State v. Hames

• Decision Date: 12 November 2008
• Docket Number: 06C47677.,A133950.
• Citation: 223 Or. App. 624,196 P.3d 88
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Joshua Nathan HAMES, Defendant-Respondent.
• Court: Oregon Court of Appeals

196 P.3d 88

223 Or. App. 624

STATE of Oregon, Plaintiff-Appellant, v. Joshua Nathan HAMES, Defendant-Respondent.

06C47677.

A133950.

Court of Appeals of Oregon.

Argued and Submitted June 27, 2008.

Decided November 12, 2008.

Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals Unit, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Bronson D. James, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

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

BREWER, C.J.

In this prosecution for various drug offenses, the state appeals a trial court order suppressing evidence obtained as the result of a motor vehicle stop. ORS 138.060(1)(c). The state asserts that the trial court erred in concluding that the officer who performed the stop lacked reasonable suspicion to believe that defendant had committed a crime. ORS 131.615(1). We review for errors of law, ORS 138.220, and affirm.

The pertinent facts are not in dispute. At 10:30 p.m. on October 22, 2005, Officer Johnston was dispatched to respond to a report of suspicious activity in a park. The report came from a citizen informant who provided his name, address, and telephone number to the police dispatcher. The dispatcher provided Johnston with notes summarizing the informant's report via the officer's in-car computer. Those notes indicated that

"[t]he operator, the call-taker, says that the [informant] advised there were four or five subjects tearing up a car.

"They arrived in one black Honda Civic and a white Chevy Corsica or Lumina.

"They also reported that it sounded like they were ripping stuff off the car and going from the front of the car to the back of the car and all had flashlights.

"It was hard to get a description because it was too far away."

Johnston arrived at the park minutes after receiving the report. He got out of his patrol car and, while walking toward the park, saw two cars next to one another in the parking lot: a white Chevrolet Lumina and a gold-colored car. Johnston observed two people inside the white Lumina, but he could not see how many people were inside the gold-colored car. When both cars started up and began to leave, Johnston returned to his car and signaled both vehicles to stop by activating his overhead lights. Johnston testified that he stopped the vehicles because one of them matched the description he had received from the dispatcher, and he suspected that they had been involved in a crime. Johnston testified that he relied on the information in the informant's report in making his decision to stop the cars. Defendant was one of two occupants of the Lumina. Johnston found drug-related evidence inside the Lumina, and he arrested defendant for several drug offenses.

Before trial, defendant moved to suppress the drug-related evidence found as a result of the stop. Defendant argued that Johnston's own observations did not sufficiently corroborate the informant's report and that, as a result, the officer lacked reasonable suspicion to believe that defendant had committed a crime. In granting defendant's motion to suppress, the trial court reasoned:

"It's undisputed that there was a stop. The critical issue is at the moment that officer decides to activate his lights does he have reasonable suspicion that the people that he's stopping have been involved in criminal activity.

"He's got—I don't doubt the reliability of the report that he received or the fact that it's from a named person, but he's got a report that says there's a Black Honda Civic, there's a white Chevy Lumina, and people are walking around outside them basically tearing one of the cars apart. He arrives on the scene, he sees two cars, one of which matches that description and one of which apparently doesn't. He doesn't see a Black Honda Civic, he doesn't see any vehicle that looks like it's had parts ripped off, and he doesn't see anybody walking around looking like they're ripping parts off vehicles. He sees two cars stopped and in conversation.

"Certainly an appropriate basis for him to stroll over and talk to them, or do something like that. But, you know, I don't think it rises to reasonable suspicion or justify a stop. So I'll grant the motion to suppress.

"* * * * *

"* * * [W]hat you have in the totality of the circumstances is one of the vehicles doesn't match, and the activity doesn't match what's described by the [informant]. There are not people walking around the vehicles with flashlights, there are not people ripping vehicles apart, and, moreover, there's not vehicles sitting there that look like somebody's been doing that to them recently.

"You know, you might have somebody's ripping stuff off the car and then suddenly they get back into their cars, but you don't have any observation by the officer of anything that even looks like somebody's been destructive to the car.

