to his arrest than if Gerba ‘had acted within the bounds of the law’ by contacting dispatch out of defendant’s presence.” Id. at 642 (quoting Hall, 339 Or at 25) (Haselton, P. J., concurring). But the concurrence does not consider the position defendant would be in had Gerba simply refrained from engaging in the conduct that violated defendant’s constitutional rights. Rather, it considers the position defendant would be in had Gerba done something different — namely, calling dispatch later, when defendant was no longer in his presence. In many search and seizure cases involving illegal police action, we likely could say that the police could have taken a different course of action — one that remained “within the bounds of the law” — and obtained the same evidence. It is inappropriate to determine the defendant’s relative position by considering hypothetical lawful conduct that the police could have engaged in (but did not) or hypothetical circumstances that would have rendered the police conduct lawful (but which were not present). Rather, the defendant’s relative position should be determined by considering the position he or she would be in had the police refrained from engaging in the unlawful conduct, without speculating about what the police might lawfully have done thereafter.

Under the circumstances of this case, calling dispatch with defendant’s identification information was (presumably, for present purposes) illegal. In determining whether the evidence should be suppressed, we must consider the position defendant would be in had Gerba not done that, without regard to anything else that Gerba might have done. The answer is obvious: Had Gerba not called dispatch, he would not have discovered that defendant’s license had been revoked, he would not have known that defendant was driving illegally, and he would not have arrested defendant. In short, this case would not have been brought against defendant had Gerba not made the call to dispatch. Defendant was clearly “placed in a worse position” by Gerba’s having acted outside the bounds of the law. Respectfully, the conclusion reached by the concurrence and the dissent is incorrect.

To summarize, regardless of whether Gerba stopped defendant or not, the trial court correctly ruled that evidence of defendant’s identity is not subject to suppression. If defendant was in fact stopped, however, the stop was unlawful and evidence of the facts that defendant’s license had been revoked and that he was driving illegally was tainted by the unlawful stop. On remand, the trial court shall determine whether defendant subjectively believed that he was not free to leave when Gerba called dispatch with his identification information. If the court finds that defendant did not hold that belief, it should reinstate defendant’s conviction. If it finds that he did hold that belief, the evidence must be suppressed.

Vacated and remanded for further proceedings.

1 We may not apply the presumption from Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968), that, in denying defendant’s motion to suppress, the trial court implicitly found that defendant believed he was free to leave. We are so constrained not because of an absence of evidence in the record, but because it is clear that the court’s ruling was based on the “objectively reasonable” prong of the Holmes analysis, and the court has not yet completely analyzed the issue of defendant’s subjective intent. See State v. Lantzsch, 229 Or App 505, 516, 214 P3d 22 (2009).

2 As defendant notes, in State v. Starr, 91 Or App 267, 754 P2d 618 (1988), we held that the defendant’s identity was obtained as a result of an unlawful stop in circumstances similar to those here. Without reasonable suspicion that the defendant was involved in criminal activity, a police officer asked the defendant for his driver’s license. He retained the license for five to 10 minutes before returning it. After the defendant left, the officer ran a records check and discovered that the defendant’s license was suspended. He followed the defendant and arrested him for driving while suspended. The trial court ruled that an unlawful stop began when the officer first asked the defendant for his license, and it suppressed all of the evidence obtained after that point, including the defendant’s identity. Id. at 269. On the state’s appeal, we disagreed that the stop began with the officer’s request, but concluded that he had retained the license long enough for the encounter to amount to a stop. Id. at 270. We affirmed the suppression ruling, holding that the “defendant’s identity was obtained as a result of the unlawful stop” because the officer “did not have authority to compel [the] defendant to do anything, including giving his name.” Id. However, the state did not argue, as it does here, that, because the defendant voluntarily gave the officer his license before the stop began, evidence of his identity was not a product of the stop. Because we did not consider that position in Starr, the case is not controlling here.