State v. Lange

• Decision Date: 02 July 2014
• Docket Number: C110174CR; A148987.
• Citation: 264 Or.App. 126,329 P.3d 797
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Timothy Joshua LANGE, Defendant–Appellant.
• Court: Oregon Court of Appeals

264 Or.App. 126

329 P.3d 797

STATE of Oregon, Plaintiff–Respondent,

v.Timothy Joshua LANGE, Defendant–Appellant.

C110174CR; A148987.

Court of Appeals of Oregon.

Argued and Submitted Aug. 21, 2013.

Decided July 2, 2014.

Jonah Morning star, Deputy Public Defender, argued the cause for appellant.With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jennifer S. Lloyd, Attorney–in–Charge, argued the cause for respondent.On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

NAKAMOTO, J.

In this criminal case, defendant appeals a judgment convicting him of unlawful possession of heroin, ORS 475.854.He assigns error to the trial court's denial of his motion to suppress evidence obtained during an encounter that defendant contends was an unlawful seizure.Specifically, defendant argues that he was unlawfully seized when the police ordered him to leave a cafe restroom without reasonable suspicion of criminal activity.We reverse and remand.

We review a trial court's denial of a motion to suppress for legal error.State v. Ehly,317 Or. 66, 75, 854 P.2d 421(1993).We are bound by the trial court's findings if there is sufficient evidence in the record to support them.Id.If the trial court did not make findings of historical facts on all pertinent issues and there is evidence from which such facts could be decided more than one way, we presume that the facts were decided in a manner consistent with the court's ultimate conclusion.Ball v. Gladden,250 Or. 485, 487, 443 P.2d 621(1968).In accordance with that standard, the facts are as follows.

Beaverton Police Officer Juilfs responded to a 9–1–1 call at a cyber cafe.When Juilfs arrived, he spoke to the cafe manager who had placed the call.The manager told Juilfs that defendant had come into the cafe and purchased 30 minutes of Internet time, but then had left the cafe without using a computer.A few minutes later, defendant had returned to the cafe and immediately had gone into the restroom.The cafe's restroom was a single-occupancy bathroom with a lockable door.The cafe manager had heard banging and moaning sounds coming from the restroom and became concerned that defendant was ill or might need medical attention, which prompted him to call 9–1–1.The manager told Juilfs that defendant had been in the restroom for approximately 15 minutes by the time Juilfs had arrived at the cafe.The manager had not attempted to contact defendant, to ask defendant about his condition, or to ask defendant to leave the restroom.

Before acting on the manager's concerns, Juilfs waited for his cover unit to arrive.While Juilfs waited, he approached the restroom, which he testified was locked, and, without announcing his presence, listened to what defendant was doing inside.Juilfs heard what he described as a “constant level of noise in the bathroom,” including sounds of water running in the sink, a male voice clearing his throat several times, and “some kind of banging and rustling noises.”Juilfs testified that what he heard did not sound like someone using the toilet.

Juilfs had been listening for approximately five minutes when his cover unit arrived.Then, Juilfs “started banging” on the restroom door and said, “Beaverton Police, we need you to step out.”Defendant responded that he was coming to the door, and approximately one minute later defendant opened the door and stepped out of the restroom.Juilfs testified that defendant“seemed unsteady on his feet as he walked out” of the restroom and that he was “kind of argumentative” when he asked why the police were there.Juilfs moved defendant away from the restroom and directed him into the lobby of the cafe so that they could have a safe place to talk.

In the lobby, defendant continued asking why the police were there and what the problem was.In response, Juilfs asked defendant why he had been in the restroom for such a long time.Defendant responded that he felt sick and had “explosive diarrhea.”Juilfs became concerned that defendant had been using drugs in the bathroom, and, as a result, Juilfs asked defendant whether he had any hypodermic needles or weapons on him.Defendant responded that he did not, but Juilfs conducted a patdown of defendant and discovered a pocketknife.

Then Juilfs asked defendant whether he could search defendant's pockets.Defendant responded that he could not.Because he was concerned that defendant might have a hypodermic needle on him, Juilfs placed defendant in handcuffs but told him that he was “not under arrest.”Juilfs then left defendant with another officer while he searched the restroom.Juilfs found a small tied-off balloon in the trashcan that had been torn in half, which he identified as a bindle commonly used to transport heroin.