"And I guess the one other factor that's important to me that I'll point out is that the officer parks a distance away and walks over and observes this. So I didn't hear any testimony that this is a situation where people realize the police are coming, or see the police officer there, and rapidly, you know, stash something away. The officer's testimony is he parks a distance away and walks over to look, and still does not see the criminal activity that was being reported, or evidence of it."

The state assigns error to the trial court's ruling. The state contends that, under the totality of the circumstances, Johnston had reasonable suspicion to stop defendant's vehicle. Because there is constitutionally sufficient evidence in the record to support them, we are bound by the trial court's findings of historical fact on this issue. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). Consequently, our review is limited to whether the trial court correctly concluded that the officer's suspicion was not objectively reasonable. State v. Belt, 325 Or. 6, 11, 932 P.2d 1177 (1997).

A peace officer may stop and temporarily detain a person in order to make a reasonable inquiry of that person if the officer "reasonably suspects" that the person has committed a crime. ORS 131.615(1). "`Reasonably suspects' means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts as authorized in ORS 131.605 to 131.625." ORS 131.605(5). Reasonable suspicion is a less demanding standard than probable cause, State v. Hammonds/Deshler, 155 Or.App. 622, 627, 964 P.2d 1094 (1998), and an officer need only form a belief that is objectively reasonable under the totality of the circumstances that an individual has committed a crime, drawing reasonable inferences from the circumstances based on the officer's experience. State v. Loud, 149 Or.App. 250, 255, 942 P.2d 814, rev. den., 326 Or. 58, 944 P.2d 948 (1997).

Where, as here, the officer's suspicion is based solely on a citizen informant's report, that report must contain some indicia of reliability. State v. Shumway, 124 Or. App 131, 133, 861 P.2d 384 (1993), rev. den., 318 Or. 459, 871 P.2d 122 (1994). In State v. Black, 80 Or.App. 12, 19, 721 P.2d 842 (1986), we identified three factors that are important in determining the reliability of a citizen informant's report. The first is whether the informant is exposed to possible criminal and civil prosecution if the report is false. That factor is satisfied if the informant gives his or her name to law enforcement authorities or if the informant delivers the information to the officer in person. State v. Bybee, 131 Or.App. 492, 495, 884 P.2d 906 (1994). The second factor is whether the report is based on the personal observations of the informant. An officer may infer that the information is based on the informant's personal observations if the information contains sufficient detail that "[i]t is then apparent that the informant had not been fabricating [the] report out of whole cloth * * * [and] the report [is] of the sort which in common experience may be recognized as having been obtained in a reliable way * * *." Spinelli v. United States, 393 U.S. 410, 417-18, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); see Shumway, 124 Or.App. at 136, 861 P.2d 384 (inferring personal knowledge from level of detail in an informant's account). The final factor is whether the officer's own observations corroborated the informant's information. The officer may corroborate the report either by observing the illegal activity or by finding the person, the vehicle, and the location substantially as described by the informant. Bybee, 131 Or. App. at 495, 884 P.2d 906 (citing State v. Vanness, 99 Or.App. 120, 124, 781 P.2d 391 (1989)).

The parties agree that this case presents a question under the "third factor" outlined by our holdings in Black, Bybee, and Vanness. The state contends that the informant's report was sufficiently corroborated because Johnston found a car matching the informant's description, in the location given by informant. Defendant replies that Johnston's observations did not adequately corroborate the informant's report of suspicious or illegal activity and, thus, he lacked reasonable suspicion that defendant was, or had been, engaged in criminal activity. We agree with defendant.

Our previous decisions provide a number of examples of circumstances that adequately corroborated an informant's report. In State v. Faulkner, 89 Or.App. 120, 747 P.2d 1011 (1987), the desk clerk of a motel called the police and reported that a possibly drunk man had left the motel and was driving a silver Toyota van with an Oregon license plate on Clackamette Drive. The clerk identified himself and gave a phone number. A police officer received that information from a dispatcher and...