State v. Fair

• Decision Date: 27 January 2010
• Docket Number: 06FE1759AB,A136985.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Natasha Larae FAIR, nka Natasha Larae Ortega, Defendant-Appellant.
• Court: Oregon Court of Appeals

225 P.3d 848

233 Or. App. 298

STATE of Oregon, Plaintiff-Respondent, v. Natasha Larae FAIR, nka Natasha Larae Ortega, Defendant-Appellant.

06FE1759AB

A136985.

Court of Appeals of Oregon.

Submitted on July 28, 2009.

Decided January 27, 2010.

Peter Gartlan, Chief Defender, Appellate Division, and Tammy W. Sun, Deputy Public Defender, filed the brief for appellant.

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.

Before ROSENBLUM, Presiding Judge, and BREWER, Chief Judge, and RIGGS, Senior Judge.

BREWER, C.J.

Defendant appeals a judgment of conviction on one count of unlawful possession of methamphetamine. ORS 475.894. Defendant asserts that the trial court erred in denying her motion to suppress evidence. After the court denied her suppression motion, defendant entered a conditional plea of guilty, reserving her right to challenge the denial of the suppression motion. For the reasons set forth below, we reverse and remand.

In reviewing a trial court's ruling on a suppression motion, we are bound by the court's findings of historical fact if there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). Where findings are not made on all facts, and there is evidence from which those facts could be decided more than one way, we will presume that they were decided in a manner consistent with the trial court's ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). In the present case, the trial court indicated that it "adopt[ed] the testimony of the witnesses as its findings of fact" and ultimately concluded, as pertinent here, that "the police officer's initial contact with Defendant was not a stop." Accordingly, to the extent that there was conflicting evidence on any aspect of the encounter, we recite the version of facts most favorable to the state's position that no unlawful seizure occurred. As explained below, even from that vantage, we conclude that defendant had been unlawfully seized when the challenged evidence was discovered.

Lieutenant Utter and Deputy Mendoza were dispatched to defendant's residence to investigate a 9-1-1 call that had been placed from that address. The dispatcher had heard a female saying "stop it" and "get off me," and had heard a male voice yelling in the background before the connection was broken. The dispatcher had tried to call back but had received no answer.

Utter and Mendoza circled the house on foot. Mendoza looked through a sliding glass door in the back and observed an angry-looking man. Mendoza yelled for the man to come to the door and to keep his hands visible, but the man did not respond. Utter and Mendoza then returned to the front of the property and knocked on the front door. Utter testified at the suppression hearing that, if there had been no response to their knocking on the door, the officers were prepared to force entry "to make sure that people were okay in the house." Defendant and her husband (whom Mendoza identified as the angry man) answered the door. Utter observed that defendant had a swelling over her right eye. Mendoza ordered both defendant and her husband to come outside, and they complied. Mendoza handcuffed defendant's husband and took him to the other end of the front porch, approximately 20 feet away.

Utter instructed defendant to stay where she was, on the porch near the door to the home, and then began questioning defendant about the 9-1-1 call. At first, she denied making the call, and then she stated that she had made the call accidentally. She acknowledged that she and her husband had been arguing. Utter asked for defendant's identification and, when she stated that she did not have it with her, he asked for her name and date of birth. Using his hand-held radio, Utter requested a warrant check on defendant. When the dispatcher reported no warrants and no driving record, Utter requested defendant's maiden name and had the dispatcher run a check under that name as well, again resulting in no warrants and no driving record. Utter then asked if defendant had ever had a driver's license, and she responded that she had not. At that point, Utter asked defendant if she had ever been arrested. When she replied that she had, he asked what she had been arrested for, and defendant responded that she had been arrested for possession of drugs.

