State v. Hammonds

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Appellant, v. Wende A. HAMMONDS, Respondent. STATE of Oregon, Appellant, v. Darryl W. DESHLER, Respondent. 96-11-38355 and 96-11-38356; CA A98063 (Control) and CA A98064.
• Citation: 155 Or.App. 622,964 P.2d 1094
• Court: Oregon Court of Appeals
• Decision Date: 02 September 1998

Page 1094

964 P.2d 1094

155 Or.App. 622

STATE of Oregon, Appellant, v. Wende A. HAMMONDS, Respondent.

STATE of Oregon, Appellant, v. Darryl W. DESHLER, Respondent.

96-11-38355 and 96-11-38356; CA A98063 (Control) and CA A98064.

Court of Appeals of Oregon.

Argued and Submitted June 30, 1998.

Decided Sept. 2, 1998.

Holly A. Vance, Assistant Attorney General, argued the cause for Appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Andy Simrin, Deputy Public Defender, argued the cause for Respondent Hammonds. With him on the brief was Sally L. Avera, Public Defender.

No appearance for Respondent Deshler.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

The state challenges a trial court order suppressing statements made by defendants after the car in which they were traveling was pulled over for a traffic infraction. Specifically, the state contends that, because the officer who stopped defendants reasonably suspected that they had committed or had agreed to commit the crimes of prostitution and promoting prostitution, he was authorized to expand the scope of the traffic stop to investigate those crimes. Hence, the trial court erred in suppressing the statements obtained as a result of the expansion of the traffic stop. We agree. ¹

Although it ruled against the state on legal grounds, the trial court stated on the record that there appeared to be no dispute over the facts of the case and that it fully accepted the testimony of the state's police officer witness, Kelly. We therefore examine the facts as testified to by Kelly, including those inferences that reasonably can be drawn from those facts. State v. Martin, 327 Or. 17, 19 n. 1, 956 P.2d 956 (1998).

At the hearing on the motion to suppress, Kelly testified that, in the early morning on November 1, 1996, he had been patrolling in Portland's Northeast Precinct. Kelly had been a police officer for the City of Portland for nine years and had spent three and one-half of those years as a vice officer. At approximately 4:00 a.m., Kelly was driving on North Vancouver Street near Portland Boulevard when he noticed a van heading southbound on Vancouver. The van's left turn indicator was flashing, but the van turned right. Kelly followed the van and signaled for it to pull over. After the van pulled over, Kelly approached the driver's side door. As he approached the door, he noticed the driver fumbling with the waistband of his trousers. ² Kelly also noticed that there was a woman passenger (defendant Hammonds), and that both she and the driver seemed nervous. He could smell alcohol on the driver's breath. On the front seat of the van next to the driver, and on the floor of the driver's side, Kelly saw magazines that he described as "pornographic," depicting pictures of naked women. ³ Kelly testified that the area in which the van had been driving was "a primary part of town where prostitutes take their johns to perform sex."

Kelly testified that, based on his experience as a vice officer, those observations, taken together, had led him to believe that defendants were engaged in an act of prostitution. He asked the driver to get out of the van and walked him around to the back of it, where he questioned him about his activities. The driver eventually told him that he had picked up the woman "to date" and that he was going to give her fifty dollars to have sex. Kelly then spoke with the woman, who told him that the driver was going to pay her to introduce him to two other women for sex.

Relying on State v. Dominguez-Martinez, 321 Or. 206, 895 P.2d 306 (1995), the trial court ruled that the defendants' statements, although voluntary, had to be suppressed because Kelly was not justified in expanding the scope of the traffic stop. In Dominguez-Martinez, the court held that

"an officer who stops a person for a traffic infraction may investigate only that infraction, unless the state can point to some basis other than the traffic infraction to broaden the scope of the investigation."

321 Or. at 212, 895 P.2d 306. In State v. Aguilar, 139 Or.App. 175, 181, 912 P.2d 379, rev. den. 323 Or. 265, 918 P.2d 846 (1996), this court determined that the proper standard for permitting an officer to expand the scope of a traffic infraction investigation was reasonable suspicion of other criminal conduct. Reasonable suspicion is defined by ORS 131.605(5) as "a belief that is reasonable under the totality of the circumstances existing at the time and place the police officer acts." The standard has both a subjective and an objective component. The officer must "subjectively believe that the person stopped has committed a crime" and that belief must be objectively reasonable considering the totality of the circumstances. State v. Belt, 325 Or 6, 11, 932 P.2d 1177 (1997).

Here, Kelly testified that he believed that defendants had engaged in an act of prostitution, so the first part of the test is satisfied. The issue that remains is whether that belief was objectively reasonable. To establish that, Kelly had to identify specific and articulable facts giving rise to a reasonable inference that defendants had committed a crime. Aguilar, 139 Or.App. at 182, 912 P.2d 379. The state contends that Kelly's observations were sufficient to establish that his belief that defendants had engaged in an act of prostitution was reasonable. It argues that the trial court erred in ruling that, because there could have been an innocent explanation for defendants' conduct, the facts did not support a reasonable suspicion of criminal conduct. We agree with the state.

In ruling on the motion, the court commented:

"As I indicated to the prosecutor, I think that in a drug case a similar series of events which we've [described] here would probably get me to find probable cause. ⁴ * * * My big problem with sex cases versus drugs or DUII is that there is a non-paid explanation for sexual activity between two people[.]"

We have previously held that the fact that there are possible lawful explanations for behavior does not mean that the behavior may not give rise to a reasonable suspicion of criminal conduct. State v. Crites, 151 Or.App. 313, 316, 948 P.2d 757 (1997), rev. den. 327 Or. 82, 961 P.2d 216 (1998). It is true that it is possible that the couple in the...