State v. Brown

• Decision Date: 06 September 2018
• Docket Number: A161849
• Citation: 427 P.3d 221,293 Or.App. 772
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Michala Ann BROWN, Defendant-Appellant.
• Court: Oregon Court of Appeals

293 Or.App. 772

427 P.3d 221

STATE of Oregon, Plaintiff-Respondent,

v.Michala Ann BROWN, Defendant-Appellant.

A161849

Court of Appeals of Oregon.

Argued and submitted January 9, 2018.

September 6, 2018

Rond Chananudech, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

AOYAGI, J.

Defendant appeals a conviction for one count of unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court's denial of her motion to suppress. Defendant asserts that evidence found during an officer's search of her car was the product of an unlawful stop. The state contends that defendant was not stopped. The state implicitly concedes that, if she was stopped, the stop was unlawful and suppression was required. We conclude that defendant was stopped and, accordingly, reverse and remand.

We review the denial of a motion to suppress for errors of law. State v. Davis , 286 Or. App. 528, 529, 400 P.3d 994 (2017). We are bound by the trial court's express and implicit factual findings so long as they are supported by the record. Id. We state the facts in accordance with our standard of review, noting that, in this case, the evidence was uncontested and consisted solely of the testimony of two law enforcement officers.¹

On an April evening, Deputy Samerdyke drove past a bar in Dayton while on patrol. He noticed defendant's car outside the bar. Defendant was in the driver's seat, and two men were in the car. Another man, whom Samerdyke recognized as a drug dealer named Marsh, was standing near the back passenger door. As Samerdyke passed, defendant's head was down and she was holding her hand up as if trying to block her face from his view. When Marsh spotted Samerdyke, Marsh walked away from defendant's car and into the bar.

Defendant's car pulled out of the bar parking lot onto the street in the direction opposite of that which Samerdyke was travelling. Samerdyke turned around his patrol car and "got in behind [defendant's] vehicle." According to Samerdyke, it was "absolutely" possible for defendant to see him turn around to follow her. Because of Marsh's contact with the vehicle, Samerdyke suspected that there would be drugs in the car. He followed defendant in the hopes that she would commit a traffic infraction so that he could stop her and conduct a drug investigation. Samerdyke was only "a few car lengths" behind defendant's car, and, as they drove, defendant's back seat passenger "kept turning around, looking at [Samerdyke], at the patrol car."

Samerdyke followed defendant's car on a road heading out of town for approximately 10 to 15 minutes, during which time defendant did not commit any traffic infractions. Eventually, defendant turned left onto a gravel road, at which point Samerdyke "lost them for a few seconds, minutes," as he passed by, turned around, and parked at the intersection to wait. After about five minutes, defendant's car came into view, driving back toward the main road. Upon coming into view of Samerdyke's patrol car, defendant turned suddenly onto a side road and disappeared. Samerdyke drove down the gravel road and tried to find the car. A jogger flagged him down and told him that it had driven onto the property of a commercial nursery.

When Samerdyke reached the nursery, he saw a long driveway (at least 100 yards) leading to a large parking lot and a very large building. The nursery was closed, and there were no people or vehicles in the area. A loop led from the parking lot around the back of the building. Samerdyke parked and called for backup because they were "kind of in a rural area and there were multiple people in the car." When Sergeant Rice arrived three minutes later, Samerdyke explained the situation, including that the vehicle's occupants were "trying to, I guess, hide back there out of sight."

Samerdyke and Rice drove their marked patrol cars around and behind the nursery building. They did not activate their lights, but they approached from opposite directions, with Samerdyke coming around the west side of the building and Rice coming around the east side. Behind the building, they found defendant and one passenger standing near the front of defendant's car; there was no sign of the second passenger. They parked their patrol cars to the side, such that they "weren't blocking anybody in," and got out and approached defendant and her passenger.

