State v. Kennedy
| Decision Date | 18 February 1981 |
| Docket Number | No. C,C |
| Citation | 290 Or. 493,624 P.2d 99 |
| Parties | STATE of Oregon, Petitioner, v. Leroy Franklin KENNEDY, Respondent. 79-01-30055; CA 15145; SC 27047. |
| Court | Oregon Supreme Court |
Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for petitioner. With him on brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Ann Morgenstern, Portland, argued the cause for respondent. With her on brief was George M. Jenks, Portland.
Before DENECKE, C. J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ. *
Defendant was convicted of the crime of Possession of a Controlled Substance (cocaine) (ORS 475.992). Prior to trial, defendant moved to suppress evidence found in defendant's handbag at Portland International Airport on the grounds that the evidence was seized in a warrantless search after an illegal stop and that any consent to search was "the product of coercion, deception and/or acqiescence to lawful authority." The trial court allowed the motion to suppress. The Court of Appeals affirmed on the ground that there had been a "stop" which was not based upon "reasonable suspicion" and that, as a result, "defendant's consent to the search was irrelevant." 45 Or.App. 911, 919, 609 P.2d 438 (1980). Four members of that court dissented. We allowed the state's petition for review.
Officer McLaughlin of the Portland Police Department, Narcotics Detail, received a telephone call from Detective Berks of the Fort Lauderdale, Florida, sheriff's office. Detective Berks informed Officer McLaughlin that two men who fit a "drug smuggler's profile" had boarded a plane for Portland. Detective Berks related to Officer McLaughlin a description of the men and a description of their conduct in relation to the "drug smuggler's profile" that had led Detective Berks to suspect that they were carrying narcotics.
After verifying the identity of Detective Berks, Officer McLaughlin and five other officers then went to the Portland Airport to intercept the two suspects. The officers observed two men matching the descriptions given by Detective Berks, one of whom was the defendant, disembark from the flight from Fort Lauderdale. The officers then followed the suspects from the gate area where they had disembarked through the baggage and ticket areas and out to the end of the terminal building. At that point defendant's companion left defendant.
As defendant proceeded toward the parking lot Officer Johnston approached defendant and said, Defendant hesitated for a moment and then said, "Do you want to talk to me?"
Officer Johnston displayed his badge, identified himself as a police officer and gave his name. One other officer was also present. 1 Defendant then asked Johnston why the officer wanted to talk with him. Johnston informed defendant that he "had information that led (him) to believe that (defendant) may be carrying narcotics on his person or in his luggage." Defendant denied that he was carrying narcotics and said, "Would you like to search my luggage?" Johnston had not made any request for consent to search defendant or his luggage.
Before searching defendant's handbag, Officer Johnston frisked him for weapons. Johnston then searched defendant's handbag and found a small glass vial, empty on the inside, but which had a white powder along the threads, identified by Johnston as cocaine, and a razor blade with masking tape over the edge. Defendant denied knowing how the vial got into his luggage. That vial was the subject of defendant's motion to suppress.
These facts, together with the contentions of the parties, present three questions:
(1) Did the encounter between the police and defendant at the airport constitute a "stop" within the meaning of ORS 131.605(5)?
(2) If the encounter between the police and defendant constituted a "stop" within the meaning of ORS 131.605(5), did use of so-called "drug profile" information provide the police with "reasonable suspicion" so as to justify the "stop" according to ORS 131.615(1)?
(3) If the encounter between the police and defendant was a "stop" unjustified by reasonable suspicion, was the search so "tainted" by the unjustified "stop" as to be illegal despite defendant's consent, or was defendant's consent sufficiently voluntary to validate the search?
Before addressing these questions it should be noted that some ambiguity exists as to the grounds upon which defendant seeks relief. Defendant does not cite or appear to rely upon relevant search and seizure provisions of the Oregon Constitution (Article I, § 9) or the United States Constitution (the Fourth and Fourteenth Amendments) but appears to rely solely upon ORS 131.605-131.625. This court has recognized, however, that those statutory provisions were intended to be in part a codification of decisions by the United States Supreme Court and Oregon Supreme Court interpreting those constitutional provisions, and that the purpose of the statutory provisions is to protect interests of the kind which are protected by the Fourth Amendment of the United States Constitution and by Article I, § 9 of the Oregon Constitution. See State v. Valdez, 277 Or. 621, 625, 629, 561 P.2d 1006 (1977). Therefore, analysis of defendant's rights under ORS 131.605-131.625 is substantially the same as analysis of his rights under the search and seizure provisions of the Oregon and Federal constitutions.
