State v. Kuehne, A164033
| Decision Date | 27 November 2019 |
| Docket Number | A164033 |
| Citation | 454 P.3d 797,300 Or.App. 698 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Gregory KUEHNE, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Erin J. Snyder Severe, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894, arguing that the trial court erred in denying his motion to suppress evidence. Specifically, defendant argues that the trial court should have granted his motion to suppress evidence because he was unlawfully seized under Article I, section 9, of the Oregon Constitution. For the reasons that follow, we affirm.
"We review the denial of a motion to suppress for errors of law." State v. Brown , 293 Or. App. 772, 774, 427 P.3d 221 (2018). "We are bound by the trial court’s express and implicit factual findings so long as they are supported by the record." Id. We state the facts in accordance with our standard of review.
One dark evening, around 5:30 p.m., Coos County Sheriff’s Deputy Smith was dispatched to a report of a "traffic hazard" created by someone pushing a shopping cart in the "travel lane" of Libby Lane, a rural two-lane county road. Libby Lane has no sidewalk and a "very small" shoulder with "not a lot of room on the side of the road."
When Smith arrived, he drove past and observed defendant in the eastbound lane of Libby Lane with a shopping cart. Smith turned his car around and stopped in the westbound lane, approximately 150 feet away from defendant, such that the front of Smith’s patrol car was pointed toward defendant. At the section of Libby Lane where Smith stopped his car, the shoulder was narrow. As a result, Smith’s car was partially obstructing the westbound lane. Smith turned on his rear overhead lights to warn traffic approaching in the westbound lane that the roadway was partially obstructed. Smith’s rear overhead lights flash red and blue and would have been visible to someone behind his car, such as drivers approaching in the westbound lane. Although Smith’s rear overhead lights were not directed toward the front of his car, someone in front of Smith’s car, as defendant was, could see the flashing lights.
After Smith stopped his patrol car, he made contact with defendant "to see what he was doing and if he was okay," and "why he was in the middle of the road."1 Smith and defendant approached each other, and defendant said "hi" to Smith. Smith recognized defendant from prior contacts, which, according to defendant, were nonhostile and "not bad run ins." Smith recalled that defendant had previously told Smith that defendant uses methamphetamine. Smith asked defendant, "Are you high?" During the hearing on defendant’s motion to suppress, Smith explained that he asked defendant whether defendant was high "because of [Smith’s] knowledge of [defendant] and [defendant’s] previous admissions to [Smith] of using methamphetamine[,] and the fact that it was dark and [defendant] was in the middle of the road pushing a shopping cart." Defendant told Smith that he was not high and that the last time he had used methamphetamine was three weeks earlier.
As Smith was talking to defendant, Smith noticed a "large bulge" in the front left pocket of defendant’s pants. Smith did not know what the bulge was. So, Smith asked defendant, "What’s in your pocket?" In response, defendant reached into his pocket and pulled out a "handful of random items," including a "very small plastic box that you could see through." In the plastic box, Smith could see folds of a plastic "[Z]iploc baggy." Smith testified that, based on his training and experience, he believed the Ziploc bag contained controlled substances.
Defendant then took the "entire handful of items" and "crammed them all right back into his pocket." Smith told defendant that he had seen the box and asked defendant to take the box back out of his pocket. Defendant slowly took each individual item out of his pocket until he had taken everything out of his pocket except for the box and he denied having the box. Believing that the box contained a controlled substance, Smith then reached into defendant’s pocket and pulled the box out. Smith then opened the box. It contained a "crystal substance," which later tested positive for methamphetamine.
Before trial, defendant moved to suppress the methamphetamine evidence and his statements to Smith, arguing, among other points, that the trial court should suppress the evidence because Smith unlawfully stopped defendant. The state, for its part, argued, among other points, that Smith’s contact with defendant was not a stop, but merely "casual contact."
The trial court concluded that Smith did not stop defendant. It found that defendant "was not walking near * * * what would be the fog line" but "was walking * * * farther out in the roadway." The trial court next determined that because Smith would be "somewhat suspicious" about the judgment of someone who was "pushing a shopping cart inside the travel lane," and because Smith recognized defendant as a "methamphetamine user," Smith could ask defendant, "Are you high?" The trial court also determined that Smith’s interaction with defendant did not become a stop when Smith asked defendant, "What’s in your pocket?," after noticing the bulge in defendant’s pocket. Finally, the trial court determined that, based on Smith seeing the plastic box with the "folding plastic bag" and defendant’s admission to using methamphetamine three weeks earlier, Smith had "probable cause to believe [that defendant] was in possession of methamphetamine," and, accordingly, Smith "could reach in and * * * grab [the box] out of [defendant’s] pocket."
Defendant waived his right to a jury trial. After the suppression hearing, defendant was convicted by the trial court.
" Article I, section 9, protects individuals against unreasonable searches and seizures." State v. Nelson , 294 Or. App. 793, 796, 433 P.3d 370 (2018). "The Supreme Court has recognized three categories of police-civilian encounters: (1) a mere encounter; (2) a stop; and (3) an arrest." State v. Leiby , 293 Or. App. 293, 296, 427 P.3d 1141 (2018) (citing State v. Backstrand , 354 Or. 392, 399, 313 P.3d 1084 (2013) ). "Mere encounters—sometimes referred to as mere conversation—are noncoercive encounters that do not implicate Article I, section 9." Id . Law enforcement officers are "free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful." Backstrand , 354 Or. at 400, 313 P.3d 1084 (internal quotation marks omitted). "[T]he constitutional concern is with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens." Id. "[N]ot every action by an officer to stop and engage a citizen is constitutionally cognizable as a seizure." State v. Fair , 353 Or. 588, 594, 302 P.3d 417 (2013).
354 Or. at 399, 313 P.3d 1084 (internal quotation marks and citation omitted).
"Whether a particular encounter constitutes a stop is fact-specific and requires an examination of the totality of the circumstances involved, and we consider all of an officer’s actions as a whole greater than the sum of its parts." Nelson , 294 Or. App. at 797, 433 P.3d 370 (internal quotation marks and brackets omitted). "At the very least, to effect a stop, some exercise of coercive authority by the officer is required." Id. (internal quotation marks omitted). "The officer must explicitly or implicitly ‘convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs.’ " Id. (quoting Backstrand , 354 Or. at 401, 313 P.3d 1084 ). "If, by ‘the content of the questions, the manner of asking them, or other actions that police take (along with the circumstances in which they take them)’ a reasonable person would understand that an officer is exercising their authority to detain, the encounter rises to the level of a stop." Id. (quoting Backstrand , 354 Or. at 412, 313 P.3d 1084 ). However, "a show of authority does not exist simply because police officers convey their official status through uniforms, badges, or marked cars, or because an individual feels obliged to cooperate with the officer simply because of the officer’s status." State v. Radtke , 272 Or. App. 702, 707-08, 358 P.3d 1003 (2015) (internal quotation marks omitted). "The fact that the citizen is discomforted by an officer’s approach and request for assistance or information—either because the officer...
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