State v. Cline

• Decision Date: 16 July 2014
• Docket Number: A150318.,11CR0891
• Citation: 264 Or.App. 293,330 P.3d 1255
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Gary Dean CLINE, Defendant–Appellant.
• Court: Oregon Court of Appeals

264 Or.App. 293

330 P.3d 1255

STATE of Oregon, Plaintiff–Respondent,

v.Gary Dean CLINE, Defendant–Appellant.

11CR0891; A150318.

Court of Appeals of Oregon.

Argued and submitted Dec. 19, 2013.

Decided July 16, 2014.

Alice Newlin–Cushing, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

EGAN, J.

Defendant appeals a judgment of conviction for one count of unlawful possession of marijuana, ORS 475.864. He assigns error to the trial court's denial of his motion to suppress evidence that was obtained during his encounter with a North Bend police officer. He contends that he was unlawfully seized in the course of that encounter and that the evidence acquired as a result of that seizure should have been suppressed. We review the denial of that motion for errors of law, deferring to the trial court's factual findings when there is evidence in the record to support them, State v. Hampton, 247 Or.App. 147, 149, 268 P.3d 711 (2011), rev. den.,352 Or. 107, 284 P.3d 485 (2012), and affirm.

At around ten-past midnight, Officer Dunning of the North Bend Police Department drove his patrol car past defendant, who was walking down the street carrying a “sea bag.” After attending to some other business, Dunning caught up with defendant down the road. Dunning pulled up alongside defendant and rolled down his window to talk with him.¹ By defendant's reckoning, Dunning's car was two or three steps from the curb where defendant was standing. The two had spoken many times before. Dunning began by saying something like, “What are you doing tonight?” or, “How's it going tonight?” Early in the course of the conversation, defendant began to approach Dunning's cruiser. When defendant began to approach, Dunning told defendant something to the effect of, “stay where you are” or, “stay there.” ² Dunning then got out of his cruiser and came to the sidewalk to talk with defendant. In the course of what defendant described as “the initial casual talk that we always have,” defendant told Dunning that he had been out collecting cans, an activity that Dunning knew that defendant engaged in with some regularity. Dunning asked defendant what was in the sea bag. Defendant replied that it held cans and put the bag on the ground, in an apparent attempt to make noise with the cans to audibly demonstrate the bag's contents. Dunning asked to look inside the bag. Defendant replied, “ ‘Sure, why not?’ ” and partially opened it up. Dunning observed a black garbage bag inside. Dunning asked what was inside the garbage bag; defendant told him that it held more garbage bags. Dunning then asked if he could look inside the garbage bag. Defendant partially opened it, and at that point Dunning smelled marijuana and observed plant material. According to Dunning, defendant then said, “It's marijuana,” and “I'm going to jail.”

Defendant was charged with unlawful possession of marijuana, ORS 475.864. He moved before trial to suppress all evidence that was obtained as a result of the encounter with Dunning, which, he contended, amounted to an unlawful seizure of his person by Dunning in violation of Article I, section 9, of the Oregon Constitution.³ After a hearing, the trial court denied defendant's motion and made the following finding: “I draw a lot about the tenor of the conversation from the words that the Defendant used in describing it. I mean, it seems to me that the Defendant pretty much indicated that it was kind of what the police officer said—a conversation in the middle of the night with somebody you know.”

Defendant challenges the denial of that motion, contending that he was unlawfully seized by the time that Dunning detected the presence of marijuana in his bags. The state responds that defendant was not seized—and thus not seized unlawfully—at that time.

Article I, section 9, protects individuals against unreasonable searches and seizures. Under that section, a “seizure” occurs “(a) if a law enforcement officer intentionallyand significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or. 297, 316, 244 P.3d 360 (2010) (emphasis and footnote omitted). “[T]he crucial question in determining if a mere encounter has become a constitutionally significant seizure is whether, by word or deed, a law enforcement authority has manifested ‘a show of authority’ that restricts a person's ‘freedom of movement.’ ” State v. Radtke, 242 Or.App. 234, 239, 255 P.3d 543 (2011). The fact that an officer has conveyed his or her official status to a defendant is not a “show of authority”; instead,

“[w]hat is required is a reasonable perception that an officer is exercising his or her official authority to restrain. Explicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs. Necessarily, then, the fact that an individual—for reasons personal to that individual—feels obliged to cooperate with the officer simply because of the officer's status is not the form or source of coercion that is of constitutional concern.”