Samerdyke immediately asked defendant whether they had permission to be on the property. Defendant responded that they did not but that she was having car issues. Samerdyke observed that the car's front bumper was partially hanging down in a way that he had not noticed when he first saw the car in Dayton. Rice also saw that the bumper was "definitely broken." Neither officer knew whether the vehicle was operable; Samerdyke thought it probably was but was not sure, while Rice thought that "it looked like more than likely they wouldn't drive it." Samerdyke asked defendant and her passenger who and where the second passenger was. They both denied knowing what he was talking about. Samerdyke then asked who the person was whom he had seen leaving defendant's car at the bar. Defendant responded that it was Marsh. Asked why Marsh had left the car, defendant said that "once he saw [Samerdyke's] patrol car he told them to leave." Around then, Rice asked the passenger to come speak with him. Rice separated defendant and her passenger "as a safety precaution and [to] see what was going on."

Now alone, Samerdyke asked defendant if there was anything illegal in the car. She replied that she had just purchased the car and did not know. Recognizing defendant from a prior incident and knowing her to be a past heroin user, Samerdyke asked how she was doing in regard to drug use. Defendant told him that she had been clean for quite some time. Samerdyke asked again whether there was anything illegal in the car. Defendant said that "she didn't want to lie, she had a small amount of marijuana in the car." At that time, it was illegal to possess any amount of recreational marijuana under Oregon law. Defendant said that the marijuana was "in a small tin container kind of underneath the steering wheel." Samerdyke asked if he could retrieve the marijuana. Defendant said that was fine, put her hands in the air, and said, "[Y]ou can check whatever, Samerdyke, there's nothing in the car." Samerdyke proceeded to search defendant's car. He found the tin of marijuana in the location described by defendant. He also found a marijuana pipe in the glove box, and a pipe and a small bag of methamphetamine concealed inside containers in a black bag under a coat on the back floorboard.

The state charged defendant with one count of possession of methamphetamine, ORS 475.894. Before trial, defendant moved to suppress the methamphetamine evidence, arguing that it was the product of an unlawful stop. The court denied the motion, and defendant was subsequently convicted. She appeals, assigning error to the denial of her motion to suppress.

The issue before us on appeal is singular. The state has never argued that Samerdyke had reasonable suspicion that defendant was engaged in criminal activity when he questioned her, nor does it argue attenuation or any other such matter. The only issue is whether defendant was "stopped" by the time that she consented to the search of her car. If so, the motion to suppress should have been granted; if not, it was properly denied.

Under Article I, section 9, of the Oregon Constitution, there are two types of nonarrest encounters between police and individuals: "mere conversations" and "stops." State v. Ashbaugh , 349 Or. 297, 308-09, 244 P.3d 360 (2010). The first type, "mere conversation," is a noncoercive encounter that does not implicate Article I, section 9, concerns. Id. at 308, 244 P.3d 360. The second type, a "stop," is a temporary restraint of liberty that, although a seizure, can be justified by reasonable suspicion of criminal activity. Id. at 308-09, 244 P.3d 360. What distinguishes mere conversation from a seizure "is the imposition, either by physical force or through some ‘show of authority,’ of some restraint on the individual's liberty." Id . at 309, 244 P.3d 360 (citation omitted).

Our courts have long recognized that law enforcement officers are "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." State v. Holmes , 311 Or. 400, 410, 813 P.2d 28 (1991), abrogated in part on other grounds by Ashbaugh , 349 Or. 297, 244 P.3d 360. "That is true even though the person approached may be discomforted by an officer's inherent authority as such and, for reasons personal to the individual, feel inclined or obliged to cooperate with the officer's request."

State v. Anderson , 354 Or. 440, 450, 313 P.3d 1113 (2013). For an encounter to become a seizure, "the officer must add to those inherent pressures by either physically restraining the citizen's liberty in a significant way or engaging in a ‘show of authority’ that, explicitly or implicitly, reasonably conveys to the person a significant restriction on the person's freedom to terminate the encounter or otherwise go about his or her ordinary affairs." Id.

The test for a "stop" is an objective one. A person is seized under Article I, section 9, of the Oregon Constitution"(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that...