Utter resumed questioning defendant about the situation with her husband, asking her about the mark above her eye. Defendant told him that the mark had accidentally been inflicted while she was moving furniture. At that point, Utter observed an orange plastic syringe cap fall out of defendant's pants leg onto the floor of the porch. After inquiring whether anyone in the household was insulin-dependent and receiving a negative response, Utter asked defendant if anyone in the house was an intravenous drug user. Defendant did not respond, and Utter then asked her when she had last used drugs. Defendant asked why Utter was inquiring, and Utter told her he had noticed the syringe cap. At that point, defendant asked Utter not to tell her husband about it. On further questioning, defendant acknowledged that she had injected methamphetamine several weeks earlier. Utter sought and received consent to search defendant's person, at which point he found a broken glass pipe with drug residue. Utter then placed defendant under arrest.

Utter testified at the suppression hearing that, when defendant was ordered from the house and told to remain where she was, he was investigating a possible domestic assault by defendant's husband against defendant. Utter testified that he did not suspect defendant of any crime and acknowledged that, after his initial contact with defendant, had defendant "told me that she was not going to talk to me any further and that she was not going to provide me with any information, barring any additional evidence that I could utilize to verify that in fact she had been the victim of a crime, I would not have been able to stop her from walking in the house and closing the door on me essentially."

Utter did not, however, indicate to defendant that she was free to leave. Utter further testified that nothing in the encounter with defendant raised any safety concerns.

The trial court denied defendant's motion to suppress, stating the following legal conclusions:

"The police officer's initial contact with Defendant was not a stop. After the officer observed an orange cap from a syringe fall from Defendant's pant leg, the officer had reasonable suspicion to believe Defendant was in possession of controlled substances or drug paraphernalia. The officer asked Defendant for consent to search her for drugs. Defendant verbally consented without placing restrictions on the scope of search."

On appeal, defendant argues that the trial court erred in denying her motion to suppress.

In State v. Holmes, 311 Or. 400, 409-10, 813 P.2d 28 (1991), the court stated that, for purposes of Article I, section 9, a seizure of a person 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."

In particular, defendant posits that she was seized when the officer instructed her to come out of the house onto the porch and remain where she was, or alternatively, that she was seized when Utter ran a warrant check on defendant and began questioning her about her criminal history. As explained below, we agree with defendant that she was seized when she was ordered to come out of the house and remain on the porch.

The state responds that the trial court correctly concluded that defendant was not seized before Utter saw the syringe cap. Relying on ORS 131.615(5) (an officer "making a stop may use the degree of force reasonably necessary to make the stop and ensure the safety of the peace officer, the person stopped or other persons who are present"), the state argues that the detention of defendant's husband was justified, and it therefore follows that it was "reasonably necessary" for Utter to order defendant to remain where she was so that her husband could be safely taken into custody. The state contends:

"Common sense alone dictates that a police officer would be authorized to physically separate a suspect from an associate before handcuffing the suspect, in order to minimize any of the following possibilities: (1) the suspect would assault either the officer or his/her associate; (2) the suspect would encourage the associate to assist resisting his/her arrest; (3) the associate would assault either the suspect or the officer; (4) the suspect would resist arrest and either the officer or the suspect's associate would be injured as a result of the suspect's actions, etc."

The state relies on this court's decisions in State v. Hitchcock, 224 Or.App. 77, 197 P.3d 33 (2008), and State v. Barnett, 132 Or.App. 520, 888 P.2d 1064, rev. den., 321 Or. 137, 894 P.2d 468 (1995), in support of that thesis. However, "common sense alone" is not the legal test to be applied in this situation. In Hitchcock, the defendants were present in a house when officers received consent from a homeowner to enter the house to arrest a wanted individual. While making a protective sweep of the home, an officer handcuffed one of the defendants, Hitchcock. We stated that "[w]e assume that the initial detention of [the defendants] was justified for officer safety reasons." 224 Or.App. at 85, 197 P.3d 33 (emphasis added). But we noted specifically that we were not called on to address the question whether the initial protective sweep and the detention were "justified on the basis of officer safety." Id. at 83 n. 2 ...