State v. Najar

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: FLYNN, J. pro tempore
• Citation: State v. Najar, 287 Or App 98, 401 P.3d 1205 (Or. App. 2017)
• Decision Date: 26 July 2017
• Docket Number: A156660.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Claudio Castillo NAJAR, aka Claudio Najar-Castillo, Defendant-Appellant.

287 Or.App. 98

401 P.3d 1205

STATE of Oregon, Plaintiff-Respondent,

v.Claudio Castillo NAJAR, aka Claudio Najar-Castillo, Defendant-Appellant.

A156660.

Court of Appeals of Oregon.

Submitted September 29, 2015.

July 26, 2017

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and Lagesen, Judge, and Flynn, Judge pro tempore.

FLYNN, J. pro temporeDefendant challenges the trial court's denial of his motion to suppress evidence that officers discovered after defendant consented to the inspection of a container that officers found during a "pat down" search. The trial court concluded that defendant was seized at the time of the search and that the seizure was authorized by officer safety concerns, rejecting defendant's argument that he was seized much earlier during the encounter and that the state failed to prove any lawful basis for the earlier seizure. Defendant argues that he was seized when, during the course of a conversation between the officer and defendant, who was sitting in a parked car, the officer asked to see defendant's license and then told defendant to reach for his wallet with only one hand. We have repeatedly held that similar directions to a citizen amounted to a seizure, and we conclude that defendant was, likewise, seized when the officer directed how defendant should move his hands to reach for his wallet. The state urges us to affirm the trial court on the alternative bases that the earlier seizure was also authorized by officer safety concerns or that defendant's ultimate consent was sufficiently attenuated from any illegality that the evidence should not be suppressed. However, neither argument was raised or addressed below, and the criteria for affirming a trial court on an alternative basis are not satisfied. Accordingly, we reverse and remand.

We review the denial of defendant's motion to suppress for legal error and, in doing so, "we are bound by the trial court's factual findings if there is any constitutionally sufficient evidence in the record to support them." State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017). To the extent that the trial court did not make express findings regarding disputed facts, we will presume that the court found the facts in a manner consistent with its ultimate conclusion, provided that the evidence would support such findings. Id. at 166, 389 P.3d 1121. We describe the facts in a manner consistent with that standard of review.

I. BACKGROUND

A. Historical Facts

Sheriff's deputies Hagan and Remmy were driving in a marked patrol car through an area with "a lot of stolen vehicles and cars that are broken into" when they noticed a car parked on the side of the road with the passenger door ajar. Hagan "thought it was a little unusual" because he had "found cars in that state before and they've been broken into." At the time, the sun was still rising and it was a "little bit foggy," so Hagan "couldn't quite see into it to know one way or the other if anybody was inside."

The deputies turned around, parked in front of the car, but on the opposite side of the street, and approached the car from both sides. Using flashlights to look inside the car, they saw two people—defendant in the driver's seat, with the keys in the ignition, and a woman in the passenger seat. Hagan knocked on the driver's side window, and defendant rolled it down. Hagan asked defendant what they were doing there and defendant responded, "Just talking. We sit here all the time."

Hagan then asked if defendant had his license and defendant replied, "I don't know" but began to reach toward his side. Defendant "touched * * * his right hand to the waist on his jeans" and then reached in a "fluid motion" toward the center console under the stereo with both hands. Hagan thought that defendant's movements were "kind of unusual." Hagan had an "immediate concern" when defendant touched his waistband because that is the most common area that he finds weapons on people who are carrying weapons. As a result of those concerns, Hagan "asked [defendant] to keep his hands where [Hagan] could see them." When defendant explained that his wallet was in the console area, Hagan "told him he could reach for it with one hand and he did do that." Hagan was not "yelling at [defendant] or anything like that at that point."

Defendant retrieved his wallet and gave Hagan a work ID, saying that he must have left his license at home. As their discussion continued, defendant reached twice more toward the right side of his waistband, which caused Hagan to be concerned that defendant "might have been trying to hide a weapon or access a weapon." When defendant refused to consent to let Hagan search him for weapons, Hagan opened the car door and, ultimately, forcefully removed defendant from the car and placed him in handcuffs. Hagan then patted down the outside of defendant's clothing and found a pocket knife clipped to defendant's belt loop on the right side as well as two small objects in defendant's right pants pocket. Hagan asked if defendant "had anything illegal" in his pocket and defendant replied, "Yeah, you can take it out." Hagan then pulled out a small container, and defendant volunteered, "There's some crystal inside."¹

B. Procedural Background

The state charged defendant with one count of unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant filed a motion to suppress. He argued that he was seized when Hagan told him how to use his hands to retrieve his identification. Defendant argued that the seizure at that point was not authorized by any exception to the warrant requirement and that all evidence obtained after Hagan unlawfully seized defendant should be suppressed "because defendant's subsequent consent to the search of his person and incriminating statements were the product of the preceding unlawful police conduct." The trial court ruled that defendant was not seized until later in the encounter and that the seizure was authorized by officer safety concerns, based on defendant repeatedly reaching toward his waistband even after being told not to do so. The trial court, thus, denied defendant's motion to suppress, and defendant was later convicted of unlawful possession of methamphetamine after a stipulated facts trial.

II. DISCUSSION

On appeal, defendant again argues that he was seized when Hagan directed him to use his hands in a specific way to retrieve his identification, that the seizure was not authorized by the officer safety doctrine,² and that subsequent evidence and admissions must be suppressed. As set out above, the state urges us to affirm the trial court's conclusion that defendant was not seized at the point that he identifies, but also argues that, if defendant was seized at that point, we should affirm on either of two bases that the trial court did not address—that the officer safety doctrine authorized the seizure or that suppression is unnecessary because Hagan "did not use any information gained from any seizure to obtain defendant's consent to search his pocket containing methamphetamine." We conclude that defendant was seized when Hagan directed him to use his hands in a specific way to retrieve his identification and that the record does not permit us to resolve this case on either of the alternative bases identified by the state.

A. Seizure Under Article I, Section 9

For purposes of Article I, section 9, of the Oregon Constitution, which protects citizens from unreasonable searches and seizures, a "seizure" occurs "(a) if 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 (b) if 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) (emphasis omitted). Because there are a variety of police-citizen encounters, only some of which constitute a seizure for purposes of Article I, section 9, the determination of whether a person has been seized "necessarily is fact-specific and requires an examination of the totality of the circumstances involved." State v. Backstrand , 354 Or. 392, 399, 313 P.3d 1084 (2013).

Backstrand emphasizes the fundamental proposition that "the constitutional concern is with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens." Id. at 400, 313 P.3d 1084. Thus, officers are "free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful." Id. (internal quotation marks omitted). An officer may also request a person's identification and retain the identification long enough to check its validity without those actions, in and of themselves, creating a coercive restraint on the person's liberty. Id. at 412-13, 313 P.3d 1084. That is because "the fact that an individual * * * feels obliged to cooperate with the officer simply because of the officer's status is not the form or source of coercion that is of constitutional concern." Id. at 402, 313 P.3d 1084.

However, an encounter that involves "something more" than just a person with officer status "asking a question, requesting information, or seeking an individual's cooperation" can become a seizure if "added factors would reasonably be construed as a ‘threatening or coercive’ show of authority requiring compliance with the officer's request." Id. at 403, 313 P.3d 1084. A " ‘show of authority’ can be inferred from ‘the content of the...