State v. Morgan

203 P.3d 927, 226 Or. App. 515, 2009 Ore. App. LEXIS 148

• Court: Court of Appeals of Oregon
• Decided: March 19, 2009
• Docket: 062638BFE; A134236
• Status: Published

Opinions

EDMONDS P. J.

Defendant appeals from a conviction for unlawful possession of heroin, ORS 475.854, and assigns error to the trial court’s denial of her motion to suppress evidence seized during a traffic stop. We affirm.

The trial court made the following findings of fact:

“1) Defendant Morgan was a passenger in a vehicle driven by Defendant Brand.

“2) Deputy Lance lawfully stopped the vehicle driven by Brand.

“3) Brand had a suspended license. He was arrested and placed in the Deputy’s patrol vehicle.

“4) Deputy Lance checked to see if Morgan had a valid license to drive the vehicle. She did. She was also the registered owner of the vehicle.

“5) Deputy Lance asked for and received permission from Morgan to search the vehicle prior to releasing it to her.

“6) When Morgan exited the vehicle she also took her bag. The deputy told her he needed to look in her bag for officer safety if she was going to keep it or she could leave it in the car.

“7) Morgan clutched her bag, shook her head and backed up into the car when the deputy stated he needed to search the bag. She became more nervous upon his statement. She then reached into the bag.

“8) The deputy then took the bag for officer safety reasons and saw paraphernalia for drug use.”

Based on the above findings, the trial court concluded that Lance was entitled to establish whether defendant had a valid license before releasing the vehicle to her. It also held that checking defendant’s license was not a seizure because, as a passenger, she could have left the area of the traffic stop without giving Lance her license. Additionally, the court applied the principle that an officer may take reasonable steps necessary for the officer’s protection based on specific and articulable facts of which the officer was aware at the time. Thus, the court reasoned,

“Here the defendant had possession of a large bag, big enough to contain weapons, became nervous when told the bag would need to be searched and then clutched the bag and put her hand in it. These facts along with the other facts set forth above are adequate for the officer to seize the bag and search it in order to protect himself.”

On appeal, defendant argues that she was unlawfully stopped without reasonable suspicion when the officer requested her identification before turning her car over to her. Alternatively, she argues that she was unlawfully stopped when the officer asked her consent to search the car because the officer lacked reasonable suspicion to search the car. Finally, defendant argues that a search for officer safety purposes was not reasonable under the circumstances. The state counters that the officer was required by ORS 809.720 to impound and tow the car unless he could ascertain the ownership of the car and whether the putative driver was validly licensed. Under the circumstances, the state concludes that a reasonable person would have understood the officer’s inquiry to have been nothing more than a brief conversational encounter, one that did not amount to a restraint on defendant’s freedom of movement. The state also argues that the officer’s request for consent to search the car did not amount to a seizure of defendant’s person under Article I, section 9, of the Oregon Constitution and that the officer had a reasonable concern for his safety when defendant put her hand into the bag.

Under the holding in Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968), we are bound by the trial court’s findings of historical fact if they are supported by the evidence. If findings are not made on all the factual issues, and there is conflicting evidence regarding those issues, we will presume that the trial court decided those factual issues in a manner consistent with its ultimate conclusion. Here, the trial court’s findings are supported by the evidence. Thus, the question on appeal is whether the trial court came to the correct legal conclusions based on those findings.

ORS 809.720(3) provides, in part:

“A vehicle impounded under subsection (1) of this section shall be released to a person entitled to lawful possession upon compliance with the following:

“(a) Submission of proof that a person with valid driving privileges will be operating the vehicle[.]”

The trial court found that defendant’s vehicle was effectively impounded at the point in time when Lance asked defendant for her driver license. Thus, the state is correct when it asserts that the request for, and brief retention of, defendant’s driver license for a records check to determine if she could lawfully drive her vehicle was for a noncriminal investigative purpose. In that light, this case is analogous to what occurred in State v. Holmes, 311 Or 400, 813 P2d 28 (1991). In Holmes, the defendant was stopped by an officer so that he could be advised of an accident in the road ahead and rerouted around the accident scene. Oregon statutes prescribe the authority of a police officer to direct, control, or regulate traffic at the scene of an accident and to require a person to stop his or her vehicle. In determining whether the officer’s actions violated the defendant’s rights under Article I, section 9, of the Oregon Constitution, the court identified three categories of encounters along the continuum of contacts between law enforcement officers and citizens. Those categories include (1) encounters that do not constitute seizures and for which no justification is required under the constitution, (2) restraints of movement for criminal investigative purposes that require reasonable suspicion that a crime has been committed, and (3) arrests that require a demonstration of probable cause that a crime has been committed and that the defendant committed it. The Holmes court held that no seizure of the defendant’s person occurred in the constitutional sense when the officer stopped the defendant’s car to advise the defendant of the accident and the detour. That reasoning informs the result in this case. We conclude based on the above circumstances that, when Lance asked defendant for her driver license and retained it in order to comply with the requirement of ORS 809.720, those actions did not rise to the level of a seizure under Article I, section 9.¹

Defendant also argues that she was unlawfully seized when, before “ ‘releasing the vehicle’ to defendant!,] Lance asked her for permission to search the car to make sure he ‘wasn’t leaving her with any weapons or contraband.’ ” (Footnote omitted.) Focusing on the fact that Lance asked for defendant’s identification before he asked for consent to search her car, defendant concludes,

“[a] reasonable person would not feel free to leave under those circumstances. Requesting consent to search does not itself necessarily mean that a person is constitutionally seized. However, it does indicate a seizure under these circumstances.”