Juilfs returned to defendant and gave him his Miranda warnings.Although defendant denied using heroin, Juilfs was nevertheless “convinced” that defendant had been using heroin in the bathroom based on his observations of defendant, including that defendant had been unsteady on his feet, his voice had become raspy and lost volume as he spoke, and he was struggling to keep his eyes open.Juilfs decided to take defendant to Hooper Detox, a detoxification facility.

Before placing defendant in his patrol car, Juilfs searched defendant's pockets and discovered a small bindle similar to the one found in the bathroom.Juilfs also discovered a hypodermic needle and a kitchen spoon commonly used for cooking heroin, which had heroin residue on it.Later testing of the contents of the bindle revealed that it contained heroin.Defendant was charged by information with one count of unlawful possession of heroin, ORS 475.854.

In a pretrial motion, defendant moved to suppress all evidence obtained and statements made during the encounter, citing Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution.The trial court held a hearing, at which only Juilfs testified.At that hearing, the state argued that the officers were authorized under ORS 430.399(1)¹ to take defendant to the Hooper Detox facility, and that the search of defendant before transporting him was lawful because it was made pursuant to the inventory policy contained in the Beaverton Police Department's General Order.Additionally, the state argued that defendant was “not constitutionally stopped when he walked out of the bathroom, even if he's physically stopped.The officers were there looking into—checking on his welfare,” and that any stop of defendant in this case was based on a reasonable suspicion that defendant had committed a crime.

In reply, defendant argued that he was unlawfully stopped beforehe was placed in detoxification hold.He asserted that the officers lacked reasonable suspicion to stop him and frisk him and lacked probable cause to arrest him, which he argued had occurred when they handcuffed him.Defendant contended that, before he was handcuffed, the only facts known to the officers were that defendant behaved oddly and refused to consent to a search.Citing State v. Lavender,93 Or.App. 361, 762 P.2d 1027(1988), defense counsel argued that those facts were insufficient to satisfy the state's burden and, accordingly, everything that occurred after each of those stops should be suppressed.

The trial court denied defendant's motion to suppress, reasoning:

“I think the officer did have reasonable suspicion in the beginning when he was listening in the bathroom there.The 15 minutes of time in the bathroom and then when he came out, he was unsteady on his feet.

“And just the progression of the events clearly indicate to me that the officer could reasonably come to the conclusion that he was under the influence of heroin, based upon the officer's opinion that he stated and the factors that he stated and the officer's experience.

“So—And then under the General Order there's a requirement that he take him to a treatment facility, along with * * * [ORS] 403.399.And I think that the officer complied with the statute.So the motion to suppress will be denied.”

Defendant was convicted after a trial on stipulated facts; this timely appeal followed.

On appeal, defendant's main argument is that he was illegally seized in violation of Article I, section 9, of the Oregon Constitution when the officer ordered him out of the restroom without reasonable suspicion that defendant was committing, or had committed, a crime.²Defendant contends that a reasonable person, having just been ordered to exit a restroom by a Beaverton Police Officer, would believe that he was not free to ignore the officer's order and remain in the restroom.

The state responds that Juilfs's statement to defendant that the police needed him to come out of the restroom was not a “stop” requiring reasonable suspicion.According to the state, Juilfs's statement did not unlawfully interfere with defendant's liberty because it was not “conduct significantly beyond that accepted in ordinary social intercourse,”Ehly,317 Or. at 79, 854 P.2d 421, and it was precisely what the cafe manager had a right to do himself.The state also argues, citing State v. Baker,154 Or.App. 358, 961 P.2d 913, rev. den.,327 Or. 553, 971 P.2d 409(1998), that the directive for defendant to come out of the restroom was mere conversation.We disagree and conclude instead that defendant was stopped when Juilfs ordered him to leave the restroom.

Article I, section 9, of the Oregon Constitution provides, as relevant here, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure [.]”Though encounters between the police and citizens are of “infinite variety,”State v. Holmes,311 Or. 400, 406, 813...