State v. Hall

50 P.3d 1258, 183 Or. App. 48, 2002 Ore. App. LEXIS 1190

Opinions

EDMONDS, J.

Defendant appeals from a conviction for possession of a controlled substance. ORS 475.992(4)(b). He assigns as error the trial court’s denial of his motion to suppress evidence that was seized from his pocket during an allegedly unlawful stop. He also assigns as error the denial of his motion to dismiss for lack of a speedy trial. We are not persuaded by defendant’s argument that the case should be dismissed for lack of a speedy trial under ORS 135.747. Suffice it to say that defendant himself contributed to much of the delay. See State v. Jenkins, 29 Or App 751, 756, 565 P2d 758 (1977) (“The defendant cannot take advantage of delays caused by his own conduct whether or not the delays were justified.”). However, we reverse on the basis of defendant’s first assignment of error.

In regard to the seizure of evidence from defendant’s person, the trial court made, in substance, the following findings. Defendant was walking along Washington Street near 10th Street in Klamath Falls toward the location where he had stored his backpack. Officer Deese, in a marked patrol car, drove past defendant, going in the opposite direction. Deese did not recognize defendant, nor did he see anything about defendant’s conduct that would justify a reasonable suspicion of criminal activity. Deese noticed that defendant looked at him and then looked away. He also saw in his rear-view mirror that defendant turned to look at the police car about four more times after the patrol car passed him. Deese turned his vehicle around and drove back to where defendant was walking. He stopped his car near defendant and signaled with two fingers of his hand for defendant to come toward him.¹ Defendant stopped walking and turned toward Deese. Deese got out of his car, said “Excuse me,” and asked defendant if he had any identification. Defendant gave Deese an Oregon identification card. Deese radioed the information from the card to a dispatcher, using a shoulder radio, and then returned the card to defendant.² The record check on defendant’s identification card provided no basis for a restraint of defendant’s liberty. While waiting for the record check, Deese noticed that defendant was wearing a jacket that “looked like it had items inside of it.” Deese asked defendant if he had any knives, weapons, or drugs, and defendant said, “No.” Deese then asked, “Would you mind if I checked?” Defendant said, “Okay.” Deese then did a quick patdown and found no weapons. He did, however, find a small glass vial, which later proved to contain traces of amphetamine.³ The evidence obtained from the search of defendant’s pocket led to defendant’s conviction that is before us now on appeal.

Before trial, defendant moved to suppress the evidence of the vial and its contents.⁴ In his motion, he argued that Deese’s gesture when he “signaled with two fingers of his hand for the defendant to come in his direction” was “an unlawful stop because there was no reasonable suspicion to justify it” and that the seizure and subsequent search of the glass vial “constituted exploitation of the unlawful stop.” The state responded:

“[T]his is not a stop. It was merely an encounter!.] [T]he officer pulled the vehicle in near the Defendant or next to him and did not stop the Defendant’s travel. The vehicle didn’t stop him, there were no orders given to the Defendant. * * * And in this case I think it is important the officer did not retain the Defendant’s identification, he looked at it, he called in the name and then he immediately gave it back. So the Defendant was not held in place because the officer had something that belonged to the Defendant. So overall, again the State’s position is that if this was a stop it certainly, any evidence should be suppressed, but I don’t think it was a stop. It was a mere encounter.”

The trial court concluded that Deese’s contact with defendant did not restrain defendant’s liberty and that there were therefore no grounds for suppression of the evidence. It denied the motion to suppress, and defendant was ultimately convicted.

We are bound by the trial court’s findings of fact if there is evidence in the record to support them. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). Here, there is evidence to support each finding. Therefore, the question presented by this appeal is legal in nature.⁵ Generally, “[a] compelled stop of a person on a public road, of course, requires justification.” Nelson v. Lane County, 304 Or 97, 101, 743 P2d 692 (1987). “Ours is not a society where police can stop any citizen and require the production of an ‘identification card’ without reason.” State v. Tourtillot, 289 Or 845, 868, 618 P2d 423 (1980), cert den 451 US 972 (1981).⁶ We have also acknowledged, however, that

“[s]treet encounters between patrolling policemen and citizens call the most subtle aspects of the Fourth Amendment into play. * * *

“The police have no less right than any other person to approach another and make inquiry regarding circumstances of interest. * * * The encounter becomes subject to the restrictions of the Fourth Amendment, however, when the citizen’s freedom of movement is restricted or his right to privacy is intruded upon by the process of inquiry or as a development of an encounter which was initiated for noncriminal purposes. A holding of the person, no matter how minor, is a seizure within the meaning of the Fourth Amendment even though no arrest has occurred.” State v. Evans, 16 Or App 189, 193-94, 517 P2d 1225 (1974).