Thus, in defendant’s view, because the request for consent to search was unlawful, all subsequently discovered evidence must be suppressed.

We disagree that a request for consent to search following a lawful retention of defendant’s driver license would cause a reasonable person to believe that his or her liberty or freedom of movement was being restrained under the circumstances of this case. We note that, in making the request, Lance did not act in a coercive manner. Under the “seizure” standards of Article I, section 9, “law 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.” Holmes, 311 Or at 410. “Rather, [an] encounter is a ‘seizure’ of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse.” Id. Moreover, it is immaterial that the content of the conversation is different from what might be engaged in by ordinary citizens. Id. Under the circumstances of this case, we conclude that Lance’s request to search defendant’s car before he released it to her did not implicate the provisions of Article I, section 9.

The final issue is whether it was reasonable for Lance to believe that defendant presented a clear and present danger to his safety when she put her hand inside the purse. The Supreme Court’s decision in State v. Amaya, 336 Or 616, 89 P3d 1163 (2004), provides some general parameters in deciding the issue in this case. In Amaya, an officer asked the defendant, a passenger, to step out of a van that had been stopped for a traffic violation. The defendant took her bag with her when she stepped out of the van, although the officer had encouraged her to leave it inside. The defendant placed the bag on the ground between her feet where it was covered by her trench coat. The officer became concerned for his safety because he believed that she might have a weapon in the bag. The officer asked her what was in the bag, and she said that there was a gun in the bag for which she did not have a concealed weapons permit. The officer then seized the bag, searched it, and found a gun. Based on the totality of the circumstances, the court concluded that the officer reasonably suspected that the defendant posed an immediate threat to his safety. Id. at 633-34.

Defendant seeks to distinguish the circumstances in this case from the circumstances in Amaya. She argues that she was never aggressive, she was surrounded by two police officers who were armed, and “[s]he did not consent to a search of her purse and her actions in asserting her right to privacy should not be spun into a threat to officer safety for the sake of justifying the search of defendant’s purse.”

Initially, we observe that cases involving the lawfulness of searches and seizures under Article I, section 9, must be decided on their own facts. Although the circumstances of other cases, including Amaya, may inform a particular result, they are rarely controlling because of the myriad of factual circumstances that can arise. In this case, Lance testified that while he was asking for consent to search the car, defendant spontaneously stepped out of the car with her purse although she had not been asked to leave the car. He explained, “The purse actually came as a surprise to me. When she came out with it, it was a strange behavior that drew my attention to it.” He elaborated:

“What caused me concern in Ms. Morgan’s case was her behavior in the way she grabbed the purse, her behavior and response to my offering to let her leave it in the vehicle, and then her behavior as she backed away from me and tried to reach her hand inside of the purse. Truly at that— at the point that she got out of the vehicle, it made very little difference to me one way or another if she left the purse in the vehicle or if she took it with her. My problem was with leaving her with access to a weapon when I wasn’t going to be able to insure that there wasn’t one in it.”

In State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987), the court noted that

“it is not our function to uncharitably second-guess an officer’s judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations.”

In light of defendant’s actions that were presented to Lance, we conclude that the general principle from Bates that it is not a court’s function to second-guess an officer’s judgment who has to make what could be a life-or-death decision in a matter of seconds is applicable to the circumstances of this case. We note that the car was in the de facto legal custody of the officer — he did not have to turn it over to defendant; rather, he could have lawfully continued with the impoundment process. Moreover, defendant had voluntarily given Lance permission to search the car. In order to search the car, it was necessary that defendant leave the car. The execution of the search of the car also meant that the officer would be required to turn his back on defendant, that she could be out of his line of sight, and that he would be preoccupied with the details of the search.

Lance told defendant that she could leave the purse in the car or take it with her, but if she took it with her, he would have to search it. There is no evidence that the purse would have been searched had defendant left it in the car. The officer’s communication to defendant did not violate Article I, section 9. Rather, it gave her a choice: leave the purse in the car where it would not be searched or remove it from the car where it would be searched. Had the former occurred, there would have been no invasion of any privacy or possessory interest that would have constituted a search or seizure under Article I, section 9. Had the latter occurred, any seizure and search would have been the result of defendant’s voluntary consent. Defendant opted for neither alternative.² Instead, she grabbed the purse, nervously backed away from the officer, and attempted to reach or did actually reach inside it, actions that came as a surprise to Lance. Defendant’s actions prompted Lance to seize the purse because he was concerned that defendant was reaching for a weapon.

