State v. Langston

• Decision Date: 05 November 2008
• Docket Number: A130595.,050331175.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. John Arland LANGSTON, Defendant-Appellant.
• Court: Oregon Court of Appeals

196 P.3d 84

223 Or. App. 590

STATE of Oregon, Plaintiff-Respondent, v. John Arland LANGSTON, Defendant-Appellant.

050331175.

A130595.

Court of Appeals of Oregon.

Argued and Submitted January 10, 2008.

Decided November 5, 2008.

James N. Varner, Dundee, argued the cause and filed the brief for appellant.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before WOLLHEIM, Presiding Judge, and SERCOMBE, Judge, and RIGGS, Senior Judge.

SERCOMBE, J.

Defendant appeals his conviction for two counts of identity theft, ORS 165.800, and assigns error to the trial court's denial of his motion to suppress. Defendant contends that he was unlawfully stopped by police officers without reasonable suspicion of criminal activity and that evidence obtained after that stop should be suppressed because it was derived from the preceding illegality. We review for errors of law, State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993), and affirm.

On March 12, 2005, Portland Police Officers Stensgaard and Leitgeb were sitting in their parked patrol car across the street from a 7-Eleven convenience store. The officers watched defendant leave the store, get into an automobile, and back out of a space in the store's parking lot. As he did so, the car began making "herky-jerky" motions. Defendant quickly pulled back into the parking space, got out of the vehicle, and raised the hood. Jenkins, defendant's passenger, remained in the vehicle.

Concerned that defendant was having engine trouble, Leitgeb used a bullhorn to call out to defendant and ask if he needed help. Stensgaard and Leitgeb then drove over to the store's parking lot to speak with defendant. Leitgeb parked the patrol car on the side of and perpendicular to defendant's vehicle but did not block its egress. The police officers approached defendant, who was standing near the hood of the car. Leitgeb asked defendant for his identification; defendant said that he did not have his identification with him. Leitgeb then asked for and obtained defendant's name and date of birth. She planned to use that information to run a warrant check on defendant. However, she did not tell defendant of her plan or conduct the warrant check in defendant's presence. Defendant testified that he "figured [the police] were going to" run a warrant check, but that he "didn't know for sure." There was no other questioning of defendant by the police officers.¹ The inquiry revealed that defendant had a "statewide felony warrant." Leitgeb returned to defendant's car and immediately arrested him. The entire encounter with defendant was peaceful; the officers made no threats or demands of defendant, and they did not draw their weapons.

After defendant's arrest, the officers determined that neither defendant nor Jenkins owned the car. They arranged for the car to be towed and conducted an inventory search of the vehicle. Inside, officers found a backpack that defendant claimed as his own. The search of that backpack and the vehicle revealed items that suggested that defendant may have been guilty of the crime of identity theft. Defendant was subsequently indicted on identity theft charges.

Defendant made a pretrial motion to suppress evidence "obtained as a result of the stop, detention, interrogation, arrest and search of [defendant] by officers of the Portland Police Department." Defendant argued that he was illegally stopped when Leitgeb asked for his name and date of birth, that the inventory search of the vehicle was not conducted pursuant to properly authorized administrative procedures, that the seizure of his backpack was an unlawful search incident to arrest, and, finally, that all evidence derived from the unlawful search and seizure must be suppressed as "fruit of the poisonous tree." After a hearing, the trial court orally denied defendant's motion to suppress without making any relevant findings.²

On appeal, defendant abandons his arguments on the inventory search of the vehicle and the seizure of his backpack as an unlawful search incident to arrest. He contends only that he was illegally stopped under Article I, section 9, of the Oregon Constitution when the officer asked for his name and date of birth, because the officer lacked reasonable suspicion that he was involved in criminal activity, and that "[i]t is that illegality that led to the officers learning of defendant's outstanding arrest warrant, and the arrest and seizure of both defendant's person and the vehicle and contents of the vehicle * * *."³ Defendant relies on State v. Thompkin, 341 Or. 368, 143 P.3d 530 (2006), and State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), for the proposition that asking for identification for the purpose of conducting a warrant check, without reasonable suspicion that a crime has been or is about to be committed, constitutes an illegal restraint on a defendant's liberty and freedom of movement. Defendant further contends that any evidence seized following an unlawful stop of this nature should necessarily be suppressed. The state responds that "(1) simply asking someone for the person's name and date of birth and running a records check, outside the person's presence and without communicating that purpose to them, does not amount to a `stop' or a `seizure;' and (2) even if there had been a prior illegality, the discovery of the outstanding warrant purged any taint."

We need not determine whether defendant was unlawfully stopped by the police officers...