Thus, ultimately, this case presents a question of Deese’s authority: whether he was lawfully authorized to act in the manner described above by some statute and whether his authority to do so, if any, is circumscribed by the state and federal constitutions.

We inquire initially whether Deese’s actions were authorized by any statute. State v. Amaya, 176 Or App 35, 29 P3d 1177 (2001), rev allowed 334 Or 288 (2002) (if a statutory analysis is sufficient to resolve the legality of a restraint of liberty, a constitutional analysis is unnecessary). We are not aware of any statute that would authorize Deese’s conduct, and the parties have not cited one to us. ORS 131.615 requires an officer to have reasonable suspicion before making a stop. ORS 810.410, which authorizes a stop of a pedestrian for pedestrian traffic violations, also requires reasonable suspicion that, the pedestrian has committed a traffic infraction. Here, Deese had no reasonable suspicion of any criminal misconduct or traffic violations.

We turn to the state constitutional issue: whether Deese’s actions violated Article I, section 9, of the Oregon Constitution. Stated another way, did Deese’s conduct constitute a permissible citizen encounter or an unlawful seizure of defendant’s person? In State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991), the Supreme Court explained the difference between a citizen encounter with a police officer and an unlawful seizure:

“[L]aw enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful. A street or public place encounter does not amount to an Article I, section 9 ‘seizure’ merely because the encounter may involve inconvenience or annoyance for the citizen and the other party to the encounter is known to be a law enforcement officer. Even physical contact does not transform the encounter into a ‘seizure’ if it is a normal means of attracting a person’s attention (e.g., policeman tapping citizen on the shoulder at the outset to get a citizen’s attention). See LaFave, 3 Search and Seizure, A Treatise on the Fourth Amendment 413, § 9.2(h) (2d ed 1987). Rather, the encounter is a ‘seizure’ of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse. The pivotal factor is whether the officer, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.”

We applied the same rule in substance in State v. Johnson, 105 Or App 587, 590, 805 P2d 747 (1991), where we held that “[w]hat starts out as a police-citizen encounter may be converted into a stop by a show of authority.” In Johnson, officers were present in an apartment complex because of a report of a fight in the parking lot. While in the lot, one officer encountered the defendant and asked him, in what we treated as a citizen encounter, whether he knew anything about the fight. The defendant answered in the negative, and nothing about his answer created a contrary suspicion. Notwithstanding that fact, the officer asked the defendant to come out from behind a bush and walk toward him. We held that, because the officer had already concluded his inquiry of the defendant about the fight that he was investigating, his subsequent exercise of authority over the defendant converted the citizen encounter into an unlawful stop. We focused on the totality of the circumstances surrounding the officer’s conduct. We reasoned:

“The 15 feet that defendant walked toward the officers in response to [the officer’s] request, which was away from the direction that he was walking, manifested the domination that [the officer] exercised. That show of authority converted the conversation into a stop.” Id. at 590-91.

Johnson illustrates how a citizen encounter can become a restraint of liberty when an officer engages in conduct significantly beyond that acceptable in ordinary social intercourse. So too, when an officer told a citizen to “freeze,” his liberty was deemed to have been restrained. State v. Warner, 284 Or 147, 167, 585 P2d 681 (1978). Similarly, a citizen can be deemed “stopped” if a police officer directs him to put identification on a table or to empty his pockets. Id. at 165-66. Those kinds of encounters do not bear the indicia of ordinary citizen encounters because of the officer’s exercise of restraint over the person. Under Holmes, a seizure will occur “whenever an individual believes that [a restraint on his liberty] has occurred and such belief is objectively reasonable in the circumstances.” 311 Or at 409-10.

We turn to Deese’s conduct in this case. There were three distinct acts that occurred before Deese asked for defendant’s consent to search: (1) Deese’s nonverbal gesture directing defendant to come toward him; (2) Deese’s request for identification, his taking of defendant’s identification card, and his use of it to run a record check; and (3) Deese’s question to defendant about his possession of knives, weapons, or drugs. We acknowledge that, merely because an officer makes inquiries that a private citizen would not make, it does not follow that a person’s liberty is restrained. Moreover, Deese’s gesture, by itself, does not necessarily indicate that Deese was exercising his authority over defendant. It could have been merely a gesture to get defendant’s attention — conduct that would occur in ordinary social intercourse between citizens. However, the conduct that followed the gesture persuades us that defendant’s liberty was restrained, in light of the totality of the circumstances. Deese’s request for defendant’s identification, his question about knives or drugs, and his request to search defendant while they were waiting for the record check, when combined with his gesture to defendant, would cause a reasonable pedestrian to believe that the officer’s conduct constituted more than ordinary social intercourse. Rather, it would suggest that the officer was exercising his authority in order to conduct a criminal investigation.⁷ In that sense, this case is unlike Holmes, where the defendant was stopped so that the officer could advise him of a detour around an accident. This case is more like the contacts made in Warner.

