State v. Parker, 0606-47424.

• Decision Date: 11 February 2009
• Docket Number: 0606-47424.,A134163.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Glenn Charles PARKER, Defendant-Appellant.
• Court: Oregon Court of Appeals

202 P.3d 205

225 Or. App. 610

STATE of Oregon, Plaintiff-Respondent, v. Glenn Charles PARKER, Defendant-Appellant.

0606-47424.

A134163.

Court of Appeals of Oregon.

Argued and Submitted on July 31, 2008.

Decided February 11, 2009.

Elizabeth A. Corbridge, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Emily Schoonmaker, Deputy Public Defender, Legal Services Division, Office of Public Defense Services.

Robert M. Atkinson, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General,

and Anna M. Joyce, Assistant Attorney General.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and CARSON, Senior Judge.

HASELTON, P.J.

Defendant appeals from a judgment of conviction for carrying a concealed weapon, ORS 166.240(1), assigning error to the trial court's denial of defendant's motion to suppress evidence. Defendant argues that his consent, and, consequently, the discovery of the evidence, derived from a violation of his right under Article I, section 9, of the Oregon Constitution¹ to be free from unreasonable searches and seizures.² We conclude that the encounter may have been unlawful, depending on facts that neither party developed at trial, and that the encounter did lead to discovery of the evidence. In light of State v. Ashbaugh, 225 Or.App. 16, 200 P.3d 149 (2008), we remand to the trial court for further factfinding.

The trial court expressly found both the police officers' and the defendant's accounts of the facts to be "accurate, and a fair recitation of what occurred." Consistently with that finding, the salient facts here are as follows: On May 23, 2006, defendant was a passenger in a pickup truck stopped by Portland Police Officers Cioeta and Boman for expired license plate tags. Boman asked the driver and the other passenger for their identification and obtained their information. Cioeta asked defendant if he had any outstanding warrants; defendant replied that he did not. Cioeta then asked for defendant's identification, wrote down defendant's information, returned the identification, and then immediately returned to the police vehicle.

The officers ran all the occupants' information and checked them for warrants. In the meantime, at least one additional police vehicle arrived on the scene. Boman then asked the driver and another passenger to get out of the truck. The driver was cited for driving while suspended. Boman conducted a patdown search of the other passenger, informed him he was under arrest for an outstanding warrant, and placed him in custody. Cioeta then approached defendant and asked him to get out of the truck. Cioeta asked defendant if he had any weapons; defendant denied that he did. Cioeta then asked for permission to search defendant, and defendant consented. Cioeta conducted a patdown search of defendant and retrieved a switchblade knife from defendant's pants pocket. Defendant was arrested and subsequently charged with carrying a concealed weapon.

Before trial, defendant moved to suppress the evidence. The trial court denied that motion, concluding that "regardless of anything that happened before, the consent was freely given and was voluntary." Following a stipulated facts trial, the court convicted defendant of carrying a concealed weapon, ORS 166.240(1).

On appeal, defendant assigns error to the trial court's denial of his motion to suppress. Defendant contends that he was unlawfully seized unsupported by reasonable suspicion and that the subsequent inculpatory physical evidence was obtained by exploitation of that unlawful seizure in violation of Article I, section 9. The state's sole response on appeal is that the encounter between defendant and the officer did not constitute a stop. The state argues that Cioeta did not stop defendant when he asked defendant for his identification because the record does not disclose that defendant was aware that he was the subject of an inquiry.

The state does not dispute that, on this record, Cioeta acted without reasonable suspicion or that, under the analysis of State v. Hall, 339 Or. 7, 34-35, 115 P.3d 908 (2005), defendant's consent to the search was sufficiently causally related to the officer's conduct that the former was the "exploited" product of the latter. See id. (after a defendant presents a minimal factual nexus between a defendant's consent to search and a prior, unlawful seizure, the state has the burden to prove that such consent was independent of, or only tenuously related to, the prior unlawful seizure).

The sole issue on appeal thus reduces to whether the encounter between defendant and the officers constituted a seizure under Article I, section 9. In State v. Holmes, 311 Or 400, 409-10, 813 P.2d 28 (1991), the Supreme Court held that a person is "seized" for purposes of Article I, section 9, and therefore stopped,

"(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) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances."

In Ashbaugh, we explained the distinction between a Holmes type (a) and type (b) inquiry:

"The court determines whether a stop of the first type—type (a)—has occurred without reference to the subjective belief of the defendant; the only relevant state of mind is the officer's. A type (b) inquiry examines the defendant's subjective belief and then, if the necessary belief is found, evaluates its reasonableness. State v. Toevs, 327 Or. 525, 535, 964 P.2d 1007 (1998)."

225 Or.App. at 23, 200 P.3d 149.

Consistently with the analysis recently announced in Ashbaugh, see id. at 23-24, 200 P.3d 149 (applying a Holmes type (b) inquiry), whether the encounter between the officer and defendant rises to the level of a Holmes type (b) stop is determined by the methodology in Toevs:

"The court in Holmes held that a `seizure,' which includes a stop, occurs under Article I, section 9, whenever a person subjectively believes that a law enforcement officer significantly has restricted or interfered with that person's liberty or freedom of movement and such a belief is objectively reasonable under the circumstances."

Ashbaugh, 225 Or.App. at 24, 200 P.3d 149 (quoting Toevs, 327 Or. at 535, 964 P.2d 1007) (emphasis in Toevs).

Thus, a Holmes type (b) inquiry implicates conjunctive subjective and objective components—viz., the defendant subjectively believed that he or she was significantly restrained and that belief was objectively reasonable. Consequently, as the party bearing the burden of demonstrating the lawfulness of the search, the state can prevail against a Holmes type (b)-based motion to suppress if it disproves either of those conjunctive components. That is, the state can prevail either (1) by proving that the defendant did not believe that the officer had significantly restrained or interfered with the defendant's freedom of movement or (2) if such a belief would not be objectively reasonable. Id. at 24, 200 P.3d 149. In assessing whether "such a belief is objectively reasonable under the circumstances," the operative inquiry is whether "`a reasonable person in defendant's position could have believed that the officers significantly had restricted [his or her] liberty or freedom of movement.'" Id. at 25, 200 P.3d 149 (quoting Toevs, 327 Or. at 535-36, 964 P.2d 1007) (first emphasis in Toevs; second emphasis in Ashbaugh).

We begin with the objective component because—for reasons that will become apparent shortly—if the state were to prevail on that component, that would obviate the need for a remand. We conclude for the following reasons that, in the totality of the circumstances in this case, "a reasonable person in defendant's position could have believed" that he was not free to go. Toevs, 327 Or. at 536, 964 P.2d 1007. In that regard, we emphasize that the controlling inquiry is not whether every reasonable person would have so believed, but, instead, whether a reasonable person could have so believed. Cf. Ashbaugh, 225 Or.App. at 31-32, 200 P.3d 149 (Brewer, C. J., concurring).

In Hall, the Supreme Court determined that a police-citizen encounter is a stop if the encounter could cause a person reasonably to believe that he or she was the subject of a criminal investigation and, for that reason, that his or her liberty of movement has been significantly restricted. 339 Or. at 17-19, 115 P.3d 908. Since Hall, "we have repeatedly held that, when a police officer obtains a person's identification and uses it to check for outstanding warrants or probation violations, the person has been stopped." Ashbaugh, 225 Or.App. at 27, 200 P.3d 149.

The circumstances in State v. Highley, 219 Or.App. 100, 180 P.3d 1230 (2008), are most...