State v. Hall
Decision Date | 31 July 2002 |
Citation | 50 P.3d 1258,183 Or. App. 48 |
Parties | STATE of Oregon, Respondent, v. David Clyde HALL, Appellant. |
Court | Oregon Court of Appeals |
Louis R. Miles, Deputy Public Defender, argued the cause for appellant. With him on the brief was David E. Groom, Public Defender.
Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER and BREWER, Judges.
Resubmitted En Banc June 11, 2002.
Defendant appeals from a conviction for possession of a controlled substance. ORS 475.992(4)(b). He assigns as error the trial court's denial of his motion to suppress evidence that was seized from his pocket during an allegedly unlawful stop. He also assigns as error the denial of his motion to dismiss for lack of a speedy trial. We are not persuaded by defendant's argument that the case should be dismissed for lack of a speedy trial under ORS 135.747. Suffice it to say that defendant himself contributed to much of the delay. See State v. Jenkins, 29 Or. App. 751, 756, 565 P.2d 758 (1977)
(). However, we reverse on the basis of defendant's first assignment of error.
In regard to the seizure of evidence from defendant's person, the trial court made, in substance, the following findings. Defendant was walking along Washington Street near 10th Street in Klamath Falls toward the location where he had stored his backpack. Officer Deese, in a marked patrol car, drove past defendant, going in the opposite direction. Deese did not recognize defendant, nor did he see anything about defendant's conduct that would justify a reasonable suspicion of criminal activity. Deese noticed that defendant looked at him and then looked away. He also saw in his rear-view mirror that defendant turned to look at the police car about four more times after the patrol car passed him. Deese turned his vehicle around and drove back to where defendant was walking. He stopped his car near defendant and signaled with two fingers of his hand for defendant to come toward him.1 Defendant stopped walking and turned toward Deese. Deese got out of his car, said "Excuse me," and asked defendant if he had any identification. Defendant gave Deese an Oregon identification card. Deese radioed the information from the card to a dispatcher, using a shoulder radio, and then returned the card to defendant.2 The record check on defendant's identification card provided no basis for a restraint of defendant's liberty. While waiting for the record check, Deese noticed that defendant was wearing a jacket that "looked like it had items inside of it." Deese asked defendant if he had any knives, weapons, or drugs, and defendant said, "No." Deese then asked, "Would you mind if I checked?" Defendant said, "Okay." Deese then did a quick patdown and found no weapons. He did, however, find a small glass vial, which later proved to contain traces of amphetamine.3 The evidence obtained from the search of defendant's pocket led to defendant's conviction that is before us now on appeal.
Before trial, defendant moved to suppress the evidence of the vial and its contents.4 In his motion, he argued that Deese's gesture when he "signaled with two fingers of his hand for the defendant to come in his direction" was "an unlawful stop because there was no reasonable suspicion to justify it" and that the seizure and subsequent search of the glass vial "constituted exploitation of the unlawful stop." The state responded:
The trial court concluded that Deese's contact with defendant did not restrain defendant's liberty and that there were therefore no grounds for suppression of the evidence. It denied the motion to suppress, and defendant was ultimately convicted.
Thus, ultimately, this case presents a question of Deese's authority: whether he was lawfully authorized to act in the manner described above by some statute and whether his authority to do so, if any, is circumscribed by the state and federal constitutions.
We inquire initially whether Deese's actions were authorized by any statute. State v. Amaya, 176 Or.App. 35, 29 P.3d 1177 (2001), rev. allowed 330 Or. 288, 49 P.3d 797 (2002) ( ). We are not aware of any statute that would authorize Deese's conduct, and the parties have not cited one to us. ORS 131.615 requires an officer to have reasonable suspicion before making a stop. ORS 810.410, which authorizes a stop of a pedestrian for pedestrian traffic violations, also requires reasonable suspicion that the pedestrian has committed a traffic infraction. Here, Deese had no reasonable suspicion of any criminal misconduct or traffic violations.
We turn to the state constitutional issue: whether Deese's actions violated Article I, section 9, of the Oregon Constitution. Stated another way, did Deese's conduct constitute a permissible citizen encounter or an unlawful seizure of defendant's person? In State v. Holmes, 311 Or. 400, 410, 813 P.2d 28 (1991), the Supreme Court explained the difference between a citizen encounter with a police officer and an unlawful seizure:
We applied the same rule in substance in State v. Johnson, 105 Or.App. 587, 590, 805 P.2d 747 (1991), where we held that "[w]hat starts out as a police-citizen encounter may be converted into a stop by a show of authority." In Johnson, officers were present in an apartment complex because of a report of a fight in the parking lot. While in the lot, one officer encountered the defendant and asked him, in what we treated as a citizen encounter, whether he knew anything about the fight. The defendant answered in the negative, and nothing about his answer created a contrary suspicion. Notwithstanding that fact, the officer asked the defendant to come out from behind a bush and walk toward him. We held that, because the officer had already concluded his inquiry of the defendant about the fight that he was investigating, his subsequent exercise of authority over the defendant converted the citizen encounter into an unlawful stop. We focused on the totality of the...
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State Of Or. v. Hall, SC S49825
...officer had stopped defendant unlawfully and then had "exploited" that unlawful stop to obtain defendant's consent. State v. Hall, 183 Or. App. 48, 50 P.3d 1258 (2002). We allowed the state's petition for review. For the reasons that follow, we affirm the decision of the Court of Appeals an......
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State v. Hall, (CC 9701546CR; CA A109813; SC S49825).
...officer had stopped defendant unlawfully and then had "exploited" that unlawful stop to obtain defendant's consent. State v. Hall, 183 Or App. 48, 50 P.3d 1258 (2002). We allowed the state's petition for review. For the reasons that follow, we affirm the decision of the Court of Appeals and......
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State v. Harper
...suspicion that [he] had committed a crime." Id. Where the officer took the card after retaining it was not pertinent. In State v. Hall, 183 Or.App. 48, 55, 50 P.3d 1258 (2002), rev. allowed, 335 Or. 195, 64 P.3d 576 (2003), we held that a stop had occurred when an officer requested the defe......
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State v. Ashbaugh, C052367CR.
...of criminal activity. In fact, this court's treatment of that issue was entirely consistent with the Supreme Court's analysis. Compare 183 Or.App. 48, 62, 50 P.3d 1258 (2002) with 339 Or. at 16-19, 115 P.3d 908. Nor have this court's unlawful stop cases decided before Hall necessarily becom......