State v. Mitchele

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Mark William MITCHELE, aka Mark William Mitschele, Defendant–Appellant.
• Citation: 240 Or.App. 86,251 P.3d 760
• Docket Number: 080230693; A138931.
• Court: Oregon Court of Appeals
• Decision Date: 29 December 2010

240 Or.App. 86

251 P.3d 760

STATE of Oregon, Plaintiff–Respondent,

v.Mark William MITCHELE, aka Mark William Mitschele, Defendant–Appellant.

080230693; A138931.

Court of Appeals of Oregon.

Argued and Submitted Jan. 28, 2010.Decided Dec. 29, 2010.

Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.Linda Wicks, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.ARMSTRONG, J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence found on his person, contending that the arresting officers unlawfully stopped him without reasonable suspicion, which led to the discovery of methamphetamine in his pocket.¹ We affirm.

We review the denial of a motion to suppress for legal error and defer to the trial court's findings of historical fact if there is sufficient evidence to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). Consistently with that standard, we take the following facts from the record of the suppression hearing. Portland Police Officer Slyter and his partner received a radio call around 11:00 a.m. regarding a suspicious person in a neighborhood in southeast Portland that is prone to criminal activity, specifically car prowls, car thefts, and burglaries. Although the caller, who was a resident of the neighborhood, was relaying information second-hand from his wife, he gave his name, address, and telephone number to the officers and told them that there was a “guy possibly casing, walking up and down [the] street, [and] looking at homes[.]” The caller further described the suspicious person as a white male who was wearing a black and red stocking hat, a black jacket, and black sweat pants. Slyter and his partner arrived at the scene about 20 minutes after receiving the call.

There is a public pathway in the neighborhood that connects a street to the Springwater Trail, a public walking and bicycling trail that abuts many houses in the neighborhood and that has been a significant problem due to its use as an escape route by people who have committed crimes in the neighborhood. Slyter and his partner found defendant, a white male, on the pathway, wearing black pants, a black shirt or jacket, and a stocking hat. As the officers drove toward defendant, Slyter saw defendant “tuck” himself into nearby foliage, which, according to Slyter, “would definitely cause one to [have to] look harder to recognize [that] somebody was standing in there.”

The officers got out of their patrol car, and Slyter asked defendant if he would walk back up the path to the car, about 15 feet away, and talk with them. Defendant did so, and the officers asked him why he was in the area. Defendant responded that he was waiting for a friend who was walking to meet him. Slyter then asked defendant if he was on probation or parole or had any outstanding warrants. Defendant said that he was on probation and told Slyter the name of his probation officer, who Slyter then called to determine whether defendant was in compliance with the terms of his probation. While Slyter was calling the probation officer, Slyter's partner told him that defendant had refused to consent to a search of his person. Slyter told the probation officer the address that defendant had given as his residence and also that defendant had refused to consent to a search. The probation officer indicated that the address was not the residential address on record in defendant's probation file. Defendant's probation officer told Slyter to again ask defendant for consent to search his person and that, if defendant refused, the probation officer would place a detainer on defendant for violating the terms of his probation by failing to report an address change. Defendant refused the search request, and Slyter arrested him on the detainer. Slyter then conducted an inventory of defendant's belongings before transporting him and found methamphetamine in his pockets.

Based on the discovery of the methamphetamine, defendant was charged with unlawful possession of methamphetamine. ORS 475.894. Before trial, defendant moved to suppress all evidence obtained during the inventory, arguing that the evidence was the product of an unlawful stop of him in violation of ORS 131.615 and of the state and federal constitutions. At the suppression hearing, Slyter testified about the events leading to defendant's arrest and the subsequent inventory.

The trial court determined that defendant reasonably believed that he was not free to leave and, therefore, was stopped, when Slyter asked defendant to walk back to the car and speak with the officers. The court further determined that

“the information available to [Slyter], both in the context of the radio call * * * and what he saw when he got to the scene, which is to say he saw a person that * * * he reasonably believed to be the same person that he had the radio call about[,] * * * [a]nd the behavior of the person, in terms of backing away * * * from the presence of the police, were sufficient to give [Slyter] subjective and objective * * * reasonable suspicion that there was criminal activity[.]”

From that premise, the court concluded that the inventory was lawful.

Accordingly, the court denied the suppression motion. Following a stipulated facts trial, defendant was convicted of the possession offense.

On appeal, defendant assigns error to the denial of his suppression motion, renewing his state statutory and constitutional arguments. He contends that he was stopped at the beginning of his encounter with Slyter and that the informant's tip and his furtive movements did not establish reasonable suspicion justifying the stop. Specifically, defendant argues that the informant's tip was not reliable and, even if it was, that it did not disclose criminal activity, and that his furtive movements alone did not justify the stop. Although the state concedes that defendant was stopped at the beginning of the encounter, it responds that the totality of the circumstances provided sufficient specific and articulable facts to support the officers' reasonable suspicion that defendant was engaged in criminal activity, viz., casing homes for potential burglary, and, therefore, that defendant was lawfully stopped. We agree with the state.

The critical question in this case is whether the officers had reasonable suspicion to stop defendant. An officer's stop of a person must be justified by reasonable suspicion of criminal activity. The standard has subjective and objective components. An officer must subjectively suspect that the person stopped is involved in criminal activity. State v. Hammonds/Deshler, 155 Or.App. 622, 626, 964 P.2d 1094 1998). Here, Slyter testified that he suspected that defendant was engaged in criminal activity. Reasonable suspicion is established when an officer forms an objectively reasonable belief under the totality of the circumstances that a person may have committed or may be about to commit a crime. ORS 131.605(5); ORS 131.615(1). An officer must identify specific and articulable facts that produce a reasonable suspicion, based on the officer's experience, that criminal activity is afoot. See Ehly, 317 Or. at 80, 854 P.2d 421 (discussing the statutory standard for stopping a person suspected of criminal activity). Therefore, to determine whether Slyter and his partner had reasonable suspicion to stop defendant, our analysis focuses on whether the specific and articulable facts in this case—the report from the informant, defendant's furtive movements, and defendant's presence on a common escape route in a high-crime area—are sufficient to support a reasonable suspicion that defendant was committing or about to commit a crime.

A reliable report from a citizen informant that criminal activity is imminent may be sufficient on its own to provide the required specific and articulable facts. State v. Goss, 219 Or.App. 645, 650, 184 P.3d 1155, rev. den., 345 Or. 94, 189 P.3d 749 (2008). Three factors guide our determination of the reliability of such a report. State v. Hames, 223 Or.App. 624, 629, 196 P.3d 88 (2008). The first factor is whether, if the report is false, the informant may be subject to potential criminal prosecution and civil liability. As pertinent to this case, that factor is satisfied if the informant gives his or her name to law enforcement authorities. The second factor is whether the report is based on the personal observations of the informant, which may be inferred by an officer if the information in the report contains sufficient detail to show that it was not fabricated and the report may be recognized through common experience as having been reliably obtained. Finally, we consider whether the officer's observations corroborate the information provided by the informant, which may occur when the officer observes the illegal activity or finds the person, vehicle, or location substantially as the informant described. Id.

Here, the first factor was satisfied because Slyter and his partner had the name, address, and telephone number of the caller who had described defendant's appearance and suspicious activities in the neighborhood. Also, the third factor was satisfied when the...