State v. Backstrand

• Decision Date: 04 November 2009
• Docket Number: C071116CR,A136163.
• Citation: 231 Or. App. 621,220 P.3d 748
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Steven Nicholas BACKSTRAND, Defendant-Appellant.

220 P.3d 748

231 Or. App. 621

STATE of Oregon, Plaintiff-Respondent, v. Steven Nicholas BACKSTRAND, Defendant-Appellant.

C071116CR, A136163.

Court of Appeals of Oregon.

Argued and Submitted January 29, 2009.

Decided November 4, 2009.

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Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Linda Wicks, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ROSENBLUM, Judge, and DEITS, Senior Judge.

ROSENBLUM, J.

Following a trial to the court, defendant was convicted of misdemeanor driving while revoked. ORS 811.182. He makes two assignments of error on appeal. In the first, he assigns error to the trial court's denial of his motion to suppress evidence of his identity and the fact that his driver's license had been revoked, arguing that the arresting officer learned that information as a result of illegally stopping defendant without reasonable suspicion. In his second assignment of error, which defendant concedes is unpreserved, he argues that the charging instrument did not allege facts sufficient to establish the crime of misdemeanor driving while revoked. We reject defendant's second assignment of error without discussion. With respect to the first assignment of error, we conclude that the trial court erred in ruling that a reasonable person in defendant's circumstances would not have believed that he or she had been stopped. Because the court did not address whether defendant subjectively believed that his liberty had been restrained, we remand for further proceedings.

Because defendant was convicted, we view the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Deputy Gerba of the Washington County Sheriff's Department was in his patrol car, observing an adult bookstore that had been the victim of three recent armed robberies. He went inside the store to conduct a security check. While in the store, he saw defendant and his girlfriend. Both of them looked young to Gerba, so he asked them how old they were. Gerba did not suspect them of any wrongdoing, but he was concerned that the store owner could have been violating ORS 167.065, which prohibits furnishing obscene materials to minors. Defendant told Gerba that he was 22. Gerba asked him if he had any identification. Both defendant and his girlfriend produced their identification. Gerba took the cards and called dispatch with the identification numbers on them. Gerba testified that he called dispatch with the information in order to ensure that the identification cards were genuine. He explained, "When somebody has a fake ID, if we run it, it comes back unable to locate." After calling the information to dispatch, he returned the cards, said, "Have a good day," and left the store. He had retained the identification cards for a total of 10 to 15 seconds.

As he was leaving, dispatch called back and informed Gerba that defendant's driver's license had been suspended. Gerba thought nothing of that fact at the time. He went back to his patrol car and continued to observe the store in connection with its security issues. A few minutes later, he saw defendant and his girlfriend leave the store and drive away. Defendant was driving. Gerba pulled them over and arrested defendant for driving while suspended.

Although dispatch told Gerba that defendant's license had been suspended, it had actually been revoked, so defendant was charged with driving while revoked. Before trial, defendant filed a motion to suppress all evidence that was the product of his encounter with Gerba in the store. He argued that, by calling his identification information in to dispatch in his presence, Gerba had stopped him. Defendant argued that his case was analogous to State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), in which the Supreme Court held that the defendant was stopped when a police officer asked for his identification and then requested a warrant check in his presence. Because Gerba lacked reasonable suspicion that defendant was involved in any criminal activity, defendant contended that the stop was unlawful.

The trial court denied the motion to suppress. It stated, "I accept the deputy's testimony that he wasn't investigating this defendant for any wrongdoing. He was investigating whether the store was violating the statute prohibiting furnishing obscene materials to minors. So actually, he was investigating whether this gentleman, the defendant, was a victim of a crime." In the court's view, a crime victim "would think they would do some sort of investigation to see if you were a victim * * *." The court stated that, in an analogous case in which the person was suspected of a crime, it would "probably say it's an invalid stop," but, because the encounter was a "minimal intervention to see if defendant was a victim," the analysis in Hall did not apply. It therefore concluded that Gerba had not stopped defendant, and it denied the motion.

Defendant waived the right to a jury trial, and he agreed that the court could consider, for trial purposes, the evidence presented in the suppression hearing. In addition to that evidence, the state offered, and the court admitted, certified records from Driver and Motor Vehicle Services showing that defendant's license had indeed been revoked. The court then convicted defendant.

On appeal, defendant renews his contention that Gerba stopped him without reasonable suspicion and learned his identity and that his license had been revoked only as a result of the stop. In response, the state first argues that defendant's interaction with Gerba did not amount to a stop. The state notes that, unlike in cases such as Hall, in which the police ran a warrant check in the defendant's presence, here, Gerba "merely called in the ID number to check if it was valid—not to determine if defendant was a wanted criminal—and promptly gave defendant back his ID" and ended the encounter. In the state's view, Gerba did not intentionally and significantly interfere with defendant's liberty of movement, and a reasonable person would not have believed that he had. The state goes on to argue that, even if defendant was stopped, the evidence that he seeks to suppress was not a product of the stop. In support of that argument, the state contends that (1) defendant failed to show a "minimal factual nexus" between the stop and the evidence that he seeks to suppress; (2) the evidence was available from an independent source; and (3) the connection between the stop and the evidence is so attenuated that the stop cannot properly be viewed as the source of the evidence.

The first question before us is whether Gerba stopped defendant. To be lawful, a stop must be justified by reasonable suspicion of criminal activity. State v. Toevs, 327 Or. 525, 534, 964 P.2d 1007 (1998). It is undisputed that Gerba did not suspect that defendant was involved in criminal activity. Thus, if Gerba stopped defendant, the stop constituted an unlawful seizure. For purposes of Article I, section 9, of the Oregon Constitution, a stop occurs "(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances." State v. Holmes, 311 Or. 400, 409-10, 813 P.2d 28 (1991). Police conduct interfering with a person's liberty of movement may take the form of either physical force or a show of authority. State v. Juarez-Godinez, 326 Or. 1, 6, 942 P.2d 772 (1997). A show of authority effects a stop if it leads the person to subjectively believe that he or she is not free to leave and that belief is objectively reasonable. State v. Ruiz, 196 Or.App. 324, 327, 101 P.3d 824 (2004), rev. den., 338 Or. 363, 109 P.3d 797 (2005). Determining whether a stop has occurred requires a "fact-specific inquiry into the totality of the circumstances of the particular case." Holmes, 311 Or. at 408, 813 P.2d 28.

As noted, the trial court concluded that a reasonable person would not view a brief detention to determine whether he or she is a crime victim as a significant intrusion on his or her liberty. Under the circumstances here, however, a reasonable person would not necessarily have believed that he or she was regarded solely as a potential victim. That is, even if a reasonable person would have understood that Gerba's initial concern was that the store owner may have been furnishing obscene materials to minors, such a person could have believed that Gerba was also investigating whether defendant and his girlfriend had given him false identification or whether there were any outstanding warrants for their arrest. There would seem to be no reason for Gerba to call dispatch with the ID numbers other than to determine the authenticity of the cards or to conduct a warrant check. Although Gerba's subsequent actions demonstrated that he was not going to require defendant and his girlfriend to wait for the results of that inquiry to dispatch, until he told them "Have a nice day" and walked away, a reasonable person in the same circumstances could have believed that he or she was not free to leave. Thus, although the encounter was brief, a reasonable person could have viewed it as a stop.

The question remains whether defendant subjectively believed that he was not free to leave. The trial court did not make a finding on that issue. It follows that we must remand for such a determination.¹

The state argues that we need not remand, contending that, even if Gerba stopped defendant, the evidence that defendant seeks to...