State v. Miglavs

• Decision Date: 19 February 2003
• Citation: 186 Or. App. 420,63 P.3d 1202
• Parties: STATE of Oregon, Respondent, v. Daniel Paul MIGLAVS, Appellant.
• Court: Oregon Court of Appeals

63 P.3d 1202

186 Or. App. 420

STATE of Oregon, Respondent, v. Daniel Paul MIGLAVS, Appellant.

C000009CR, C000111CR; A111137 (Control), A111138.

Court of Appeals of Oregon.

Argued and Submitted June 4, 2002.

Resubmitted December 11, 2002.

Decided February 19, 2003.

Garrett A. Richardson, Portland, argued the cause and filed the brief for appellant.

Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges.

Resubmitted En Banc December 11, 2002.

LINDER, J.

In this consolidated appeal, defendant challenges four convictions of unlawful possession of a firearm. ORS 166.250. He assigns error to the denial of his motion to suppress evidence obtained after police conducted a patdown search of him for officer safety reasons and discovered a handgun concealed in his waistband. Defendant also assigns error to the denial of his motion to suppress evidence seized several months later when, relying in part on information discovered in the earlier officer safety search, police obtained a warrant to search defendant and his apartment.¹ We affirm.

On appeal, a trial court's findings of historical fact are binding if they are supported by evidence in the record. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). In this case, the trial court made extensive factual findings, none of which defendant challenges. In describing the pertinent events, therefore, we draw from the trial court's express findings, together with other facts contained in the record and all reasonable inferences favoring the trial court's ruling. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993).

Just after midnight in August 1999, Officer Brown, who was on patrol alone, saw defendant and another man standing outside a car, talking to a woman seated in the car, in the parking lot of an apartment complex in Beaverton. They were below an apartment overhang, which caused the area to be fairly dark. Because Brown suspected that all three individuals were under 18 years of age and possibly violating curfew, she approached the group. On approaching, she saw alcohol in the car. She asked for identification so that she could determine if any alcohol-related or curfew violations may have occurred. Defendant and the woman in the car gave Brown their identification, which she kept while she ran a records check on them. The other male said that he was 17 years old and gave his name and date of birth in lieu of other identification. The dispatcher reported that defendant was a possible runaway, but defendant told the officer that he had recently turned 18. He also told the officer that he lived in the apartment complex, even though his identification listed a different address. He was unwilling to tell the officer in which apartment he resided. Because she was on patrol alone, Brown called for backup while she was checking the ages and identities of the three individuals. Two backup officers arrived within a couple of minutes. By the time they arrived, Brown had determined that the driver of the car was 21 years old and therefore lawfully in possession of alcohol. She also had determined that defendant was 18 years old and therefore not violating curfew. Brown returned defendant's and the driver's identification to them, making no overture to cite or hold them. They were then free to go, but Brown did not expressly tell them that. They remained while Brown continued her investigation of the 17-year-old for a possible curfew violation.

At that point, Brown was concerned for her personal safety and that of the backup officers. Defendant and his male companion were wearing distinctive clothing commonly associated with a gang called the "18th Street" gang. Typical of that gang, defendant had a shaved head and was wearing baggy tan pants and a baggy black shirt with the term "18th Street" printed on the back in large white letters. Defendant's companion also was wearing baggy gang-style clothes and had a three-dot tattoo under his eye that is associated with gang membership. The baggy style of the clothing concerned Brown because, in addition to signaling gang affiliation, the clothing permitted easy concealment of a weapon. Within the preceding year, Brown had come into contact with a similarly attired gang member in the parking lot of the same apartment complex who, on a patdown search, was found to have a weapon concealed in his waistband under his baggy clothing. Also, based on her training and experience more generally, Brown knew that members of the 18th Street gang commonly carry weapons—in particular, guns.

One of the backup officers, Officer Cockreham, shared Brown's safety concerns. His concerns arose because of defendant's 18th Street gang-affiliated clothing, as well as the way in which defendant's shirt was draped over his waist. Cockreham had personally removed weapons from several 18th Street gang members in the same general area (i.e., along Allen Boulevard between Hall and King); one such encounter occurred "just previously to this incident" and the weapon he found on the gang member was a gun. Brown directed Cockreham to patdown defendant for weapons.² On doing so, Cockreham found a gun concealed in the waistband of defendant's pants.

Before trial, defendant moved to suppress the gun seized during the August safety search. Defendant also moved to suppress information obtained during a separate search of his person and residence in December pursuant to a warrant. Defendant's challenge to the December search was related to his challenge to the August safety patdown search. Specifically, the affidavit in support of the warrant relied in part on the fact that, as a result of that patdown search, defendant had been found in possession of a concealed firearm. Defendant argued that, without the information obtained in the August patdown, the warrant was not supported by probable cause.

The trial court concluded that Brown had reasonable suspicion to believe that defendant might be armed because of his appearance as an 18th Street gang member and the gang's reputation. The court observed that, because Brown needed to investigate and issue a citation to defendant's male companion for the curfew violation, "the officer was in a position of continuing her contact with all three of them, since the other two didn't choose to leave, including the defendant." The trial court specifically found:

"I should add to the facts of this, other facts that are significant here are that the defendant's shirt had printed on it `18th Street.' Both officers had previous experience with members of that gang being armed and in that particular area of Beaverton, with people being armed, being stopped with weapons, on more than one occasion in recent times prior to this event.

"I conclude from all this, frankly, it's almost like a neon sign. If you're going to wear a shirt that says `18th Street' in Beaverton, especially on Allen Boulevard, you're telling police officers and others that you're probably armed and dangerous. So from that standpoint, it would be foolish for the officers to conduct any type of an investigation in the presence of these people without at least a minimally intrusive frisk."

The court therefore denied the motion to suppress the evidence of the gun seized in the August search and also denied the related motion to suppress the evidence obtained pursuant to the December search warrant. On appeal, the parties renew the arguments they made below.

A search conducted to ensure a police officer's safety fits within an exception to the warrant requirement "if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present." State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987). To satisfy that standard, an 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 officer's safety. State v. Reinhardt, 140 Or.App. 557, 562-63, 916 P.2d 313 (1996), rev. dismissed, 327 Or. 521, 971 P.2d 408 (1998).

Here, defendant argues that the officers' concerns were not sufficiently particularized and were based instead on stereotypical assumptions about the practices of persons potentially associated with urban gangs. Defendant analogizes this case to those in which we have concluded that police may not rely merely on an individual's "outlaw biker style dress" or otherwise apparent affiliation with a motorcycle gang or club, reasoning that such reliance is too generalized to satisfy the particularity requirement of the standard. See, e.g., State v. Dyer, 157 Or.App. 326, 333 n. 5, 970 P.2d 249 (1998); Reinhardt, 140 Or.App. at 563, 916 P.2d 313. Rather, although a suspect's gang-related attire or affiliation can contribute to reasonable suspicion, it must be accompanied by particularized concerns personal to the suspect, such as the suspect's unusual or disconcerting behavior. See, e.g., State v. Pope, 150 Or.App. 457, 461-62, 946 P.2d 1157 (1997), rev. den., 327 Or. 521, 971 P.2d 408 (1998); State v. Redmond, 114 Or.App. 197, 201, 834 P.2d 516 (1992).

If defendant were correct that the officers in this case were concerned about their safety only because of stereotypical assumptions about gang members generally, defendant's reliance on Dyer and Reinhardt would be well placed. In Reinhardt, for example, officers executed a search warrant at a house in which stolen property was exchanged for methamphetamine. People visiting the house were described as "biker type people." The officers had information that, at some point...