State v. Lora

• Decision Date: 30 June 2021
• Docket Number: A170898
• Citation: 492 P.3d 757,312 Or.App. 666
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Erik Ruben LORA, Defendant-Appellant.

312 Or.App. 666

492 P.3d 757

STATE of Oregon, Plaintiff-Respondent,

v.Erik Ruben LORA, Defendant-Appellant.

A170898

Court of Appeals of Oregon.

Argued and submitted November 23, 2020.

June 30, 2021

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

Defendant appeals a judgment of conviction for one count of unlawful delivery of methamphetamine, ORS 475.890(2). Defendant entered a conditional no contest plea reserving his right to seek appellate review of the trial court's denial of his motion to suppress evidence—viz. , two objects that contained methamphetamine. On appeal, defendant assigns error to that denial, arguing that police unlawfully arrested him when they handcuffed him "without a sufficient officer-safety justification," and that that "unlawful arrest directly resulted in the discovery" of the two objects containing methamphetamine. The state responds that "officer safety concerns justified handcuffing defendant." The state also contends that, in any event, "even if defendant is correct that he was unlawfully arrested when the officers handcuffed him * * * that illegality did not lead to the discovery of the first package of methamphetamine."

For the reasons that follow, we conclude that officer safety concerns did not justify handcuffing defendant. We also reject the state's argument that the unlawful handcuffing defendant did not lead to the discovery of the first package of methamphetamine. Therefore, we reverse and remand.

I. BACKGROUND

"We review the denial of a motion to suppress for legal error and are bound by the trial court's explicit and implicit factual findings if evidence in the record supports them." State v. Bailey , 307 Or. App. 782, 783, 479 P.3d 304 (2020) (internal quotation marks omitted). We state the facts in accordance with that standard.

Medford Police Detective Schwab received information that defendant was transporting a "large amount" of methamphetamine from Bakersfield, California, to Medford, Oregon, and that he would be doing so in a white Honda SUV or minivan. Schwab reviewed defendant's Facebook profile and criminal history. He learned that defendant "had gang ties" and also had been "arrested for gang involvement and firearms."

Around 1:00 a.m., a different officer located a van matching the description of defendant's vehicle and saw it turn without signaling. Several police cars pursued the van and initiated a traffic stop. The van pulled into a parking lot and parked. At least six officers were on scene to assist with the stop, though the precise number of officers is unclear from the record.

One of the officers approached the van and spoke to the driver. The driver admitted that she had no license and that the van was uninsured. She provided a California identification card. The van's windows were tinted.

The van had one passenger in the front seat and two passengers in the back seat, one of whom was lying down and covered by a blanket. Initially, however, it was unclear to the officers how many occupants the van had, and it was difficult to see into the back of the van.

Officers then asked the passengers in the backseat to get out of the van. Defendant and the other passenger in the backseat got out of the van.

When defendant got out of the van, Schwab and another officer, Pierce, observed what Schwab described as a "little pocketknife" on defendant's belt. Schwab took the knife.

Schwab asked defendant if the officers could "search [defendant] for drugs or weapons." Defendant consented.

Pierce then started to "patdown" defendant. While patting down defendant, he felt a "large," "odd," and "hard" object on the front of defendant's waistband. At that time, Pierce had "no idea" what it was and did not ask defendant what it was but could "just tell it was a large foreign object."

Pierce then motioned to Schwab for assistance handcuffing defendant. Schwab helped Pierce handcuff defendant, after which Pierce conducted a "more expansive patdown" and discovered another object in defendant's sleeve, similar to the object in defendant's waistband.

Police later learned that the two objects contained methamphetamine, and defendant was charged with one count of unlawful delivery of methamphetamine, ORS 475.890, and one count of unlawful possession of methamphetamine, ORS 475.894(2)(b).

Defendant moved to suppress the evidence—viz. , the two objects that contained methamphetamine—as the "proceeds of an unlawful warrantless arrest."¹ The state argued, among other points, that officer safety justified the officers’ actions during the stop.

