State v. Gilkey

• Decision Date: 24 February 2022
• Docket Number: A172264
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jonathan Davis GILKEY, Defendant-Appellant.
• Court: Oregon Court of Appeals

317 Or.App. 752

505 P.3d 1029

STATE of Oregon, Plaintiff-Respondent,

v.Jonathan Davis GILKEY, Defendant-Appellant.

A172264

Court of Appeals of Oregon.

Argued and submitted May 3, 2021.

February 24, 2022

Eric Johansen, 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.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

JAMES, P. J.

Defendant appeals from a judgment of conviction for one count of felon in possession of a firearm, ORS 166.270(1), and unlawful possession of heroin, ORS 475.854(2)(b). A deputy sheriff stopped defendant for a traffic violation and developed reasonable suspicion that defendant had stolen the vehicle he was driving. During the encounter, the deputy observed tattoos on defendant that he thought might be indicative of defendant having been in prison. Based on those tattoos, the deputy delayed his investigation and instead asked defendant questions about his incarceration history, as an indirect means to assess the risk that he might be armed. The deputy never asked defendant directly whether he had any weapons. Based on the totality of circumstances, which included defendant's acknowledgment that he had been incarcerated, the deputy ordered defendant to submit to a patdown. He found a weapon and controlled substances as a result.

Defendant moved to suppress the evidence. He argues that the deputy unlawfully extended the encounter by questioning him about his incarceration history, which was unrelated to the stolen vehicle investigation. In response, the state argues, in accord with the trial court's reasoning, that the question about incarceration was justified under the officer-safety exception to the warrant requirement. The state does not dispute that the question extended the stop, in a constitutional sense. And because, as previously noted, the deputy never directly asked defendant whether he had any weapons, we are not called upon to determine whether the deputy could have made a direct weapons inquiry. Instead, as framed by the parties, the only issue before us is whether asking defendant about his incarceration history was justified under the officer-safety exception.

So framed, this case presents a nuance on the weapons inquiry issue in State v. Miller , 363 Or. 374, 388-89, 422 P.3d 240, adh'd to as modified on recons. , 363 Or. 742, 428 P.3d 899 (2018) (internal citations omitted). There, the Oregon Supreme Court held that

"[t]he issue we resolve is whether the officer's single question about a firearm unlawfully extended the stop. Unlike conducting a search for weapons during a lawful stop, which must be justified by reasonable suspicion that the citizen ‘might pose an immediate threat of serious physical injury’ and must be based on factors particular to the detained person, asking a question that is reasonably related to and reasonably necessary to effectuate a lawful investigative stop requires no independent constitutional basis and no circumstances particular to the detained person. *** On this record, we accept the trial court's implicit finding that the officer subjectively perceived a danger from the circumstances attendant to a roadside DUII investigation and decided that an inquiry about weapons was necessary to address that danger. We also conclude that the officer's question was reasonably related to and reasonably necessary to effectuate his DUII investigation because we conclude that he ‘perceived a circumstance-specific danger’ that necessitated the question about weapons and that his ‘perception and decision [to ask about weapons] were objectively reasonable.’ "

(Emphases in original.)

In this case, as we will discuss, there is no dispute that the officer had a reasonable perceived safety concern. The issue is whether his question—which was not the weapons inquiry of Miller , but something more tangential—was "reasonably related" to that perceived safety concern. On this record, we conclude that it was not. Under the totality of the circumstances, the officer did not have an objectively reasonable basis as required by Article I, section 9, of the Oregon Constitution to ask defendant questions about his incarceration history. Because that is the only issue before us—the state does not dispute that the stop was extended if that is the case—we reverse and remand.

We review a trial court's denial of a motion to suppress for legal error, and we are bound by the trial court's findings of historical fact as long as there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). To the extent that the trial court failed to make express findings on pertinent historical facts, we will presume that the court found those facts in a manner consistent with its ultimate conclusion. State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017).