Our conclusion is further supported by the holdings in two additional cases. In State v. Painter, 296 Or 422, 676 P2d 309 (1983), the officer encountered the defendant walking in the street in the middle of the night. He stopped him and first asked him what he was doing. The defendant replied that his car had broken down. Nonetheless, the officer then asked the defendant for identification and retained it while he ran a radio check. The officer frisked the defendant while waiting for the radio check to come back. Then, after the radio check had come back, the officer asked more questions before returning the identification. The court held that the retention of the identification under those circumstances constituted a restraint of the defendant’s liberty.

In State v. Toevs, 327 Or 525, 964 P2d 1007 (1998), the defendant had been stopped for a traffic infraction, and his identification had been taken briefly. The identification was returned, and the officer told the defendant that he was free to leave. However, immediately afterward the officer asked if he could search the vehicle. He continued his requests, even though the defendant did not give consent after the first request. He also asked the defendant if he possessed any drugs. While the officer was questioning the defendant, another officer, who had prior drug-related contact with the defendant, approached the defendant and interrupted the conversation, asking the defendant two more times if he had any drugs in the vehicle. The court concluded that, regardless of the officer’s authority to restrict the defendant’s liberty initially, the officer’s continuous exercise of authority went significantly beyond that acceptable in ordinary social intercourse and constituted a restraint of liberty. We believe that what occurred to defendant in this case is similar to the facts in Painter and Toevs. We conclude that defendant was unlawfully restrained before Deese asked for consent to search.

The remaining question is what effect Deese’s unlawful restraint of defendant had on his consent to a search of his person. Defendant contends:

“The officer noticed the bulges in defendant’s jacket only after the unlawful stop. This new information prompted the officer to inquire about weapons and drugs. * * * Under State v. Stanley, 139 Or App 526, 912 P2d 948 (1996), rev’d on other grounds 325 Or 239, 935 P2d 1202 (1997), this constituted exploitation of the unlawful stop. The unlawful stop and the new information about the jacket gave the officer not only the opportunity, but also the reason, to request defendant’s consent.”

The state responds:

“The alleged illegality, i.e., the stop itself, did not produce any evidence that the officer exploited. * * * Here, the alleged illegality (the stop) did not produce any incriminating evidence but merely put the police in a position to request consent.”

The state relies on the reasoning in State v. Peppard, 172 Or App 311, 18 P3d 488, vacated 332 Or 630, 34 P3d 168 (2001), on remand 179 Or App 478, 40 P3d 563 (2002), which in turn relied on State v. Arabzadeh, 162 Or App 423, 986 P2d 736 (1999). Those cases both involved assertedly unlawful continuations of lawful traffic stops. After the initial traffic investigations were completed, the motorists were told that they were free to leave. Thereafter, the officers asked for consent to search. We held that, even assuming that the continuation of the stops was unlawful, the evidence gained after consensual searches was admissible if the officers did not “exploit any prior unlawful conduct,” “trad[e] on the arrest or otherwise tak[e] advantage of it to obtain the consent.” Peppard, 172 Or App at 315-16.

In this case, Deese testified he had not yet completed the process of running a record check on defendant’s identification when he began the dialogue with defendant that led to his request for consent to search. He stated:

“I carry my radio right here and I just called [the record check] in and handed [the identification card] back to him and then while I was waiting for dispatch to give me a response on his status [,] I asked him if he had any knives or weapons, illegal drugs on his person.”

Deese also testified:

“[Defendant] was wearing a leather jacket * * * and it kind of had some bulges towards the front that, that I, that caught my eye, I just thought that was kind of suspicious looking and I asked him at that time, when I noticed the bulges, I said, ‘do you have any weapons, knives or drugs on you?’ ”

Unlike the circumstances in the cases relied on by the state, Deese’s testimony demonstrates that he “exploited the illegal restraint of defendant’s liberty to obtain his consent to search.”

Our conclusion is based on the Supreme Court’s reasoning in State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993). In that case, government authorities went to the defendant’s apartment after obtaining an administrative arrest warrant. When they arrived, they knocked on the door, and the defendant answered. He was advised that he was under arrest pursuant to the warrant. After he was arrested, he consented to a search of his apartment, which resulted in the discovery of guns and the subsequent prosecution of the defendant for the crimes of being a felon in possession of a firearm. At trial and on appeal, the legality of the arrest warrant was put in question. The Supreme Court held that, even if the arrest was unlawful, the seized guns were admissible in evidence because the police had not exploited their unlawful conduct in obtaining the defendant’s consent to search the apartment.

