State v. Kennedy

609 P.2d 438, 45 Or. App. 911, 1980 Ore. App. LEXIS 2618
CourtCourt of Appeals of Oregon
DecidedApril 14, 1980
DocketC 79-01-30055, CA 15145
StatusPublished
Cited by6 cases

This text of 609 P.2d 438 (State v. Kennedy) 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. Kennedy, 609 P.2d 438, 45 Or. App. 911, 1980 Ore. App. LEXIS 2618 (Or. Ct. App. 1980).

Opinions

[913]*913CAMPBELL, J.

The state appeals from a trial court order suppressing evidence seized in a search of defendant at Portland International Airport. The trial court ruled that the police lacked reasonable suspicion to stop defendant. We affirm.

At the pretrial suppression hearing the state introduced the following evidence. Officer McLaughlin of the Portland Police Department received a call from a Fort Lauderdale, Florida, police officer informing him that two persons who fit a "drug smuggler’s profile” had boarded a plane bound for Portland. The Florida officer related the following information concerning the suspects: (1) a detailed physical description of defendant and his companion; (2) defendant arrived at the airport ten minutes before the flight and had only hand luggage; (3) one person bought both one-way tickets, paying with cash; (4) defendant was carrying a "large amount” of cash; (5) they appeared nervous as if they were being watched; and (6) they left a phone number of a hotel with the airline clerk from whom they purchased the tickets, and the detective, by inquiring at the hotel, learned that no one by defendant’s name had been registered there during the past few days.

After calling Fort Lauderdale and verifying the officer’s identity and the facts previously related, Officer McLaughlin and several other officers went to Portland Airport to intercept defendant and his companion. Two officers followed defendant through the baggage claim area where they picked up no luggage and one of the officers, Officer Johnston, hailed defendant on the escalator in the underground passageway to the parking lot. He testified there was nothing unusual about defendant’s conduct and that he acted solely on the basis of the information from Florida. According to Johnston, defendant turned to Johnston and asked if Johnston was addressing him. Johnston, who was out of uniform, identified himself [914]*914as a police officer and displayed his badge. A second officer was present and stood behind Officer Johnston. Johnston then informed defendant that he "had information that led [him] to believe” that defendant was carrying narcotics on his person or in his luggage. Defendant denied that he was carrying narcotics and offered to let Johnston search his luggage. The search turned up a small glass vial, empty on the inside, but which had a white powder along the threads, and a razor blade with masking tape over the edge. The white powder was identified by Johnston as cocaine. Defendant denied knowledge of the origin of the vial. After further events not pertinent to this appeal, the officers escorted defendant to his car and released him.

We first address the question whether the police needed any justification in order to initiate the encounter with defendant. In State v. Warner, 284 Or 147, 161, 585 P2d 681 (1978), the court set out three generally recognized categories of police-citizen "street encounters,” in descending order of justification:

"(1) arrest, justified only by probable cause; (2) temporary restraint of the citizen’s liberty (a 'stop’), justified by reasonable suspicion (or reliable indicia) of the citizen’s criminal activity; and (3) questioning without any restraint of liberty (mere conversation), requiring no justification.” (Footnote omitted.)

The issue here is whether the encounter was a "stop” or "mere conversation.” The ultimate test for a stop is whether, under all the circumstances, the person encountered would feel free to walk away. State v. Evans, 16 Or App 189, 196, 517 P2d 1225 (1974).

The person’s cooperation with the officer after the initiation of the encounter is not determinative on the question of whether a stop occurred. All that need be shown is that the person altered his course of conduct in response to the officer’s show of authority. State v. Warner, supra, 284 Or at 162.

[916]*916"A. Well, he had been using it approximately eight months and, during those eight months, he had made approximately fifty cases.
"Q. What do you mean by 'he had made fifty cases’?
"A. Well, he provided information to outside agencies or had stopped someone at the airport that had triggered the drug smuggler’s profile and, subsequent to those stops, were conversations that he obtained permission to search their baggage or their person, as the case might be, and drugs were found.
"Q. Now, have you, in the course of your employment with the Portland Police Bureau, had any experience other members of the SID Divithe actual use of this profile?
"A. Yes, sir, we have.
"Q. And what is that?
"A. Within the past year, I have been involved in three of these drug smuggler profiles. And the office, outside of myself, has had one other experience. So there would be four in the past year.
"And on each of these occasions, information similar to this has been provided to us, matching descriptions of the person or persons involved in suspected drug trafficking. We would go out to the airport, meet them out there, ask permission to talk to them for awhile, explain to them who we are, or what we are doing out there, why we are there, and ask permission to search their person or their bags or both.
"And then, having received the permission, then we would make the search and, on all the occasions, we have either found drugs or drugs have one occasion, drugs were attempted to be destroyed and enough were found on the floor and scraped up— and in the residue of the the District Attorney’s office has issued prosecution on each of the four cases.
"Q. So you are telling the court that, in every instance that you have acted upon information provided in the framework of the drug trafficker’s profile, that, in every instance, it has resulted in a discovery of dangerous or narcotic drugs?
"A. Yes, sir.”

[917]*917Whether or not such a profile could ever be sufficient to justify a stop,1 by itself or in conjunction with other factors, the testimony here does not supply us enough information from which to judge the profile’s reliability. For instance, we have no evidence as to the elements making up the profile, the number of these elements that must be satisfied for the police to conclude that a suspect fits the profile, or the basis for including each element in the profile. Further, knowing only that a Florida officer successfully applied the profile 50 times in eight months in an undisclosed number of cases, and that Officer McLaughlin is aware of four successful applications of the profile out of four cases in a one-year period, adds nothing to our knowledge of the profile.

In contrast, in United States v. Lopez, 328 F Supp 1077 (E.D.N.Y.

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State v. Kennedy
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State v. Kennedy
609 P.2d 438 (Court of Appeals of Oregon, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
609 P.2d 438, 45 Or. App. 911, 1980 Ore. App. LEXIS 2618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kennedy-orctapp-1980.