State v. Johnson

• Decision Date: 13 February 1991
• Citation: 805 P.2d 747,105 Or.App. 587
• Parties: STATE of Oregon, Respondent, v. Bruce Thomas JOHNSON, Appellant. C89-01-30301; A61731.
• Court: Oregon Court of Appeals

Page 747

805 P.2d 747

105 Or.App. 587

STATE of Oregon, Respondent, v. Bruce Thomas JOHNSON, Appellant.

C89-01-30301; A61731.

Court of Appeals of Oregon.

Argued and Submitted Sept. 25, 1990.

Decided Feb. 13, 1991.

Peter Gartlan, Deputy Public Defender, Salem, argued the cause, for appellant. With him on the brief, was Sally L. Avera, Acting Public Defender, Salem.

Anne F. Kelley, Asst. Atty. Gen., Salem, argued the cause, for respondent. With her on the brief, were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Marianne Ghim, Certified Law Student, Salem.

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

EDMONDS, Judge.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992. He assigns as error the denial of his motion to suppress the methamphetamine and drug paraphernalia seized from his person. We reverse.

Late at night, three uniformed police officers arrived at an apartment building parking lot. They were investigating a report of a fight in the parking lot. They saw defendant leave an apartment with a flashlight in his hand, walk to the edge of the parking lot, turn around and walk back toward the apartment. Officer Tercek asked if defendant would talk with him. Defendant stopped and said, "Sure." Defendant was standing on a path behind a bush approximately chest high and had his hand in his pocket. Tercek told defendant that they were investigating a report of a fight. Tercek asked if defendant knew anything about the fight, and defendant said, "No." Tercek did not believe defendant; he testified that he suspected that defendant was either involved in the fight or had seen it. He told defendant that he could not see him very well and asked what he had in his pocket. Defendant said, "Nothing," withdrew his hand from the pocket and raised both hands to a horizontal position. Tercek said, "I can't see you back there, can you step out [from behind the bush]?" Defendant changed his course and walked about 15 feet toward Tercek.

When defendant was in front of him, Tercek asked about the fight again, and defendant continued to deny any knowledge of it. Tercek then said, "Can I check your pockets?", to which defendant replied, "Sure." Tercek patted the outside of defendant's leather jacket and felt a cylindrical object in the left breast area. He reached into the outer breast pocket but was unable to retrieve the object. He asked defendant what the object was, but he did not respond. Tercek then tapped the defendant's left breast area and said, "Where is this?" Defendant said, "Right here," and used his right hand to point down inside the jacket. Tercek pulled aside the lapel, reached inside the jacket and removed a container of methamphetamine and a syringe.

Defendant argues that he was stopped without reasonable suspicion and that his consent to search was involuntary. The state asserts that what occurred was "only a conversation" and that defendant voluntarily consented to the search of his jacket. A stop is "a temporary restraint of a person's liberty by a peace officer lawfully present in any place." ORS 131.605(5). "A person is 'restrained' when, in view of all the circumstances, a reasonable person would have believed he was not free to leave." State v. Horton, 86 Or.App. 199, 202, 738 P.2d 609 (1987). In judging what a reasonable person would believe, we look for physical force or a show of authority by the officer. The test is an objective one to be determined by the totality of the evidence. State v. Kennedy, 290 Or. 493, 498, 624 P.2d 99 (1981).

What starts out as a police-citizen conversation may be converted into a stop by a show of authority. State v. Warner, 284 Or. 147, 162, 585 P.2d 681 (1978). In State v. Painter, 296 Or. 422, 676 P.2d 309 (1984), the court held that the retention of identification converted an encounter into a stop. In State v. Evans, 16 Or.App. 189, 517 P.2d 1225, rev. den. (1974), we held that the police crossed the line from a conversation to a stop when, after the initial inquiry did not furnish reasonable suspicion that the defendant was wanted or that his presence or activities were suspicious, they continued to question him about what he had in his pocket. We said,

"[I]t is unlikely that a pair of young men alone at night on a dark street summoned to a police car, illuminated by lights from that car, required to produce identification and answer questions, and positioned between two uniformed, armed policemen would feel free to walk away. One's will is constrained by what is called in an unrelated constitutional setting 'a police-dominated atmosphere.' * * * [T]he constraint to volition is equally real whether it arises by implication from the color of authority of the police or from their express command." 16 Or.App. at 196, 517 P.2d 1225.

Tercek had already asked defendant about the report of the fight when he inquired about what defendant had in his pocket and requested that he come from out behind the bush to where Tercek stood. Under the circumstances, a reasonable person in defendant's position would conclude that he was being summoned by the officers and was not free to continue walking back to the apartment. The 15 feet that defendant walked toward the officers in response to Tercek's request, which was away from the direction that he was walking, manifested the domination that Tercek exercised. That show of authority converted the conversation into a stop. Because the state concedes that the police did not have reasonable suspicion to believe that defendant had...