In ruling on the issue of whether the police had exploited the prior illegality, the court made two important distinctions. First, the court explained that the issue was not one of voluntariness, an issue that focuses on the effect of unlawful police conduct on a defendant’s state of mind. See also State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994).⁸ Second, the court discussed the type of connection that must be present between the unlawful police conduct and the evidence uncovered during the subsequent consent search. It observed that, where the evidence would have been seized in the absence of unlawful conduct and the discovery of the evidence was inevitable, “the mere fact that the evidence was obtained after that conduct will not require suppression.” Rodriguez, 317 Or at 39 (emphasis in original). Similarly, a causal, “but for” connection alone is not sufficient. Thus, in Rodriguez, the fact that the officers were present at the defendant’s apartment to serve the allegedly unlawful arrest warrant did not constitute exploitation of the illegal warrant. Rather, the court said that “[e]xploitation occurs when the police take advantage of the circumstances of their unlawful conduct to obtain the consent to search.” Rodriguez, 317 Or at 40 (emphasis added). See, e.g., State v. Williamson, 307 Or 621, 772 P2d 404 (1989) (after smelling the odor of marijuana coming from the defendant’s vehicle, the police took advantage of the restraint of liberty arising out of an unlawful roadblock to persuade the defendant to give his consent to search).

Here, Deese’s testimony establishes that he took advantage of his unlawful stop of defendant to obtain defendant’s consent to search. He had no reason for stopping defendant other than to conduct a criminal investigation. His detention of defendant was unsupported by a reasonable suspicion that defendant had committed any criminal offense. Although Deese’s initial gesture could, under different circumstances, have constituted a mere request for a police-citizen encounter, the conduct that followed demonstrates that each successive action took advantage of the preceding circumstances to obtain defendant’s consent to search. Deese stopped defendant to ask for identification without reasonable suspicion that he had committed a crime. After procuring defendant’s identification and while waiting for the record check to be completed, he continued his criminal investigation by asking questions about weapons. During that time, he observed the bulges in defendant’s jacket, and he expressly testified that his observation led him to request consent to search. Thus, Deese took advantage of the circumstances of his unlawful conduct to obtain defendant’s consent, and it is that exploitation of the circumstances that distinguishes this case from the facts in Peppard and Arabzadeh. Consequently, the trial court erred in denying defendant’s motion to suppress evidence seized as a result of the search.

The dissent would remand to the trial court so that it could determine whether Deese exploited the unlawful detention. With respect, there can be no other legal conclusion from Deese’s own testimony than that he took advantage of the circumstances of his unlawful conduct to obtain the consent to search. Therefore, remand on that ground is not required. Much of the dissent’s quarrel in this case arises from its dissatisfaction with the majoritys language in State v. Stanley, 139 Or App 526, 912 P2d 948 (1996), rev’d on other grounds 325 Or 239, 935 P2d 1202 (1997). Now, for a second time, the dissent urges that we disavow our language that “exploitation occurs when unlawful police conduct reveals information that focuses police attention on the defendant and prompts them either to seek the defendant’s consent or to ask questions leading to consent.” Stanley, 139 Or App at 535. The dissent complains here that, “[u]nder the test as articulated in Stanley, it is difficult to imagine an encounter between a police officer and a defendant that will not yield some information to the officer’s trained eye.” 183 Or App at 71-72 (Deits, C. J., dissenting). It concludes that, under Stanley’s language, we have, in effect, resorted to a “but for” or mere causation test that was rejected in Rodriguez. Finally, it appears to reason that all that could exist here, under the trial court’s findings, is mere causation between the illegal stop and Deese’s observation of the bulge in defendant’s pocket as, in its view, also occurred in Stanley.

We first point out that the facts in Stanley are different from the facts in this case. There, the police responded to a dispatch call of suspicious activities at a grocery store. The store personnel were concerned that the defendant was going to rob the store. The second officer, who responded immediately, frisked the defendant upon arrival and discovered a metal container that did not feel like a weapon. He asked the defendant for consent to search the container which, when opened, exposed to view three prescription pills. The officer allowed the defendant to keep the tin and drugs. Later, the officer asked the defendant to show the container and pills to another officer, and in the course of complying, the defendant exuded an odor of controlled substances that the officers had not otherwise noticed. That odor led to the defendant’s arrest and search, which revealed controlled substances for which the defendant was prosecuted. Our statement about which the dissent complains was made in the context of reasoning that the officer exploited the unlawful frisk “because there is ‘a direct connection’ between asking defendant to produce the container and the fact that [the officer] had conducted an illegal frisk.” Stanley, 139 Or at 535-36. Our statement about which the dissent complains was intended only to put the Rodriguez test in the context of the facts in Stanley.