In State v. Warner, 284 Or. 147, 161, 585 P.2d 681 (1978), this court recognized three kinds of "encounters" between police and citizens: (1) an arrest, justified only by probable cause; (2) a stop, i. e., "a temporary restraint of a person's liberty," ORS 131.605(5), which is justified by reasonable suspicion that the person has committed a crime, ORS 131.615(1); and (3) "mere conversation" (questioning without restraint of liberty), which needs no justification.
Defendant does not contend that he was under arrest in this case. He does contend, however, that his encounter with Officer Johnston constituted a "stop" and one without reasonable suspicion. The state contends, to the contrary, that the encounter was that of the third kind, a "mere conversation," and therefore did not need to be justified by reasonable suspicion. In the alternative, the state contends, that even if the encounter was a "stop," the "drug profile" provided the officers with reasonable suspicion for the "stop."
The Court of Appeals found that Officer Johnston, by identifying himself, displaying his badge and informing defendant that he was suspected of carrying narcotics, had restrained defendant's liberty and thereby made a "stop." 45 Or.App. at 915, 609 P.2d 438. The court further found that the characteristics of the "drug smuggler's profile" upon which the police based their stop of defendant did not provide reasonable suspicion to justify the stop. Id. at 919, 609 P.2d 438.
ORS 131.605(5) defines a stop as:
" * * * a temporary restraint of a person's liberty by a peace officer lawfully present in any place."
In Warner, supra, this court interpreted ORS 131.605(5) to mean that for purposes of determining whether a "stop" has occurred, it suffices that a person's liberty is restrained by either physical force or by a show of authority. 284 Or. at 162, 585 P.2d 681.
Determination of whether a "stop" has occurred will depend largely upon the particular facts of each case. See 284 Or. at 149, 585 P.2d 681. It is clear, however, that a police officer may approach a citizen, identify himself as an officer and ask some preliminary questions without making a "stop." This is consistent with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the United States Supreme Court appeared to hold, at least in effect, that such a police-citizen encounter as just described does not amount to a "seizure" within the meaning of the Fourth Amendment. 2 Because ORS 131.605(5) is based in part upon Terry (see Commentary, Proposed Oregon Criminal Code of 1972 at 24 (1972)), that Oregon statute should also be given an interpretation consistent with Terry.
It is unnecessary, however, to decide whether the facts of this case and, in particular, the fact that Officer Johnston informed defendant that he was suspected of carrying narcotics, were such as to constitute a "stop." It is also unnecessary to decide whether the "drug smuggler's profile" provided reasonable suspicion to justify a stop of defendant. 3 Assuming, without deciding, that the "encounter" between defendant and the police officers was a "stop" that was not justified by reasonable suspicion, we believe that defendant's consent to the search was nevertheless voluntary in light of all the facts, and that as a result of that voluntary consent the evidence found as a result of the search was admissible regardless of whether the stop was unjustified.
In considering the validity of defendant's consent in its relation to the question whether the search based upon that consent was illegal so as to require suppression of the evidence discovered by that search, we must recognize, as stated in State v. Douglas, 260 Or. 60, 67, 488 P.2d 1366 (1967) that:
We must also recognize, as recently held in State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), that:
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State v. Meyer
...evidence obtained in the ensuing search, they are relevant to a determination of whether the consents were voluntary. State v. Kennedy, 290 Or. 493, 624 P.2d 99 (1981). The state has the burden of proving, by a preponderance of the evidence, that the consents were voluntary. State v. Steven......
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...been discovered "but for" the unlawful police conduct. State v. Quinn, 290 Or. 383, 394-97, 623 P.2d 630 (1981); State v. Kennedy, 290 Or. 493, 500-01, 624 P.2d 99 (1981). Thus, the fact that, "but for" the unlawful conduct, the police would not have been in a position to (for example) seek......
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