State v. Heater

• Decision Date: 29 May 2014
• Docket Number: CR100587,A151253.
• Citation: 328 P.3d 714,263 Or.App. 298
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Robert Merle HEATER, Defendant–Appellant.
• Court: Oregon Court of Appeals

263 Or.App. 298

328 P.3d 714

STATE of Oregon, Plaintiff–Respondent,

v.Robert Merle HEATER, Defendant–Appellant.

CR100587; A151253.

Court of Appeals of Oregon.

Argued and Submitted Feb. 19, 2014.

Decided May 29, 2014.

Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.^*

GARRETT, J.

Defendant was convicted of one count of unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant moved to suppress evidence obtained from a warrantless search of the car he was driving. After the trial court denied defendant's motion, defendant entered a conditional guilty plea, reserving his right to appeal the trial court's ruling on his motion to suppress. For the reasons that follow, we conclude that the trial court erred in denying defendant's motion to suppress. We reverse and remand.

BACKGROUND

On the morning of October 10, 2010, defendant was visiting his grandmother at an assisted living facility in McMinnville. Defendant was returning home to Vancouver, Washington, after an overnight trip to the Oregon Coast. Police received a report from an unidentified caller of a disturbance at the facility. Officers High and Frick were dispatched to the scene with information of a possible domestic disturbance involving defendant and a woman, Lewis. According to the caller, Lewis appeared to be under the influence of drugs. The dispatcher also reported a description of a car parked at the scene that possibly belonged to defendant.

High observed a car matching the dispatcher's description parked in front of one of the residence units. He knocked on the front door of the unit, and defendant answered and came outside voluntarily. Frick approached Lewis, who was also outside, several hundred yards away.

In response to questions from High, defendant said that he and Lewis were visiting defendant's grandmother. Defendant also said that he and Lewis had had an argument about money but not a physical confrontation. Defendant exhibited physical characteristics—specifically, erratic speech, erratic movements, and an overall demeanor—that suggested prolonged substance abuse. ¹

High asked defendant whether he had any illegal drugs in his possession. Defendant replied that he did not. High then asked for consent to search defendant's car, and defendant consented. High told defendant that defendant's consent could be revoked at any time. During his search, High found baggies containing what he suspected was (and was later confirmed to be) methamphetamine. When he told defendant that he had found the baggies, defendant revoked his consent, and High stopped the search. High told defendant that he would likely seize the vehicle and seek a search warrant. Defendant again consented to a search, including searches of individual bags and backpacks in the car, during which High discovered additional illegal drugs and drug paraphernalia. Defendant was arrested and placed in the back of the officer's car.

Defendant was charged with one count of unlawful possession of methamphetamine, ORS 475.894. He filed a motion to suppress the evidence obtained during High's search, arguing that the state failed to prove that the search was justified by an exception to the state and federal warrant requirements.² Following the motion hearing, the trial court issued a letter opinion denying defendant's motion to suppress and concluding that the evidence was obtained during a lawful consent search. Defendant entered a conditional guilty plea to one count of possession of methamphetamine and reserved his right to appeal the trial court's denial of his motion to suppress.

DISCUSSION

We review a denial of a motion to suppress for errors of law. 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. Caprar, 214 Or.App. 434, 439, 166 P.3d 567 (2007), rev. den.,345 Or. 317, 195 P.3d 65 (2008).

We begin by clarifying what is not at issue on appeal. Defendant does not challenge the legality of High's initial stop to investigate the alleged domestic disturbance. For its part, the state does not dispute either that defendant was “stopped” at that time, or that High's questioning of defendant about illegal drugs also constituted a stop. Both parties agree that the issue on appeal is whether High unlawfully extended the initial, lawful stop in order to investigate whether defendant possessed drugs. Defendant argues that High lacked reasonable suspicion to extend the stop in order to launch an investigation into whether defendant possessed illegal drugs. The state argues that High had reasonable suspicion of drug possession but concedes that, if High did not, then the stop was unlawfully extended and the challenged evidence should be suppressed.³

