State v. Vinh Ba Nguyen

212 P.3d 1284, 229 Or. App. 719, 2009 Ore. App. LEXIS 1038

Opinions

EDMONDS, P. J.

Defendant appeals a judgment of conviction for carrying a concealed weapon, ORS 166.240(1), and assigns error to the denial of his motion to suppress the evidence of the weapon. He contends that the seizure of the weapon was the product of an unlawful deprivation of his liberty of movement under Article I, section 9, of the Oregon Constitution. We agree with defendant’s argument and reverse and remand.

City of Portland Police Officer McCollister testified for the state at the hearing on the motion to suppress. McCollister was aware that the parking lot in Lents Park closed to the public at 10:00 p.m. When he arrived at the park at 11:45 p.m., on routine patrol, he observed several cars parked in the parking lot and “five or six people milling about in the parking lot and on the sidewalk.”¹ He believed that the group had been drinking alcoholic beverages. McCollister explained, “I approached the group. They were kind of milling about and I could see several beer bottles, beer cans kind of strewn just inside the park.” According to the officer, the beer bottles or cans were “roughly” 10 feet from the group. McCollister testified that he formed the subjective belief that the bottles or cans belonged to the group of people that he had observed upon arriving because “there’s a tree just off the parking lot in there, where several that had walked behind the tree and the—the beer cans, beer bottles were basically situated next to the tree.” McCollister then asked the members of the group whether the cars in the parking lot belonged to them, and “several people said that they were their vehicles.” At that point, two other police cars arrived on the scene with their overhead lights on. One of the arriving officers informed McCollister that some of the people in the group had been present at the scene of a recent shooting in the area.²

McCollister had everyone in the group sit on the ground. McCollister testified, “At that point, then I—I started asking some of the people if they had any weapons on them[.]” One of those persons was defendant, who, according to McCollister, responded, “Go ahead.” While conducting a search of defendant’s person, the officer seized a pair of brass knuckles from one of his pockets.

At the hearing on the motion to suppress, defendant contended that McCollister lacked reasonable suspicion to believe that the group was involved in criminal activity when the police cars arrived with their lights on and he had the group sit on the ground. However, the trial court ruled, “I’m going to find that there was reasonable suspicion, and so I’m denying the motion.” The court explained,

“In our case, it was 11:45 at night on March 17, 2007. The parking lot of the public park was closed to the public. The officer observed several cars parked in the parking lot and has noted from past experience that there are signs posted indicating that individuals are not allowed to park there after 10:00 o’clock. * * *

“[0]n this particular evening, the officer approached a group of individuals, including [defendant], who were milling about near the vehicles. He saw several beer cans that he indicated were approximately 10 feet from the group and believed that those cans were associated with the individuals in the group. I do agree that he did not articulate anything specifically directed to [defendant], but I believe, under the circumstances of a case like this, where an officer has a group and believes that individuals in the group are connected with a particular crime, that he—a reasonable suspicion has occurred, that he is authorized to approach the group as a whole and question individuals, as part of his investigation.”

Under Article I, section 9, of the Oregon Constitution, an officer must have a reasonable suspicion of criminal activity before the officer can lawfully interfere with an individual’s freedom of movement, even on a temporary basis. State v. Holmes, 311 Or 400, 407, 813 P2d 28 (1991). In this case, McCollister detained defendant because he believed that defendant was in violation of the Portland City Code’s prohibition against drinking in public. Accordingly, McCollister’s actions were subject to the constraints imposed by Article I, section 9. The analysis of a defendant’s rights under Article I, section 9, is substantially the same as the analysis of a defendant’s statutory rights under ORS 131.605 to 131.625. State v. Kennedy, 290 Or 493, 497, 624 P2d 99 (1981). For purposes of the Oregon Criminal Code, a “reasonable suspicion” is defined as a “belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts” to deprive a person of his or her liberty. ORS 131.605(5). Moreover, “if a police officer is able to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime, the officer has ‘reasonable suspicion’ and hence may stop the person for investigation.” State v. Ehly, 317 Or 66, 80, 854 P2d 421 (1993).

With the above principles in mind, we turn to the provisions of the Portland City Code, the circumstances of this case, and the reasoning of the trial court and the dissent. Section 14A.50.010(B) of the Portland City Code provides, in part,

“It is unlawful for any person to have in his possession while upon any street, sidewalk, or other public right-of-way any bottle, can, or other receptacle containing any alcoholic liquor which has been opened or a seal broken or the contents of which have been partially removed.”

The word “possess,” as used in section 14A.50.010(B), is expressly defined by the Portland City Code as “to have physical possession or otherwise to exercise dominion or control over property.” PCC 14A.10.010(N). Additionally, “possess” is a word of legal art commonly used in statutes or ordinances prohibiting the possession of alcoholic beverages in different contexts. See, e.g., ORS 811.170(l)(b) (making it unlawful for a person to possess an open container of alcoholic liquor while in a motor vehicle on a public highway).

The word “possess” is also defined for purposes of the Oregon Criminal Code in ORS 161.015(9). That statute provides that the word “possess” means “to have physical possession or otherwise to exercise dominion or control over property.” The statute uses language identical to the language in the Portland City Code and codifies the concepts of actual and constructive possession. The rule of “constructive possession” broadens the crime of possession beyond actual physical control to situations in which actual physical control cannot be directly proved but there is an available inference that the person exercised dominion or control over the object. State v. Casey, 346 Or 54, 59, 203 P3d 202 (2009); see also State v. Fries, 344 Or 541, 185 P3d 453 (2008) (holding that where the defendant transported marijuana plants at the direction of a friend, he “possessed” them for purposes of ORS 475.840(3)).

