State v. Campbell

327 P.3d 1188, 263 Or. App. 315, 2014 Ore. App. LEXIS 721
CourtCourt of Appeals of Oregon
DecidedMay 29, 2014
Docket110646093; A149656
StatusPublished
Cited by1 cases

This text of 327 P.3d 1188 (State v. Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Campbell, 327 P.3d 1188, 263 Or. App. 315, 2014 Ore. App. LEXIS 721 (Or. Ct. App. 2014).

Opinion

DE MUNIZ, S. J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine.1 ORS 475.894. He assigns error to the trial court’s denial of his motion to suppress evidence. We affirm.

Two Portland Police Officers, Yakots and Hettman, observed defendant standing in front of a park bench in an area of downtown Portland that they associated with drug activity. Defendant appeared disheveled. He was going through items in a book bag, which lay open on a park bench. Some of defendant’s personal items were spread out on the bench.

Yakots and Hettman parked their patrol car near defendant, got out, and approached him. Yakots said, “Hey, how are you doing? What’s going on?” then, “Hey, do you have anything on you you’re not supposed to have?” Defendant replied that he did not. While Yakots and defendant were speaking, Hettman obtained defendant’s identifying information and returned to his patrol car to run a warrant check. Yakots then asked defendant, “Are you sure? Do you mind if I search?” Defendant said, “No, go ahead.”

Yakots prepared to search defendant, telling defendant to put his hands on top of his head. Defendant complied. However, before Yakots could inventory defendant’s pants pockets, Yakots noticed a clear tube with an orange cap of the sort used to store hypodermic needles sticking out of the front pocket of defendant’s book bag. Defendant saw Yakots looking into his book bag and lunged for the bag. Yakots pushed the bag away and ordered defendant to put his hands back on top of his head. Defendant continued to reach for the bag. Yakots ordered defendant to stop, and defendant swung at Yakots with a closed fist.

Hettman returned from the patrol car and helped Yakots bring defendant to the ground and handcuff him. Yakots then provided defendant with Miranda warnings and asked, “What the heck’s going on? Why are we in this [317]*317position that we’re in now?” Defendant looked to his bag and said, “Because I have those.” The officers found two needles in defendant’s bag, one of which tested positive for methamphetamine.

The state charged defendant with attempted assault of a public safety officer, ORS 163.208 and ORS 161.405, resisting arrest, ORS 162.315, attempted escape in the second degree, ORS 162.155, and ORS 161.405 and unlawful possession of methamphetamine, ORS 475.894.

Before trial, defendant moved to suppress all physical evidence and any of defendant’s statements in response to the officers’ discovery of the physical evidence. Defendant argued that the officers had seized him without reasonable suspicion, in violation of Article I, section 9, of the Oregon Constitution, when they obtained his identification for the purpose of running a warrant check. According to defendant, the officers’ observation of the needles in his book bag, the search of the bag and seizure of its contents, and defendant’s statements to the officers were the product of police illegality. The trial court concluded that defendant had not been “stopped” for the purpose of Article I, section 9, and denied defendant’s motion. A jury found defendant guilty of attempted assault on a public safety officer and unlawful possession of methamphetamine, but not guilty of the remaining charges.

On appeal, defendant renews his argument that police seized him without reasonable suspicion in violation of Article I, section 9. Defendant argues that the seizure occurred when Hettman obtained defendant’s identifying information, which happened before Yakots asked for defendant’s permission to search, and before Yakots began the search and observed the contraband sticking out of the front pocket of defendant’s book bag.

In response, the state argues that the encounter did not become a seizure when Hettman obtained defendant’s identifying information. According to the state, even if the police had seized defendant without reasonable suspicion, defendant’s voluntary consent to the search served to attenuate the products of the search from any police illegality. In light of the Supreme Court’s recent decision in State [318]*318v. Backstrand, 354 Or 392, 399, 313 P3d 1084 (2013), we conclude that defendant was not “seized” for purposes of Article I, section 9. Consequently, we do not reach the attenuation issue.

In Backstrand, the Supreme Court surveyed the law of seizure under Article I, section 9.2 The analysis in Backstrand begins with the declaration that each interaction between police and citizens is unique. Id. at 399. Consequently, the inquiry into the nature of an interaction is fact specific and requires an examination of the totality of the circumstances. Id. (citing State v. Holmes, 311 Or 400, 408, 813 P2d 28 (1991)). Despite the potentially infinite variety of interactions, typically, police-citizen interactions fall into one of three categories. Id. The least intrusive category, mere encounter, unlike a stop or an arrest, is not a seizure under Article I, section 9, and requires no justification. Id.

Whether a police-citizen interaction rises beyond a mere encounter to the level of a seizure under Article I, section 9, depends on whether a reasonable person would believe that an officer has intentionally and significantly restricted, interfered with, or otherwise deprived a citizen of his or her liberty or freedom of movement. Id. (citing State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010)).

According to Backstrand, individuals feel differing degrees of comfort or discomfort while interacting with police officers. Consequently, for police to seize an individual under Article I, section 9, an individual must have an objectively reasonable perception that police are exercising coercive authority. Id. at 400-01.

Backstrand also posits that requests for identification are commonplace in individuals’ daily lives, as is briefly tendering identification during private interactions and during interactions with the government. Id. at 408. Under the court’s reasoning in Backstrand, a police officer’s [319]*319request for identifying information, or even formal identification, without something more, is not a coercive show of authority, and consequently, does not lead to a reasonable belief that an individual’s liberty is significantly restricted. Id. at 412. However, other circumstances, in addition to an officer’s request for identification and an individual’s compliance, may create a reasonable belief that an individual’s liberty is significantly restricted.

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Related

State v. Dierks
332 P.3d 348 (Court of Appeals of Oregon, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
327 P.3d 1188, 263 Or. App. 315, 2014 Ore. App. LEXIS 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-campbell-orctapp-2014.