State v. Moats, 200924661B; A145982.
| Decision Date | 08 August 2012 |
| Docket Number | 200924661B; A145982. |
| Citation | 251 Or.App. 568,284 P.3d 568 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Darrel Edward MOATS, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Peter Gartlan, Chief Defender, and Ernest G. Lannet, Chief Deputy Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and BREWER, Judge, and SERCOMBE, Judge.
Defendant appeals from convictions for drug-related offenses based on evidence that officers discovered when they searched the parked vehicle that defendant had been driving after having questioned defendant and another person present in the vehicle. Defendant argues that the police officers' questioning that led to the discovery of that evidence was the result of an illegal stop and, for that reason, the trial court erred in denying his motion to suppress. We are therefore called on to determine when the interaction between the arresting officers and defendant became a constitutionally significant seizure and whether, at that point, the police officer had reasonable suspicion of criminal activity. We affirm.
We state the facts consistently with the trial court's findings of historical fact, which are supported by evidence in the record. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). On the evening of September 2, 2009, at approximately 8:00 p.m., members of the Vice and Narcotics Unit of the Eugene Police Department were looking for signs of drug activity in the parking lot at a small shopping center that they knew to have a significant level of drug trafficking. It was dark outside, but there were low-light parking lights throughout the lot. The property owner had previously filed a “no trespassing letter” with the city, which gave the police permission to tell people loitering in the lot that they would be arrested for trespassing if they were not patronizing the area businesses. Officers staking out the lot generally would approach people loitering in the lot to inform them of the no trespassing letter. They would then fill out a field interview card to record the person's name, address, phone number, and vehicle description, and tell them that “in the future if they are there not conducting any legal business remaining on the property then they could face trespassing charges.”
Officers Newell and Lowe and two other officers were staking out the parking lot in unmarked cars, wearing plain clothes. Newell noticed a car driven by a woman arrive in the lot and park near a closed coffee kiosk. The woman who had been driving, Bennett, did not get out of her car but sat there observing the parking lot entrances for approximately five minutes, until defendant drove his taxi into the lot and parked next to Bennett's vehicle. Bennett then left her car, looked around, and got into the front passenger seat of defendant's vehicle. Defendant and Bennett greeted each other with a hug, and Bennett kissed defendant on the cheek. The two then appeared to be handling or exchanging items between them. Although Newell could not see the items, he saw arm and shoulder movements that indicated an exchange. Newell then suggested to Lowe that they “make contact” with the occupants of defendant's cab. The two officers approached defendant's vehicle on foot. Newell knocked on the passenger side window to talk to Bennett, while Lowe knocked on the driver's side window to talk to defendant. Both men identified themselves as police officers and showed their badges.
Newell explained to Bennett—in a calm and casual tone—that their conduct seemed suspicious, and he told her that using the lot without patronizing one of the nearby businesses was trespassing. Newell noticed that the knuckles on Bennett's hand were white and splotchy, as if she was clenching something in her fist. He asked Bennett if she had any drugs, which she denied, and then asked her what she had in her hand. Bennett was startled, and dropped four items, pretending that she had had nothing in her hand. Newell recognized the items as bindles of drugs and asked Bennett to step out of the cab. When he saw what had happened between Newell and Bennett, Lowe asked defendant to get out of the cab as well. Both defendant and Bennett then made incriminating statements. In addition, later examination revealed that the bindles did, indeed, contain drugs.
Based on several findings and conclusions that it made, the trial court denied defendant's motion to suppress that incriminating evidence. First, the court concluded that a stop had occurred, at the latest, when Newell saw the bindles that Bennett dropped. Second, the court concluded that, regardless of when the stop occurred, the officers had reasonable suspicion concerning Bennett's conduct when she entered defendant's cab. According to the court, that suspicion was based on the totality of circumstances, including the reputation of the parking lot for drug activity, the fact that Bennett had parked and waited several minutes before getting into the front seat of defendant's cab, and the ensuing furtive movements inside the cab that indicated an exchange.
After addressing the issue of reasonable suspicion, the court found that the officers conducted themselves in a “civil non[-]confrontational [and non-] coercive manner.” “There was no indication that they were coercive or * * * used some expression of excessive authority to prevent the * * * or limit the liberties of the * * * the [d]efendant and the passenger.” The court noted that, in recent years, Oregon's appellate courts “have expressed a different appreciation for the appropriateness of casual conduct, even as identified as detectives or police officers, such that simply the identification of themselves as law enforcement does not rise to the level of a seizure or a stop.” In making those findings, the court appeared to return to the question of whether the officers' conduct had effected a stop before Newell observed the bindles. After the trial court denied his motion to suppress, defendant waived his right to a jury trial and proceeded by a stipulated facts trial to the court. The court found defendant guilty as charged. On appeal, defendant assigns error to the court's denial of his motion to suppress.
We review a trial court's ruling on a motion to suppress for errors of law, deferring to the trial court's explicit and implicit factual findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We first determine when the interaction between the arresting officers and defendant became a constitutionally significant seizure. A seizure of a person occurs under Article I, section 9, of the Oregon Constitution if (a) a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or if (b) a reasonable person under the totality of the circumstances would believe that (a) above has occurred.State v. Ashbaugh, 349 Or. 297, 316, 244 P.3d 360 (2010). Under that test, the lodestar for determining whether an officer has seized a defendant is whether the officer restricted the defendant's liberty or freedom of movement by a show of authority, State v. Rodgers/Kirkeby, 347 Or. 610, 621–22, 227 P.3d 695 (2010), which may be established through, among other circumstances, the content of the officer's questions to the defendant or the officer's manner or actions during the encounter. State v. Levias, 242 Or.App. 264, 266–67, 255 P.3d 611 (2011). Moreover, a reasonable person would believe that an officer's actions amounted to such a show of authority “if the person knew that he or she was the subject of a criminal investigation.” State v. Radtke, 242 Or.App. 234, 239, 255 P.3d 543 (2011).
In Ashbaugh, two police officers approached the defendant and her husband in a public park, took their identifications, and ran a warrant check on both of them. The warrant check revealed an active restraining order between the defendant and her husband, which led the officers to arrest the husband for violating the order. Then, after returning the defendant's identification to her and leaving her alone for about five minutes to place her husband in a police car, the officers returned to the defendant's location and, eventually, asked her for consent to search her purse. The defendant consented, and an officer discovered methamphetamine in the purse.
In determining whether the defendant had been seized before the search of her purse...
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State v. Acuna
...not “seize” the defendant by asking whether she had anything illegal in her purse and for consent to search it). State v. Moats, 251 Or.App. 568, 575, 284 P.3d 568 (2012) (holding that “questions from a police officer to a citizen—even questions an ordinary citizen would regard as offensive......
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State v. Brown
...citation.In arguing for affirmance of the trial court's denial of defendant's motion to suppress, the state relies on State v. Moats , 251 Or. App. 568, 284 P.3d 568 (2012). In that case, the defendant and a passenger were sitting in a parked car in a shopping center parking lot. Id. at 570......
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...person to believe that the police officer was exercising his authority to coercively detain the person. See State v. Moats , 251 Or. App. 568, 574-75, 284 P.3d 568 (2012) (concluding that officer did not stop defendant by approaching his parked car and stating his concern that defendant mig......
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