State v. Holdorf

• Jurisdiction: Oregon
• Citation: State v. Holdorf, 250 Or App 509, 280 P3d 404 (Or. App. 2012)
• Docket Number: A144719.,09061153
• Parties: STATE of Oregon, Plaintiff–Respondent, v. John Leonard HOLDORF, Jr., Defendant–Appellant.
• Court: Oregon Court of Appeals
• Decision Date: 20 June 2012

250 Or.App. 509

280 P.3d 404

STATE of Oregon, Plaintiff–Respondent,

v.John Leonard HOLDORF, Jr., Defendant–Appellant.

09061153; A144719.

Court of Appeals of Oregon.

Argued and Submitted Dec. 21, 2011.

Decided June 20, 2012.

Alice Newlin–Cushing, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief was John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

SCHUMAN, P.J.

Defendant appeals from a conviction for possession of marijuana and methamphetamine, assigning error to the trial court's denial of his motion to suppress evidence. According to defendant, the evidence derived from an unlawful stop; he takes issue with the trial court's conclusion that the police officer who executed the stop had reasonable suspicion that defendant was involved in criminal activity and with the court's alternative conclusion that the stop was justified by officer safety concerns. We reverse and remand.

The following facts are not disputed. Albany Police Detective Davis was on duty at approximately 8:00 one morning when he noticed a blue SUV occupied by a driver and a passenger. Davis recognized the driver as a man named Watts. Davis knew that Watts had been convicted of a felony and was wanted on an outstanding warrant for violating parole; that he was under investigation for involvement in a methamphetamine ring; that he had been observed recently in the same blue SUV in what another officer believed was a drug transaction in a fast food restaurant parking lot; and that, according to that other officer, Watts had on another occasion attempted to elude capture in a high speed chase in the same blue SUV. Davis put out a call for other officers in the area, alerting them to be on the lookout for the SUV and relating that it was being driven by a wanted felon. Officer Salang heard the call and contacted Davis, who advised him to stop the SUV. He also told Salang that the driver was Watts and gave him a “thumbnail sketch” about Watts's suspected activities. Salang knew Watts from prior encounters and knew that there was an outstanding probation violation warrant for him.

Shortly thereafter, Salang spotted Watts driving the SUV and followed him until he committed a traffic infraction, at which point Salang activated his overhead lights. Watts pulled over and stopped in a K–Mart parking lot. Salang called for backup. He then approached the SUV and confirmed that the driver was, in fact, Watts. Salang asked Watts for his driver's license; Watts provided a jail inmate identification card instead.

Defendant was a passenger. Salang noticed that he appeared nervous and fidgety, and, based on those facts, Salang suspectedthat he was under the influence of methamphetamine.

Salang then checked the warrant status of Watts and defendant. He learned that Watts was, as suspected, wanted on an outstanding warrant for violating probation, but that defendant was “clear.” Defendant asked if he could leave. Salang, worried that defendant might circle back and stab or shoot him, told defendant he could not. Shortly thereafter Salang's backup arrived; the officers handcuffed and arrested Watts.

After Watts was handcuffed and arrested, Salang returned to the SUV and asked defendant if there were any weapons or contraband in it. Defendant told him that there was a pocket knife between the passenger seat and the door; when Salang opened the door, the knife was there. Salang then asked defendant if there were any other weapons or contraband in the SUV, and defendant replied that he was carrying a pocket knife. When defendant began to reach into his pocket to extract it, Salang ordered him not to do so, but defendant did not comply. At that point, Salang restrained defendant, told him to “settle down,” informed him that he would be detained, told him he was not under arrest, but read him the Miranda warnings nonetheless. Defendant was then handcuffed and patted down. Salang felt the knife that defendant had referred to in his pocket; he also felt a hard rectangular shape. Further pat downs disclosed two additional containers. Salang extracted them from defendant's pocket and asked for consent to open them. Defendant declined. A drug dog was brought to the scene and alerted to the containers. An officer asked for consent to open them, and this time defendant consented. They contained the disputed contraband.

Defendant was charged with possession of marijuana, ORS 475.864(3), and possession of methamphetamine, ORS 475.894. At a pretrial hearing, he moved to suppress all of the evidence on the ground that it resulted from an unlawful stop. The court denied the motion, and defendant entered a conditional guilty plea, reserving the right to appeal the court's denial of the motion to suppress. Defendant was subsequently convicted.

On appeal, defendant renews the argument he made to the trial court that Salang stopped him without reasonable suspicion that he was involved in criminal activity. Reasonable suspicion

“requires an objective test of observable facts. Whether the suspicion is reasonable often will depend on the inferences drawn from the particular circumstances confronting the officer, viewed in the light of the officer's experience. If a police officer is able to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime, the officer has ‘reasonable suspicion’ and hence may stop the person for investigation.”

State v. Ehly, 317 Or. 66, 80, 854 P.2d 421 (1993) (citations and footnote omitted). The relevant “particular circumstances” include the totality of the circumstances existing at the time and place of the interaction between the officer and defendant. ORS 131.605(6). Here, it is indisputable that Salang stopped defendant when he told defendant that he was not free to leave. The circumstances confronting Salang at that time consisted of the following “specific and articulable facts”: (1) Defendant appeared nervous, fidgety, and unwilling to look Salang in the eye, traits that led Salang to believe, based on his experience, that defendant was currently under the influence of methamphetamine. (2) There were no warrants out on defendant. (3) Defendant was in the company of a person suspected of being involved in drug crimes and who was the subject of an outstanding felony probation violation warrant. (4) Defendant had reportedly been in a vehicle that had been seen at what appeared to be a drug transaction and (5) that same vehicle had apparently eluded a police officer.

Defendant points out that we have stated, “The mere fact that a person associates with another person involved with methamphetamine does not support a reasonable suspicion that that person is also involved with methamphetamine.” State v.Zumbrum, 221 Or.App. 362, 369, 189 P.3d 1235 (2008). He also notes that, in State v. Holcomb, 202 Or.App. 73, 77–78, 121 P.3d 13,adh'd to on recons.,203 Or.App. 35, 125 P.3d 22 (2005), we declined to endorse the proposition that “a person's recent drug use is sufficient, without more, to establish reasonable suspicion of present drug possession.” And he calls our attention to the following discussion in State v. Frias, 229 Or.App. 60, 65–66, 210 P.3d 914 (2009), noting its many similarities to the present case:

“The facts relied on by the trial court do not supply reasonable suspicion that defendant possessed drugs at that time. Simply put, whatever the inference that could be reasonably drawn about defendant's past drug use, there was no evidence of a current or imminent crime, e.g., possession of a controlled substance (ORS 475.840(3)) or driving under the influence of an intoxicant (ORS 813.010). The fact that defendant was awaiting sentencing on a drug charge does not give rise to reasonable...