State v. Davis
| Decision Date | 06 July 2017 |
| Docket Number | A156825 |
| Citation | 400 P.3d 994,286 Or.App. 528 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Steven Christopher DAVIS, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
John Evans, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.
Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.
Defendant challenges his conviction for unlawful possession of methamphetamine, ORS 475.894, assigning error to the trial court's denial of his motion to suppress. He argues that the officer unlawfully extended an otherwise lawful stop by investigating whether he possessed drugs without reasonable suspicion. Although he acknowledges that the officer had reasonable suspicion to initially stop him to investigate a reported theft, he contends that the officer's observation that defendant appeared to be under the influence of intoxicants did not provide the officer with reasonable suspicion to extend the stop while he investigated whether defendant possessed controlled substances. The state responds that, under the totality of the circumstances, the officer had reasonable suspicion that defendant possessed drugs when the officer began investigating drug possession. Ultimately, we conclude that the officer's belief that defendant possessed drugs was not objectively reasonable, and we reverse and remand.
We review a trial court's denial of a motion to suppress for legal error, and are bound by the court's express factual findings if evidence in the record supports them. State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). If the trial court has not made an express factual finding, we presume that the trial court found the facts in a manner consistent with its ultimate conclusion. Id. Consistently with that standard, we state the facts as they were recounted at the suppression hearing by the investigating officer.
On a rainy morning just before 4:00 a.m., the Tigard Police Department received a report that someone was trying to steal gas from a closed gas station in Tigard. Officer Powers was dispatched to investigate. Based on his experience, he knew that the gas station was a "known thoroughfare for drug users, drug deals" and that the gas station had "a lot of problems with people * * * [b]reaking in to the—the bathroom there * * * [a]nd either * * * sleeping in there or using drugs." The suspects were described as a male and a female in a "dark-colored pickup, possibly a Toyota, th[at] was slightly [raised] and had overhead lights." Powers arrived at the station within two minutes of the report and observed a "blue pickup, a Toyota with * * * overhead spotlights, occupied by a male and a female * * * parked under the covered kind of carport area of the gas pumps." The pickup started to drive away when Powers pulled in to the gas station. Powers activated his emergency overhead lights and stopped the vehicle.
Powers approached defendant, who was driving the pickup, and explained that he was stopping defendant because he had received a report that someone was stealing gas. Powers asked to see defendant's driver's license. Defendant, who along with his passenger, appeared "pretty nervous," provided the license and "kept telling" Powers that he Powers found defendant's statement odd because he had not asked defendant "if there was anything in his car that I should be alarmed of or if there was anything illegal in his car." Defendant's voice was "pretty excited" and he "kept fidgeting in the car."
Powers asked defendant "where he was coming from" and "where he was going." Defendant initially explained that he was traveling from his home in northeast Portland to the "beach." Powers found it "curious" that someone would be heading to the beach at 4:00 a.m. on a rainy morning. Defendant clarified that he was first headed to a casino in McMinnville, and then "we'll probably go to the beach." Defendant was vague about which "beach" he was ultimately headed to, and Powers found it "curious" that someone driving from northeast Portland did not "have an idea of at least what beach [they were] going to."
A backup officer arrived and Powers asked him to find the person who reported the suspected theft to see "what they actually saw." Defendant proceeded to start "rummaging" around the cab of his pickup, which was cluttered and raised high enough so that Powers could not see defendant's hands. Powers was concerned for his safety and asked defendant to step out of the vehicle. Once outside the vehicle, defendant kept putting his hands in his pockets and Powers repeatedly asked him to remove them from his pockets. Defendant continued to act very nervous—pacing back and forth, throwing his hands in the air, repeatedly saying Powers also noted that defendant failed to make eye contact "for very long."
