State v. Buchanan

57 P.3d 930, 185 Or. App. 68, 2002 Ore. App. LEXIS 1754

• Court: Court of Appeals of Oregon
• Decided: November 13, 2002
• Docket: CR000813; A114038
• Status: Published

Opinions

KISTLER, J.

The state appeals from a pretrial order suppressing a gun seized from defendant. It argues that the trial court erred when it ruled that the officer’s search exceeded the scope of defendant’s consent. We affirm.

On May 18,1999, Officer Thomas Broomfield of the Milwaukee Police Department was looking for a suspect named Ivan. Broomfield had no description other than an approximate age and that the suspect was male. At about 11:00 a.m., Broomfield noticed defendant walking through the parking lot of a shopping center towards a bar. Broomfield stepped out of a marked patrol car, called to defendant, and asked whether he could speak with him for a minute. Defendant walked over to the officer. Broomfield told defendant that he was looking for someone and asked defendant if he had any identification on him. Defendant replied that he did not. Broomfield asked whether defendant “had a wallet or anything with his name on it,” and defendant told him that he did not. Broomfield said, “[Y]ou know, it’s kind of odd you are going in this bar, [but] you don’t have any identification or anything.” Defendant responded, ‘Well, I am definitely over 21 years old.” According to the trial court, “The officer then asks the defendant to turn around so he can see if the defendant has a wallet. The defendant acquiesced to this request.”

When defendant turned around, his flannel shirt was hanging over his pants. Broomfield reached out and lifted defendant’s shirt. He explained:

“Well, I couldn’t really see his pockets because of the shirt hanging down. So I just kind of reached down and pulled the shirt up a little bit. I could see his pockets. And in his— one of the back pockets I could see kind of a bulge. And I leaned forward. There was a couple of lottery tickets sticking out of the pocket. And I leaned forward. And when I leaned forward to look into the pocket, I could see a handgun in there.”

Based on the evidence that Broomfield uncovered, the state charged defendant with being a felon in possession of a firearm and unlawful possession of a firearm. See ORS 166.270; ORS 166.250.

Before trial, defendant filed a motion to suppress, arguing that Broomfield had unlawfully stopped and searched him. The trial court found that Broomfield’s contact with defendant was “a mere casual encounter” and that, when the officer asked defendant to turn around, “this came close to, but did not constitute a ‘stop.’ ” The court ruled, however, that Broomfield searched defendant when he lifted his shirt and that Broomfield’s act went beyond the scope of defendant’s consent. The trial court reasoned, “Never did he ask the right to invade the defendant’s privacy by lifting his shirt and peering in the rear pocket. And that, to me, it is an invasion of his privacy.” The court accordingly granted defendant’s motion and suppressed the gun as well as defendant’s statements to police.

On appeal, the state does not dispute that Broomfield searched defendant when he lifted his shirt and saw what he could not otherwise have seen. See Arizona v. Hicks, 480 US 321, 107 S Ct 1149, 94 L Ed 2d 347 (1987); State v. Portrey, 134 Or App 460, 896 P2d 7 (1995). Rather, it argues that defendant consented to the search. More specifically, the state argues that a reasonable person would have understood that acquiescing in the officer’s request “to turn around so that he c[ould] see if the defendant ha[d] a wallet” gave the officer permission to lift defendant’s shirt in order to look inside his pockets.¹ Defendant responds, among other things, that Broomfield exceeded the scope of the consent because “there is a qualitative difference between turning around to give an officer a full exterior view (which is precisely what this officer requested) versus allowing an officer to grab and lift one’s shirt to obtain a more intimate view.”

Under Article I, section 9, of the Oregon Constitution, the scope of a person’s consent does not turn on what that person subjectively intended. State v. Jacobsen, 142 Or App 341, 349, 922 P2d 677 (1996); State v. Arroyo-Sotelo, 131 Or App 290, 294-96, 884 P2d 901 (1994). Rather, it turns on what a reasonable person would have intended. Id. That determination presents a question of law. Id. We have recognized, however, that we cannot divorce that legal determination from the historical facts that the trial court found, which are often critical in determining the scope of consent. State v. Helow, 171 Or App 236, 240-41, 15 P3d 103 (2000), rev den, 332 Or 56 (2001); Arroyo-Sotelo, 131 Or App at 294. The specific request that the officer made, the stated object of the search, and the surrounding circumstances all bear on our determination of the scope of a person’s consent. Arroyo-Sotelo, 131 Or App at 296-97.

Broomfield’s request, as found by the trial court, divides into three parts: Broomfield asked defendant (1) to turn around (2) so that he could see (3) whether he had a wallet. We begin with the third part of Broomfield’s request: Broomfield wanted to see whether defendant had a wallet in his back pocket. Broomfield did not ask defendant to turn around so that he could see whether defendant had any identification on him — a request that, if granted, would have entailed examining the contents of defendant’s pockets. Rather, Broomfield asked defendant to turn around so that he could see whether defendant had a wallet — a fact that is often apparent from the bulge (or the absence of a bulge) in a person’s back pocket. The stated object of Broomfield’s request was consistent with a visual inspection of defendant’s person.