Beyond that observation, the dissent misses the point in both Stanley and in this case. Contrary to its concern that observations by officers during encounters with citizens will lead invariably to suppression of evidence under the majority view, both this case and Stanley involve facts where the officers admittedly took advantage of the circumstances of their unlawful conduct (the frisk in Stanley and the illegal stop here) by trading on or exploiting the information learned to obtain consents to search, much in the same manner as the police traded on the odor of the marijuana detected as a result of their illegal roadblock in Williamson. In each case, the officers used the information to their advantage. That type of “use” of information by the police to obtain an advantage will not necessarily occur in every situation where it turns out that initial police presence or conduct was unlawful. For instance, those kinds of facts were absent in Rodriguez where the illegality of the warrant was unrelated to the request for consent to search and no fact learned during the warrant’s execution prompted the request. See also State v. Wenger, 143 Or App 90, 99, 922 P2d 1248 (1996); State v. Land, 106 Or App 131, 806 P2d 1156 (1991). Here, Deese took advantage of an unlawful stop to make an observation of a “suspicious bulge” that in turn prompted his question, “do you have any weapons, knives or drugs on you?” The answer to that inquiry led to the request for consent to search, and was a clear exploitation of the prior illegality that began when Deese gestured for defendant to approach him. Consequently, the trial court erred in denying defendant’s motion to suppress evidence seized as a result of defendant’s consent.

Reversed and remanded.

Footnotes

1

Defendant testified that “Deese was still in the car just flagging me over!,] so I started to walk over to the car[.]”

2

It is unclear when Deese heard from the dispatcher regarding the result of the record check. In the pretrial hearing, Deese testified that the record check was not reported back to him until after he had asked to search defendant for weapons. In his trial testimony, Deese indicated that he called to request the record check and that he had the results of the record check “shortly thereafter.”

3

Defendant testified:

“I had my coat zipped shut and I had my gloves on and they were slightly hanging out. He says, ‘That bulge in your coat is making me a little nervous. What do [you] got, do you got any guns or drugs in there?’ I said, ‘no, they’re my gloves.’ As soon as I pulled my gloves out like this he immediately grabbed me and was checking the insides of my pockets. I didn’t want to, you know, get his hands out, I didn’t know what to do, I was afraid I’d get a, you know, assault or resisting arrest or whatever and then he just kind of patted me down and he felt that vital] and goes, ‘what’s that?’ I said, ‘it’s nothing.’ He says, T want to see that “nothing.” ’ So I reached in and I gave him my, gave him that vital].”

4

Procedurally, defendant was first indicted under case number 97-81-CR, and then the indictment was dismissed in that case. Defendant was again indicted in case number 97-1546, in which the conviction occurred. The ruling on the motion to suppress was made in 97-81-CR, but in 97-1546 the court took judicial notice of the record made in 97-81-CR and adhered to the ruling made therein.

5

The state concedes that there was nothing in defendant’s conduct or appearance that would have given the officer reason to suspect him of any crime.

6

See also State v. Smith, 73 Or App 287, 698 P2d 973 (1985) (holding that the use of the defendant’s identification to check for arrest warrants transformed a mere conversation with the defendant into a stop under ORS 136.615).

7

See, e.g., Smith, 73 Or App at 292 (holding that “the use of defendant’s identification to check for arrest warrants constituted a show of authority that would lead a reasonable citizen in defendant’s circumstances to believe that he was not free to leave unless the warrant check came back clear[,]” even when the actual identification itself had been returned to the defendant).

8

In this case, the dissent says, “The proper focus under an exploitation analysis is not on why the officer acted but why the defendant consented.” 183 Or App at 72 (Deits, C. J., dissenting). The dissent’s position is clearly inconsistent with the reasoning in Rodriguez and Weaver. As we said in State v. Stanley, 139 Or App 526, 534, 912 P2d 948 (1996), “Unlike a Voluntariness’ analysis, which focuses on the person giving consent, the dispositive consideration in the ‘exploitation’ inquiry is the prior illegality’s effect on the police.” The dissent concedes as much elsewhere in its opinion when it correctly says that “exploitation concerns whether the police took advantage of the circumstances of their unlawful conduct.” 183 Or App at 66 (Deits, C. J., dissenting) (emphasis in original).