State v. Backstrand, 354 Or. 392, 401–02, 313 P.3d 1084 (2013). The seizure analysis under Article I, section 9, is a “fact-specific inquiry into the totality of the circumstances of the particular case.” State v. Ehly, 317 Or. 66, 78, 854 P.2d 421 (1993). A public encounter does not amount to a seizure “merely because the encounter may involve inconvenience or annoyance for the citizen.” State v. Holmes, 311 Or. 400, 410, 813 P.2d 28(1991).

Defendant's argument that he was seized consists of two primary thrusts. First, he points to the fact that Dunning told him to stay on the curb, and contends that the direction from Dunning constituted a show of authority sufficient to effectuate a seizure of his person. Second, he argues that the totality of Dunning's conduct throughout the encounter up until the point that the marijuana was discovered—including questioning him about the contents of his bags and requesting consent to inspect those bags—would lead a reasonable person in defendant's position to believe that defendant was the subject of an ongoing investigation, and, thus, that Dunning was intentionally and significantly restraining defendant's liberty or freedom of movement.

We first examine whether defendant was seized by Dunning's direction to stay on the curb. In support of his argument on that point, defendant relies on State v. Johnson, 105 Or.App. 587, 805 P.2d 747 (1991), and State v. Zaccone, 245 Or.App. 560, 261 P.3d 1287 (2011). In Johnson, three police officers arrived at the parking lot of an apartment in response to a report of a fight. The officers saw the defendant walking on a path behind a chest-high bush with his hand in his pocket. One of them told the defendant that he was investigating a fight and asked whether the defendant knew anything about it. The defendant replied that he did not. The officer told the defendant that he could not see him very well and asked him what he had in his pocket; the defendant said, “Nothing,” and put both his hands in the air. The officer then said, “I can't see you back there, can you step out [from behind the bush]”? Johnson, 105 Or.App. at 589, 805 P.2d 747 (brackets in original). The defendant changed his course and walked about 15 feet toward the officer. One of the questions on appeal was whether the officer had seized the defendant by asking him to come out from behind the bush. We concluded that he had, stating that the officer's request was a show of authority that “converted the conversation into a stop.” Id. at 591, 805 P.2d 747.

In Zaccone, the defendant was a passenger in a car that had been stopped for a traffic violation. The officer asked all the occupants for their identifications; the defendant replied that he did not have any, but, in response to the officer's additional requests, supplied a name and a date of birth. The officer believed that the information was false. A second officer arrived. The second officer approached and asked the defendant to step out of the car because it was going to be towed. The second officer then saw the defendant's wallet and asked if he might have a look at it. The defendant agreed and stated that he had initially provided a false name out of fear that he had an outstanding arrest warrant. The officers then ran a warrant check; it revealed no warrants, but did show that the defendant was on probation. The first officer told the defendant that she knew he was on probation, but that he did not have any outstanding warrants. She then asked the defendant to “ ‘please stand at the front of [the second officer's] patrol vehicle.’ ” 245 Or.App. at 564, 261 P.3d 1287. A subsequent inventory of the stopped car revealed the defendant's bags; the officers asked for and got the defendant's permission to search those bags and incriminating items were discovered. On appeal, we were called upon to determine whether the defendant had been seized under Article I, section 9, at the time that the officers asked for permission to search the defendant's bags. We concluded that he had been seized by that moment. After stating the principle that “a reasonable person would believe that an officer's actions amounted to * * * [a] show of authority ‘if the person knew that he or she was the subject of a criminal investigation,’ ” id. at 565, 261 P.3d...