The first two parts of Broomfield’s request point in the same direction. Broomfield asked defendant “to turn around” so that he could see whether he had a wallet on him. Broomfield did not ask defendant whether he could look inside his pockets or engage in some other type of search. His request — to turn around — was more limited. That request, if accepted, would have permitted Broomfield to see what he could have seen without consent had he walked behind defendant and viewed him from a different vantage point. The reason that Broomfield asked defendant to turn around reinforces that conclusion. The trial court found that Broomfield asked defendant to turn around so that he could see whether defendant had a wallet on him.

In the absence of an explicit request to search, and there was none here, we should be hesitant to convert a request to turn around into a request to lift defendant’s clothes and examine the insides of his pockets, at least where the object of Broomfield’s request could, in the normal course, be discovered by means of a visual inspection.² Additionally, defendant never expressly agreed to Broomfield’s request. Instead, as the trial court found, defendant “acquiesced” in it. Acquiescence connotes a limited acceptance,³ and, in light of defendant’s limited acceptance, we should interpret the scope of his consent narrowly, not broadly.

Given the trial court’s written factual findings, we agree with the trial court that, when defendant acquiesced in Broomfield’s request, he reasonably understood that Broomfield was asking him to turn around so that Broomfield could make a visual inspection. He did not consent to any search beyond that. He did not agree that Broomfield could examine the inside of his pockets, remove his clothes, or, as in this case, lift his clothes so that he could see what was not apparent from a visual inspection.

The dissent reaches a different conclusion. It reasons:

“Here, the stated objective of the search was to check defendant’s back pockets to ascertain whether he had a wallet. That objective could not be accomplished if the pockets were obscured by defendant’s shirt. Defendant’s untucked flannel shirt hung over his back pockets so that the officer could not see them. A reasonable person, having been asked for consent ‘to check his back pockets to see if, in fact, he did have a wallet in [them]’ and knowing that the pockets were obscured by his shirt, would have anticipated that, if he consented, his shirt would have to be lifted so the pockets could be viewed.”

185 Or App at 77 (Edmonds, P. J., dissenting). With respect, the facts on which the dissent’s analysis depends appear to be at odds with the facts that the trial court found. The trial court did not find that Broomfield asked defendant for consent “to check his back pockets to see if, in fact, he did have a wallet in [them].” Rather, in its written findings, the trial court found that “[t]he officer then asks the defendant to turn around so he can see if the defendant has a wallet.”⁴ Similarly, the trial court did not find that defendant consented to Broomfield’s request “knowing that the pockets were obscured by his shirt.” Rather, there was no testimony as to what defendant knew when he acquiesced in Broomfield’s request, and the trial court’s findings are silent on that point. The trial court could have inferred that defendant knew that his shirt would obscure Broomfield’s view when he turned around, but it also could have inferred that defendant was not aware of that fact until Broomfield reached out and lifted up his shirt. Because the trial court ruled in defendant’s favor, we are required to assume that it drew the latter not the former inference. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).⁵ Given the trial court’s explicit and implicit factual findings, we reach a different conclusion from the dissent.

Affirmed.

1 Although the state relies on a slightly different version of what Broomfield said, we have quoted the trial court’s finding of what Broomfield asked defendant.

2 The fact that it turned out that a visual inspection was insufficient to achieve Broomfield’s goal does not retroactively expand the scope of defendant’s consent.

3 “Acquiesce” means “to accept or comply tacitly or passively.” Webster’s Third New Int’l Dictionary 18 (unabridged ed 1993).

4 The dissent bases its analysis on Broomfield’s testimony rather than the trial court’s written findings. It reasons that it is appropriate to do so because the trial court stated, in its oral ruling, that it credited Broomfield’s testimony. 185 Or App at 78 (Edmonds, P. J., dissenting). We disagree with the dissent’s reasoning for three reasons. First, Broomfield did not purport to give a verbatim account of what he said to defendant. Rather, Broomfield testified to two different versions of what he asked defendant, and the trial court could credit Broomfield but still reasonably infer from his testimony that he in fact asked defendant “to turn around so that he can see if the defendant has a wallet.” Second, even if the trial court’s written finding is at odds with its oral statement, the written finding controls. Roe v. Doe, 161 Or App 477, 483, 984 P2d 344 (1999), rev den, 329 Or 651 (2000). Finally, the court’s oral finding that Broomfield’s testimony was credible and “fully explanative of the situation here” was made in the context of deciding whether Broomfield had stopped defendant. On balance, we conclude that the court’s written finding controls.

5 “Article I, section 9, requires that the scope of a defendant’s consent be evaluated on the specific facts surrounding the grant of consent.” Helow, 171 Or App at 240. Whether defendant knew, when he turned around, that his shirt would obscure Broomfield’s view is a specific historical fact that bears on what a reasonable person in defendant’s situation would have understood the scope of his consent tobe.