Based on his experience as a police officer, Powers suspected that defendant was under the influence of intoxicants. In particular, Powers noted that defendant was making "rapid and involuntary movements just with his hands," he "couldn't sit still," "he was pacing back and forth," and he was making some "random statements" including a confusing story about where he was coming from and where he was heading. Powers asked defendant if a drug detection canine would alert "on his pickup at all." Defendant replied, "I have some weed in my pocket and that's it."
Powers asked defendant if he had an Oregon medical marijuana card, and when he replied that he did not, Powers asked defendant if marijuana was the only drug he had on his person, and defendant responded, "Yeah, you want to search me?" Powers searched defendant and found a small bag of methamphetamine and a small bag of marijuana in defendant's pocket.
After defendant was charged with unlawful possession of methamphetamine, he moved to suppress the evidence discovered during the search. At the close of testimony at the suppression hearing, defendant argued, among other things, that Powers' observations that defendant might have been under the influence of intoxicants is "not reasonable suspicion that [he] currently possess drugs." The trial court denied the motion.
On appeal, defendant concedes that he was lawfully stopped by Powers on suspicion of theft, attempted theft, and criminal mischief, but argues that Powers unlawfully extended the stop into a drug possession investigation without reasonable suspicion. Thus, according to defendant, the trial court should have suppressed the evidence found in defendant's pocket and any statements made by defendant during the unlawful extension of the stop. For its part, the state does not dispute that, when Powers asked defendant if a drug detection canine would alert "on his pickup," Powers had shifted his investigation from theft to drug possession.
The state argues that the shift in the investigation was supported by reasonable suspicion that defendant possessed drugs.
Article I, section 9, of the Oregon Constitution, requires a temporary restraint of a person's liberty for an investigatory purpose—i.e. , a "stop"—to be justified by "necessities of a safety emergency or by reasonable suspicion that the [stopped] person has been involved in criminal activity[.]" State v. Ashbaugh , 349 Or. 297, 308-09, 244 P.3d 360 (2010). When a stop is initially lawful, "it may endure only for the time it takes an officer to complete an investigation that is reasonably related to the basis for the stop." State v. Sherman , 274 Or.App. 764, 773, 362 P.3d 720 (2015). When a stop extends past that point, "it must be justified by at least reasonable suspicion of some other criminal activity."1 Id. Here, as the parties have framed the issue, the dispositive question is whether Powers had reasonable suspicion of drug possession when he asked defendant whether a drug detection canine would alert "on his pickup."2
Reasonable suspicion exists if a police officer "subjectively suspects that an individual has committed, or is about to commit, a crime, and that belief is ‘objectively reasonable under the totality of the circumstances.’ " State v. Huffman , 274 Or.App. 308, 312, 360 P.3d 707 (2015), rev. den. , 358 Or. 550, 368 P.3d 25 (2016) (quoting Ehly , 317 Or. at 79, 854 P.2d 421 ). The objective component of the test requires the officer to identify "specific and articulable facts from which he or she formed an objectively reasonable suspicion that a person has committed or is about to commit a crime." State v. Kentopp , 251 Or.App. 527, 532, 284 P.3d 564 (2012). The standard "does not require that the articulable facts observed by the officer conclusively indicate illegal activity but, rather, only that those facts support the reasonable inference that a person has committed a crime." State v. Hammonds/Deshler , 155 Or.App. 622, 627, 964 P.2d 1094 (1998) (emphases in original). "An officer cannot articulate sufficiently specific facts to satisfy Article I, section 9, if the officer cannot articulate, with at least some specificity, what type of crime that the person stopped may have committed." State v. Maciel-Figueroa , 361 Or. 163, 179, 389 P.3d 1121 (2017) (emphasis in original).
Although "[o]fficer intuition and experience alone are not sufficient to meet that objective test[,]" State v. Holdorf , 355 Or. 812, 823, 333 P.3d 982 (2014), the reasonable suspicion standard includes "a proper regard for the experience that police officers bring with them when they encounter criminal suspects." Id. at 827-28, 333 P.3d 982. That is, "a police officer's training and experience may, depending on the factual...
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