A police officer's stop of a person is supported by reasonable suspicion when (1) the officer has a subjective belief that the person has committed or is about to commit a crime, and (2) that belief is objectively reasonable in light of the totality of the circumstances at the time of the stop. ORS 131.605(6); ⁴State v. Maciel, 254 Or.App. 530, 535, 295 P.3d 145 (2013) (citing State v. Belt, 325 Or. 6, 11, 932 P.2d 1177 (1997)); State v. Espinoza–Barragan, 253 Or.App. 743, 747, 293 P.3d 1072 (2012). For an officer's suspicion to be objectively reasonable, the officer must be able to “point to specific and articulable facts” that justify the officer's suspicion. State v. Ehly, 317 Or. 66, 80, 854 P.2d 421 (1993). An officer's experience is “relevant to what inferences the officer may draw from the circumstances. But, an officer's experience cannot form the entire basis for reasonable suspicion.” State v. Martin, 260 Or.App. 461, 470, 317 P.3d 408 (2014) (internal citations omitted); see also State v. Alvarado, 257 Or.App. 612, 631, 307 P.3d 540 (2013) (“An officer's training and experience are relevant to, and may help explain why, a particular circumstance is suspicious. We have also recognized, however, that the phrase ‘training and experience’ is not a magical incantation with the power to imbue speculation, stereotype, or pseudoscience with an impenetrable armor of veracity.”) (internal citations, punctuation, and quotations omitted). As the Oregon Supreme Court explained in State v. Valdez, 277 Or. 621, 628, 561 P.2d 1006 (1977),

“[E]xperienced police develop what amounts to an intuitive sixth sense about matters of this kind. * * *. Such instinct and experience cannot, however, form the entire basis for ‘reasonable suspicion,’ because no practical control can be exercised over police by courts if, in the absence of any very remarkable activity, the officer's instinct and experience may be used as the sole reason to justify infringement upon the personal liberty sought to be protected * * *.”

An officer's reasonable suspicion must be “particularized to the individual based on the individual's own conduct.” State v. Miglavs, 337 Or. 1, 12, 90 P.3d 607 (2004) (citing State v. Stanley, 325 Or. 239, 245–46, 935 P.2d 1202 (1997)).

We have observed that reasonable suspicion, as a legal concept, is lacking in “bright lines”; as such, “every reasonable suspicion case must be decided on its own facts, and attempting to fact-match with existing cases can be a fool's errand.” State v. Holdorf, 250 Or.App. 509, 514, 280 P.3d 404 (2012), rev. allowed,353 Or. 208, 297 P.3d 480 (2013) (internal quotations and citations omitted). “[A] set of facts will not always create a reasonable suspicion just because those facts are consistent with, but do not necessarily suggest, a crime [has been] committed.” Alvarado, 257 Or.App. at 629, 307 P.3d 540.

An extension of an otherwise lawful stop to investigate matters unrelated to the initial basis for the stop must be justified anew by reasonable suspicion of criminal activity in order to be lawful under ORS 131.615 and Article I, section 9, of the Oregon Constitution.⁵ State v. Frias, 229 Or.App. 60, 63–64, 210 P.3d 914 (2009); see also State v. Ehret (All1248), 184 Or.App. 1, 10, 55 P.3d 512 (2002) (noting that an officer “did not have a reasonable suspicion of criminal activity that would have justified the continuation of the detention of defendant”).

There are two situations in which questioning unrelated to the initial basis for a stop can constitute an unlawful extension of the stop. First, an officer might conclude a lawful stop (for example, by telling a person that he or she is free to leave) and then initiate a second stop by inquiring about other matters without reasonable suspicion. State v. Huggett, 228 Or.App. 569, 574, 209 P.3d 385 (2009). In the second situation, an officer might detain a person beyond the time reasonably required to investigate the initial basis for the stop, without telling the person expressly or by implication that he or she is free to leave and without the requisite reasonable suspicion to support a new basis for a stop. Id.; see also State v. Rodgers, 219 Or.App. 366, 371, 182 P.3d 209, aff'd,347 Or. 610, 227 P.3d 695 (2010); State v. Broughton, 221 Or.App. 580, 587–88, 193 P.3d 978 (2008).

This case involves the second situation. High initially stopped defendant based on suspicion of a domestic disturbance. High testified that during the course of a domestic disturbance stop, he and his partner typically separate the parties involved, question each party individually, and then communicate with each other over the radio to determine the appropriate next steps. In this instance, however, after asking defendant about the disturbance, High began questioning defendan...