During the hearing on the motion to suppress, Schwab explained that, initially, if defendant "didn't want to consent to any patdown, he would have been able to walk away," because officers "didn't have anything to hold him."

About the conduct of the van's occupants during the traffic stop, Pierce testified that everyone in the van, including defendant, was "pretty cooperative," that police did not face "any form of resistance at all or non-compliance" from any of the van's occupants, and that "no one was even remotely argumentative at any point." Schwab testified that defendant was "very cooperative." Another officer testified that he did not observe any "threatening behavior" or "aggressive language" during the traffic stop.

Nevertheless, during the hearing, Schwab and Pierce identified several features of the traffic stop that raised safety concerns for them prior to handcuffing defendant, including:

• Defendant's prior arrests for "firearms" and defendant's "gang involvement," because people who "carry guns could hurt" police, and "[p]eople involved in gangs don't like the police usually";

• That it was night, because "it's easier for people to conceal things" and "[i]t's harder for us to see what they have in their hands, you know, what's in their vehicle";

• That the van had multiple occupants and tinted windows, and the officers had difficulty seeing the passengers, one of whom was covered by a blanket at the time of the stop; • The possibility that defendant was a "large quantity narcotics dealer"; and

• That defendant had a knife on his belt when he exited the van.²

Additionally, Pierce testified that, although he had "no idea" what the object that he discovered on defendant was during the "patdown," the area it was located—defendant's waistband—was an area commonly used to conceal weapons because it is "the most accessible" and "most concealable" on a person's body.³

After the hearing, the trial court denied defendant's motion to suppress.

Defendant then entered a conditional no contest plea to one count of unlawful delivery of methamphetamine. The trial court entered a judgment of conviction on that count and dismissed the charge of unlawful possession of methamphetamine. Defendant appeals that judgment.

II. ANALYSIS

A. The Officer-Safety Doctrine

On appeal, as noted above, defendant argues that he was unlawfully arrested when Pierce and Schwab handcuffed him "without a sufficient officer-safety justification." The state contends that the trial court correctly denied defendant's motion to suppress because "the officers’ handcuffing of defendant was justified by their objectively reasonable concerns for their safety."

"In order to be lawful under Article I, section 9, a warrantless search or seizure must fall within one of the few established exceptions to the warrant requirement." State v. Goguen , 308 Or. App. 706, 709, 481 P.3d 1011 (2021) (internal quotation marks omitted). In State v. Bates , 304 Or. 519, 524, 747 P.2d 991 (1987), the Supreme Court held:

" Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present."

Under the officer-safety doctrine, "the state bears a two-part burden of proof and persuasion." State v. Ramirez , 305 Or. App. 195, 205, 468 P.3d 1006 (2020). First, the state must prove the subjective component of officer safety. For that, "the state bears the burden of establishing that: (1) based on specific and articulable facts known to the officer, the officer (2) had subjective reasonable suspicion, that (3) the defendant posed an immediate threat, and (4) the threat was of serious physical injury." Id. Second, once the state has met its burden on the subjective component, "it then bears the burden to prove that, under the totality of the circumstances, (1) the officer's subjective safety concerns of an immediate threat of serious physical injury were objectively reasonable, and that (2) the officer's response to the safety concerns was, itself, objectively reasonable." Id.

In this case, defendant does not contend that the officers were not subjectively concerned that defendant presented an immediate threat of serious physical injury. Rather, defendant contends that that concern was not objectively reasonable.

In determining whether officers’ concern for their safety is objectively reasonable, we "examine the totality of the circumstances as they reasonably appeared to the officers at the time." State v. Jackson , 190 Or. App. 194, 199, 78 P.3d 584 (2003), rev. den. , 337 Or. 182, 94 P.3d 877 (2004). "To be objectively reasonable, the officer's safety concerns must be based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the...