Additionally, the word “possess” has been interpreted by the Supreme Court with respect to related state statutes. In State v. Williams, 117 Or 238, 243 P 563 (1926), the defendant was indicted for unlawfully possessing intoxicating liquor. The parties stipulated that, at the invitation of a friend who was the owner and possessor of a bottle of intoxicating liquor, the defendant took a drink from the bottle and immediately returned it to his friend. The court held that there were no facts or circumstances “from which the jury could have drawn a reasonable inference that defendant was exercising some control, dominion or ownership over the intoxicating liquor.” 117 Or at 243. In State v. Gordineer, 229 Or 105, 111, 366 P2d 161 (1961), the court explained that “possession” as used in former ORS 471.430 includes, in addition to guilty knowledge, “the intent * * * to possess full control over the liquor with the right to enjoy its consumption to the exclusion of others.”

The above definitions support the conclusion that the Portland City Council intended the word “possession” in PCC 14A.50.010(B) to refer to the legal concepts of actual and constructive possession. With those concepts in mind, we turn to the circumstances of this case to inquire whether McCollister’s suspicion that the ordinance had been violated by defendant’s possession of an open container of alcohol was objectively reasonable. McCollister based his suspicion that the ordinance had been violated on his observation that the group of which defendant was a part was about 10 feet away from “several beer bottles, beer cans kind of strewn just inside the park.” The beer containers “were basically situated next to the tree,” an area from which “several [people] * * * had walked.”

It is clear from the officer’s testimony that he did not observe defendant in actual possession of any of the beer cans strewn around the tree; rather, defendant was 10 feet away from the area in which the containers were scattered. Moreover, there is no evidence that the officer smelled the odor of an alcoholic beverage on the breath of defendant or on the breath of any other member of the group. Also, no member of the group was observed in the physical possession of an open container of an alcoholic beverage before the group was detained. Indeed, the members of the group were deprived of their freedom of movement by McCollister’s actions immediately on his arrival at the park. At that point in time, he told the group that they could not leave and required each member of the group to sit on the ground. Under the circumstances, we conclude that McCollister did not articulate any circumstances that furnished a reasonable suspicion that defendant was in actual possession of an open container of an alcoholic beverage.

Next, we turn to the issue of constructive possession. Again, our review of the record indicates that McCollister did not testify to any circumstances from which it can be reasonably inferred that any member of the group, much less defendant, exercised dominion or control over the containers so as to constitute constructive possession of them. The group was merely in the vicinity of the containers in a public area next to a parking lot where the containers could have been placed by any member of the public. In other words, there is no evidence that the containers were in a secluded location, circumstances that could give rise to an inference that they were brought to that location in order to be consumed without scrutiny. Finally, there is no evidence as to whether the beer containers observed by the officer were empty or full, or whether they appeared to be brand new or old, facts from which it might be inferred how long the containers had been lying next to the tree.

In State v. Hall, 339 Or 7, 115 P3d 908 (2005), the court held that an otherwise voluntary consent to a police officer’s request to conduct a search of a person is vitiated when the officer trades on a prior illegality such as unconstitutional restraint of the person’s freedom of movement in order to obtain the consent. That principle directs us to the result in this case. In the absence of an objectively reasonable suspicion that defendant had actual or constructive possession of an open container of alcoholic beverage, the officer lacked authority under Article I, section 9, to require him to sit on the ground. That illegal exercise of authority by the officer over defendant resulted in defendant’s consent to search without any other intervening event. It follows that the trial court erred by denying defendant’s motion to suppress the evidence seized from his pocket.

The dissent disagrees; in its view, the above analysis creates “an overly restrictive threshold for reasonable suspicion in this case.” 229 Or App at 727 (Norby, J. pro tempore, dissenting). Significantly, the dissent does not point to any circumstances other than those recited above. In the dissent’s view, “the historical facts establish that the 18-year-old defendant was socializing with four or five friends on St. Patrick’s Day near midnight in a public park in Portland. There were several beer bottles and beer cans on the ground near them.” 229 Or App at 728 (Norby, J. pro tempore, dissenting). But there is nothing criminally suspicious, insofar as PCC 14A.50.010(B) is concerned, about four or five young people socializing near midnight in a public place. Otherwise, police could constitutionally detain young people because of their mere association with each other. Moreover, whether individualized suspicion of unlawful activity arises from the activity of a group depends on the circumstances themselves, which will be different in every case. See, e.g., State v. Zumbrum, 221 Or App 362, 369, 189 P3d 1235 (2008) (“The mere fact that a person associates with another person involved with methamphetamine does not support a reasonable suspicion that that person is also involved with methamphetamine.”); State v. Walker, 181 Or App 548, 47 P3d 65 (2002) (officers reasonably suspected that the defendant was committing a criminal offense when they observed him walking with two other young people, one of whom was holding a bottle that looked like a beer bottle); State v. Manss, 99 Or App 498, 783 P2d 24 (1989) (there was no reasonable suspicion to detain the defendant under ORS 131.615 where another person had attempted to sell drugs to three teenagers). In this case, however, we need not decide whether there was individualized suspicion to detain defendant based on the illegal activity of a group of individuals, because there was no objectively reasonable suspicion that the group itself was involved in any illegal activity.

Reversed and remanded.

1

There is no evidence in the record from which it can be inferred that defendant was one of the drivers who had parked in the parking lot after the park had closed. Consequently, we disagree with the state’s alternative argument that McCollister had probable cause to detain defendant for purposes of citing him for illegal parking.

2

There is no indication in the record that defendant was among the persons who were present at the shooting.