The following facts are taken from the Deputy Farmer's testimony that the trial court found credible at the hearing on defendant's motion to suppress. On December 22, 2018, Farmer was on routine patrol in a residential area during the daytime hours and noticed an older model vehicle driven by defendant. He described the vehicle as having "very prominent damage" to the passenger side and damage to the front windshield. Farmer had previously come across stolen vehicles in the area, and it was his practice to check the license plates of older sedans against a DMV database to determine if they matched the vehicle. The results indicated that the plates on defendant's vehicle were for a different make of car. Farmer followed defendant's vehicle to an area where multiple stolen vehicles had been recovered, and he observed defendant attempt to make a "rapid U-turn" in a cul-de-sac. At that point, Farmer initiated a traffic stop for the incorrect plates, which is a violation under ORS 803.550(3)(a).

Farmer testified that the incorrect plates and the circumstances of the stop led him to develop reasonable suspicion that the vehicle was stolen; defendant does not contend on appeal that Farmer lacked reasonable suspicion. To determine whether or not the vehicle was stolen, the deputy needed to ascertain the vehicle's identification number or "VIN." When Farmer spoke to defendant, he responded that he had no proof of insurance or registration because the car belonged to his friend. Defendant identified himself with an out-of-state identification card. Farmer recognized this as a common response from suspects in previous stolen vehicle investigations. Furthermore, Farmer observed that defendant had "prominent tattooing" on his body. Based on Farmer's experience, he interpreted this as "potentially prison tattooing" and inquired about defendant's incarceration history. Defendant responded that he had been incarcerated.

"[DEPUTY FARMER:] So I'm speaking to Mr. Gilkey about this. I also noticed he had prominent tattooing, which, you know, is nothing prejudicial, but based on the appearance of the tattoos, my prior experience as a correctional officer, it looked as though it was potentially prison tattooing. And I know that incarcerated males with extensive tattooing who have been in the prison system are commonly associated with criminal gangs, which can be very violent, and a lot of those members outside of prison tend to carry weapons. So I had asked him about that, just because I noticed it and observed it.

"[PROSECUTOR:] What did you specifically say or ask him if you remember?

"[DEPUTY FARMER:] I asked him if he'd ever been incarcerated, and Mr. Gilkey told me that he had, but said he hadn't done prison time, which we later found was false.

"[PROSECUTOR:] Okay. So what do you do next?

"[DEPUTY FARMER:] So based on the totality of everything, I had requested a cover deputy, which ended up being Deputy Delatorre who arrived shortly thereafter."

Farmer did not testify that he ever asked defendant if he possessed any weapons. While the deputy waited for cover, defendant was seated in the vehicle's driver seat with his hands visible, the ignition had been turned off, and the keys handed over at Farmer's request.

When the cover deputy arrived, Farmer instructed defendant that he needed to check the car's VIN.¹ However, Farmer did not simply order defendant to exit the vehicle and stand with the cover officer while he checked the VIN; instead, as Farmer explained, based in part on the tattoos and incarceration history, he asked defendant to assume a position against the vehicle and submit to a patdown search:

"So I told Mr. Gilkey what I wanted to do to be able to facilitate [checking the VIN] was have him step out of the vehicle. I also told him, and this I didn't tell him necessarily why, but in my own mind all these justifications I just mentioned, I told him I'd like to be able to pat him down for weapons, make sure that he wasn't holding any of those."

Throughout this encounter, defendant was cooperative and acted normally. The deputies were standing on opposite sides of defendant. Defendant was asked to turn and place his hands on the car with his legs separated. Before he commenced the patdown, Farmer noticed a syringe in defendant's open pocket. The deputy asked defendant what was in his pocket, and he replied that it was "a rig." After some back and forth, defendant confirmed that it was a syringe that contained heroin. The deputy placed him under arrest for possession of a controlled substance, handcuffed him, and removed the syringe. At that point, defendant told the deputy that he would find a gun in his pocket. Defendant was Mirandized shortly thereafter and charged with possession of heroin and felon in possession of a firearm.

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