State v. Musser

253 P.3d 340, 253 Or. App. 178, 2012 Ore. App. LEXIS 1301
CourtCourt of Appeals of Oregon
DecidedOctober 24, 2012
Docket201001347; A145540
StatusPublished
Cited by8 cases

This text of 253 P.3d 340 (State v. Musser) 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. Musser, 253 P.3d 340, 253 Or. App. 178, 2012 Ore. App. LEXIS 1301 (Or. Ct. App. 2012).

Opinion

DUNCAN, J.

This is a criminal case in which defendant appeals the trial court’s judgment convicting her of possession of methamphetamine, ORS 475.894. On appeal, defendant assigns error to the trial court’s denial of her motion to suppress evidence that a police officer obtained after he stopped her for criminal trespass in the second degree, ORS 164.245. Defendant asserts that (1) the stop was illegal because it was not supported by reasonable suspicion, and (2) the illegal stop tainted the subsequently discovered evidence. We agree and, therefore, reverse and remand.

Whether an officer has reasonable suspicion to stop a person is a question of law that we review for legal error. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). When doing so, we are bound by the trial court’s factual findings, provided there is constitutionally sufficient evidence to support them. State v. Hall, 339 Or 7, 10, 115 P3d 908 (2005). We state the relevant facts in accordance with that standard.

On January 2, 2010, at around 10:00 p.m., Springfield Police Officer Grice was patrolling the alley behind the Springfield Value Village shopping center. The shopping center consists of two large buildings, one to the west and one to the east. Each building is occupied by several businesses. The back doors of the businesses open to the alley. One of the businesses, Value Village, is a thrift store, and it maintains an area in the alley for the public to bring goods to donate for resale. The alley runs between two city streets. There are no gates or signs restricting access to the alley from the streets.

Grice was patrolling the alley because, in his experience, people often engage in theft, drug use, and other illegal activities there. As Grice drove through the alley, he saw defendant and another person standing on a walkway that runs between the shopping center’s two buildings, connecting the front of the shopping center to the alley. The walkway runs along the side of, and around the back of, the western building. It is elevated a few feet above the surface of the alley, which is paved. It has railings to keep people from falling off the walkway onto the pavement, and it has a ramp down to the pavement.

[180]*180As Grice approached in his patrol car, defendant began to walk away, toward the front of the shopping center. Grice accelerated, stopped, got out of his patrol car, approached defendant and her companion, and said, “I need to talk to you.” Grice suspected they were trespassing. Defendant continued to walk away, and Grice called out, “Hey, come back here. I need to talk to you.” Defendant turned around and walked to where Grice was standing.

Grice asked defendant for her identification, and defendant gave him a credit card with her name and picture on it. As defendant searched her purse for additional identification, Grice saw two pouches in defendant’s purse and asked if he could search them. Defendant consented, and Grice searched the pouches. He then asked for consent to search defendant’s entire purse. Defendant consented, and Grice searched the purse. He found a makeup bag, and, inside the makeup bag, he found a baggie containing a white crystalline substance that field-tested positive for methamphetamine. Grice arrested defendant, and the state subsequently charged her with possession of methamphetamine.

Defendant filed a motion to suppress the evidence Grice obtained after he stopped her for trespassing, asserting that (1) the stop was illegal because it was not based on reasonable suspicion, and (2) the illegal stop tainted the subsequently discovered evidence. The state conceded that Grice stopped defendant, but asserted that Grice had reasonable suspicion that defendant was trespassing.1

At the hearing on defendant’s motion to suppress, the parties presented evidence regarding the location where Grice saw defendant. As mentioned, Grice had seen defendant on an elevated walkway that connects the front of the shopping center to the alley. The state introduced a photograph of the area around the walkway, as well as photographs of other areas in the alley. The photograph of the area around the walkway — which, as noted, runs [181]*181along the side and around the back of the western building — shows a sign in the upper corner of the back wall of the western building. The sign states, “No trespassing or loitering 11 PM - 7 AM.” Grice testified, “I don’t remember ever seeing that sign before [January 2, 2010].”

A second photograph shows the area to the east of the elevated walkway — specifically, the back of a business in the eastern building. The business has a loading dock, with parking spaces for at least two semi-trucks. In the photograph, a semi-trailer is parked in one of the spaces and a dumpster is in another. To the east of the dumpster is a second dumpster. On the wall above the second dumpster is a sign that states, in both English and Spanish, “NO TRESPASSING NO LOITERING.” Grice testified that the sign was posted on the night he stopped defendant and is approximately 50 feet east of the elevated walkway.

A third photograph shows two signs further to the east, posted near the Value Village’s donation area. One states, “Donation hours Monday-Saturday 9-9 Sunday 10-7.” The other states, “NO DUMPING. Donations Only Accepted During Business Hours. Violators will be prosecuted to the full extent of the law.” Grice testified that the signs are about 100 feet east of the elevated walkway.

At the time Grice saw defendant, two restaurants in the shopping center were open. Both are near the elevated walkway.

The trial court denied defendant’s motion to suppress, concluding that Grice had reasonable suspicion to stop defendant for criminal trespass because, the court explained, defendant and her companion were in an area where there was “frequent criminal activity, at an hour where there [was] no legitimate activity going on.” Following a bench trial, the court convicted defendant. Defendant brought this appeal, challenging the court’s denial of her motion to suppress.

On appeal, the parties renew the arguments they made before the trial court. Thus, the issue on appeal is whether Grice had reasonable suspicion to stop defendant for criminal trespass.

[182]*182Under Article I, section 9, of the Oregon Constitution, which protects individuals from unreasonable searches and seizures, a stop is a seizure. State v. Ashbaugh, 349 Or 297, 308-09, 244 P3d 360 (2010). To be reasonable, it must be supported by reasonable suspicion of criminal activity or an imminent threat of serious physical injury. Id. at 309. An officer has reasonable suspicion that a person has committed or is about to commit a crime if the officer “holds a belief that is reasonable under the totality of the circumstances existing at the time and place” the officer acts. ORS 131.605(6); State v. Belt, 325 Or 6, 11, 932 P2d 1177 (1997). To be objectively reasonable, an officer’s suspicion must be based on specific and articulable facts. Ehly, 317 Or at 80.

ORS 164.245

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Related

State v. Wampler
530 P.3d 133 (Court of Appeals of Oregon, 2023)
State v. Maciel-Figueroa
356 P.3d 674 (Court of Appeals of Oregon, 2015)
State v. Musser
Oregon Supreme Court, 2014
State v. Moore
331 P.3d 1027 (Court of Appeals of Oregon, 2014)
State v. Wiggins
324 P.3d 626 (Court of Appeals of Oregon, 2014)
State v. Ross
304 P.3d 759 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
253 P.3d 340, 253 Or. App. 178, 2012 Ore. App. LEXIS 1301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-musser-orctapp-2012.