State v. Nelson

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Audrey Denise NELSON, Defendant-Appellant.
• Citation: 294 Or.App. 793,433 P.3d 370
• Docket Number: A159202
• Court: Oregon Court of Appeals
• Decision Date: 15 November 2018

294 Or.App. 793

433 P.3d 370

STATE of Oregon, Plaintiff-Respondent,

v.Audrey Denise NELSON, Defendant-Appellant.

A159202

Court of Appeals of Oregon.

Argued and submitted January 19, 2017.

November 15, 2018

Sarah De La Cruz, Deputy Public Defender, argued the cause for appellant. Also on the brief 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 Ortega, Presiding Judge, and Egan, Chief Judge, and Allen, Judge pro tempore.

EGAN, C. J.

Defendant appeals her conviction for unlawful possession of methamphetamine, ORS 475.894,¹ arguing that the trial court erred in denying her motion to suppress. Defendant contends that the officer unlawfully stopped her when he told her that he believed that she was under the influence of methamphetamine, asked her if she possessed illegal drugs, and told her "[i]t would be easy to prove me wrong, you know, * * * [b]y showing me that your purse doesn’t contain drugs." We agree and, consequently, reverse and remand.

We review a trial court’s denial of a motion to suppress for legal error. State v. Rodriguez-Perez , 262 Or.App. 206, 208, 325 P.3d 39 (2014). We are bound by the trial court’s findings of fact so long as there is sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). The following facts reflect that standard of review.

On an October night, around 9:00 p.m., Deputy Lillie was patrolling the small city of Lakeside and saw defendant walking on a sidewalk. Lillie noticed that defendant’s body movements were irregular, in that she walked with "jerky * * * kind of spastic type movements." Defendant walked with a cane, but Lillie thought her movements were "something beyond" what could normally be attributed to walking with a cane. Lillie believed that defendant might be under the influence of methamphetamine.

Without activating his lights or using his PA system, Lillie pulled over and parked his marked patrol vehicle in a parking space abutting the sidewalk. Lillie got out of his vehicle, approached defendant from the side, and initiated a conversation about local fall festivities. Lillie observed that defendant’s speech was very fast, her mouth appeared dry, her lips were chapped, and her eyes were dilated—all things that Lillie knew, from his training and experience, were signs of stimulant usage. Lillie told defendant that he "was observing these certain signs" and that based on his knowledge, he "believed that she was under the influence of methamphetamine." He then asked her if she had any illegal drugs on her person. Defendant, taken aback, said, "I don’t appreciate you insinuating that I have drugs on me." Lillie responded, "It would be easy to prove me wrong, you know, * * * [b]y showing me that your purse doesn’t contain drugs."

Defendant admitted that she had a marijuana joint in her purse, and stated that she did not have a medical marijuana card.² Defendant told Lillie that he could look through the top of her purse for the joint. When he did, Lillie saw a tissue darkened with soot sticking out of a hard glasses case. From his training and experience, Lillie believed that the case contained a pipe for smoking methamphetamine. He asked defendant what was in the case, and defendant told him that it was a marijuana pipe. Lillie told defendant she could not keep the pipe. Defendant said, "Yep, I understand," and told Lillie that he could take the case. Lillie did so, and found a pipe inside the case that subsequently tested positive for methamphetamine.

The state charged defendant with unlawful possession of methamphetamine. Defendant moved to suppress all evidence that Lillie seized as a product of the encounter, arguing that Lillie lacked reasonable suspicion to justify a stop under Article I, section 9, of the Oregon Constitution. That is, defendant argued that Lillie stopped her when he accused her of using drugs, and that because Lillie lacked reasonable suspicion that defendant was in possession of illegal drugs, the stop was unlawful. Defendant and Lillie both testified at the hearing on the motion to suppress.

The trial court denied the motion to suppress, concluding that Lillie did not stop defendant until after she consented to the search of her purse. The court explained, "[Lillie] parked his car and [defendant] stopped and looked at him and they began a conversation. * * * And, when he told her about his suspicions she might have been taken aback by that, but she allowed him to glance in her purse." After the suppression hearing, defendant waived her right to a jury trial. The parties stipulated that the trial court could consider Lillie’s testimony and a lab report stating that the pipe contained methamphetamine, and the court found her guilty of the possession charge.

On appeal, defendant renews her argument that the trial court erred in denying her motion to suppress. Defendant contends that Lillie stopped defendant when he confronted her with his belief and observations that she was under the influence of methamphetamine, asked her if she possessed any illegal substances, and told her that she could easily prove him wrong by consenting to a search of her purse. Because Lillie lacked reasonable suspicion that defendant possessed methamphetamine at that point, defendant argues that the stop was unlawful, and that the results should therefore be suppressed. The state responds that, under the totality of the circumstances, the interaction between Lillie and defendant did not implicate Article I, section 9, until after defendant consented to the search of her purse. The state does not dispute defendant’s contentions that, if defendant was seized before that point, (1) Lillie acted without reasonable suspicion and (2) the evidence sought to be suppressed was the unattenuated product of that alleged unlawful seizure. Thus, our review turns on whether Lillie stopped defendant before or after defendant’s consent.

Article I, section 9, protects individuals against unreasonable searches and seizures. A stop is "a type of seizure that involves a temporary restraint on a person’s liberty and that violates Article I, section 9, unless justified by, for example, * * * reasonable suspicion that the person has been involved in criminal activity[.]" State v. Ashbaugh , 349 Or. 297, 308-09, 244 P.3d 360 (2010). However, not every encounter between law enforcement and a citizen constitutes a stop. State v. Newton , 286 Or.App. 274, 279, 398 P.3d 390 (2017). Police 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." State v. Backstrand , 354 Or. 392, 400, 313 P.3d 1084 (2013).

Whether a particular encounter constitutes a stop is "fact-specific and requires an examination of the totality of the circumstances involved[,]" and we consider all of an officer’s actions "as a whole greater than the sum of its parts." Newton , 286 Or.App. at 280, 286, 398 P.3d 390. At the very least, to effect a stop, "some exercise of coercive authority by the officer" is required. Id. at 281, 398 P.3d 390. The officer must explicitly or implicitly "convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs." Backstrand , 354 Or. at 401, 313 P.3d 1084. If, by "the content of the questions, the manner of asking them, or other actions that police take (along with the circumstances in which they take them)" a reasonable person would understand that an officer is exercising their authority to detain, the encounter rises to the level of a stop. Id. at 412, 313 P.3d 1084.

We have held that "[a]n officer stops a person when he or she communicates that he or she is conducting an investigation that could result in the person’s citation or arrest at that time and place." State v. Jackson , 268 Or.App. 139, 145, 342 P.3d 119 (2014) (internal quotations omitted). Thus, when an officer "makes a direct and unambiguous accusation" that an individual has committed a violation or crime, the officer has stopped that individual. Id. at 149, 342 P.3d 119. An individual is not stopped, however, when an officer "make[s] statements conveying possible suspicion." Id. Nor is an individual stopped when an officer makes only "an inquiry about criminal activity." State v. Allen , 224 Or.App. 524, 531, 198 P.3d 466 (2008) (emphasis in original). As is true for the entire analysis of the continuum between "mere conversations" and stops, this distinction "does not lend itself to easy demarcation." See Backstrand , 354 Or. at 399, 313 P.3d 1084 ; see also State v. Wiener , 254...