The dissent apparently agrees with all the above facts but opines that the officer’s belief that defendant could be reaching for a weapon was not an objectively reasonable belief, observing, in part, that defendant “was not suspected of any crime,” and was not “aggressive in her conduct or speech.” 226 Or App at 528 (Sercombe, J., dissenting). What the dissent fails to effectively confront is the import of defendant’s failure to comply with the officer’s instructions followed by her furtive gestures with respect to her purse. Defendant had no objectively apparent reason to clutch her purse, back away from the officer, and then to reach into it. The dissent relies on the “common observance that a person is loath to part with his or her wallet or purse” and concludes that “defendant’s behavior was in no way surprising or suspect.” Id. at 528. But even if the dissent’s “common observance” is accurate, it does not account for the fact that defendant reached into her purse under circumstances where she had been asked to leave it in the car or to permit it to be searched. At the point in time when defendant reached into her purse, a reasonable person would question what motivation prompted that action when there was no apparent reason for it. Presumably, the dissent would not construe the officer safety rule to require that an officer actually observe a person withdraw a weapon from a closed container before the officer could seize the container to protect himself from a potentially dangerous situation.

In sum, the Bates rule does not require probable cause before an officer can take reasonable steps to protect himself and others during the course of a lawful encounter with a citizen. Rather, the rule requires a “reasonable suspicion,” based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury. In this case, the officer articulated specific facts that prompted him to seize defendant’s purse; he did not act based on an intuition or a sixth sense. Thus, the determinative issue is whether those facts amount to a “suspicion” that a reasonable person could arrive at, or whether the officer’s subjective suspicion was objectively unreasonable. What constitutes a “reasonable suspicion” was discussed in a different context by the court in State v. Valdez, 277 Or 621, 624-29, 561 P2d 1006 (1977) (construing ORS 131.605(5)).³ In fleshing out what the legislature intended when it enacted ORS 131.605(5), the court distinguished police action based entirely on officer instinct and experience from suspicions based on specific, articulable facts. We apply the same standard in this context. Here, Lance based his subjective belief on defendant’s unannounced act of reaching into her purse after backing away from him and ignoring his instructions. Those actions constitute specific, articulable facts that would cause a reasonable person to be concerned for his or her safety, given the totality of the circumstances. Accordingly, we decline to second-guess Lance’s decision and to hold that his suspicion was unreasonable.

Affirmed.

1 The facts of this case are in contrast to the facts in State v. Ashbaugh, 225 Or App 16, 18-19, 200 P3d 149 (2008), where the request to search was preceded by police officers’ unlawful detention of defendant’s person when they asked for and retained her identification for a period of time.

2 The dissent argues that defendant’s purse was seized when “defendant was ordered to part with it * * 226 Or App at 528 (Sercombe, J., dissenting). The “seizure” of an object occurs “when there is a significant interference with a person’s possessory or ownership interests in property.” State v. Owens, 302 Or 196, 206-07, 729 P2d 524 (1986). The dissent inserts an issue into the case that was not presented to the trial court or to this court on appeal. In the trial court, defense counsel did not argue that Lance’s statement effectuated a seizure of defendant’s purse by significantly interfering with defendant’s possession of it. Rather, he made a different argument: that “[Lance] hasn’t got a right to ask her to search that bag unless he has a reason to believe, before he asks that question, that she has something that is either contraband or may be dangerous to him.” On appeal, defendant reiterates that her purse was seized when the officer asked for her identification, or at a later time when the officer asked for consent to search her car, and that Lance did not have a reasonable suspicion that defendant presented a danger to his safety when he seized defendant’s purse. Significantly, the trial court did not have the opportunity to rule on the issue of whether defendant’s purse was seized when Lance asked defendant to leave her purse in the car or allow it to be searched. Moreover, the trial court did not find that Lance “ordered” or commanded defendant to give the purse to him as the dissent implies. Rather, it found that as a condition of the search of the car, “he needed to look in her bag for officer safety if she was going to keep it or she could leave it in the car.” Defendant could have revoked her consent to search the car and permitted it to be impounded, or left the purse in the car, or delivered it to Lance to be searched. Whether Lance’s giving of those alternatives to defendant amounted to a significant interference with defendant’s possessory interest in the purse as distinguished from whether Lance’s conduct significantly interfered with defendant’s freedom of movement is not an issue that has been briefed or argued by the parties. Consequently, under ORAP 5.45, the issue the dissent frames for review is not properly before us.

3 ORS 131.605(5) provides that the words “ ‘[r]easonably suspects’ means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts as authorized in ORS 131.605 to 131.625.”