State v. Radtke

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Stacy Quinn RADTKE, Defendant-Appellant.
• Citation: 230 Or. App. 686,217 P.3d 220
• Docket Number: A136543.,06C49184.
• Court: Oregon Court of Appeals
• Decision Date: 09 September 2009

217 P.3d 220

230 Or. App. 686

STATE of Oregon, Plaintiff-Respondent, v. Stacy Quinn RADTKE, Defendant-Appellant.

06C49184.

A136543.

Court of Appeals of Oregon.

Argued and submitted on April 13, 2009.

Decided September 9, 2009.

Ryan O'Connor, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Travis Eiva, Deputy Public Defender, Legal Services Division, Office of Public Defense Services.

Samuel A. Kubernick, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

SCHUMAN, J.

Defendant was convicted of unlawful possession of methamphetamine. ORS 475.894. On appeal, she assigns error to the trial court's denial of her motion to suppress evidence that, she argues, derived from an unlawful stop in violation of her rights under Article I, section 9, of the Oregon Constitution.¹ The state, in response, argues that defendant's encounter with the officer did not become a stop, and therefore a seizure for purposes of triggering constitutional protection, until after the officer had developed reasonable suspicion that defendant possessed a controlled substance, at which point the stop was, for that reason, lawful. We vacate the judgment and remand.

The undisputed facts are as follows. Marion County Sheriff's Deputy Hickam was on a drug saturation patrol in Salem when he saw a man riding a bicycle toward a restaurant. Hickam recognized the man and approached him in the restaurant parking lot. The man told Hickam that he had come to the restaurant to meet a "lady friend" named Stacy. The man consented to a search. Hickam found methamphetamine in the man's backpack, whereupon he arrested him and put him in the back seat of the patrol car.

Hickam was standing at the open back door of the patrol car and talking to the man when defendant rode her bicycle into the parking lot and approached the entrance to the restaurant, approximately 20 feet from the patrol car. Hickam recognized her as "Stacy," the person whom the arrested man intended to meet. Hickam asked her, "Hey, can I talk to you for a second?" and motioned with his hand for her to "come over to talk." He used a normal tone of voice and did not physically interfere with defendant or impede her movement. Defendant stopped her bicycle and "kind of stood with her bicycle in her hands and looked back towards [Hickam] and said, `What's going on?'" She then "kind of walked her bike to the front of [the] patrol vehicle." Hickam walked up to meet defendant.

Based on defendant's bloodshot, glassy eyes and dilated pupils, Hickam believed that she was under the influence of a stimulant. He did not, however, believe the influence of the stimulant was sufficient to justify a further investigation, nor did he believe that she had committed any other crime. Nonetheless, he asked defendant if "she had an ID on her that [he] could take a look at." Defendant told him her name and date of birth, which Hickam wrote down. He then asked defendant if she had "any drugs, weapons, [or] anything illegal on her." When defendant said that she did not, Hickam asked if he "could check her person and pockets for any drugs." Defendant replied, "I don't want you touching me, but I will show you." She began to show Hickam the contents of her pockets. In the process, she attempted to extract and conceal a plastic baggie containing a white substance. Hickam saw it and believed that it was methamphetamine. He then took defendant's wrist, and the baggie fell from her hand. Hickam arrested defendant. The substance was later determined to be methamphetamine.

Defendant filed a motion to suppress the evidence, contending that Hickam, by his own testimony, did not have reasonable suspicion of criminal activity until he saw the baggie and that his interaction with her before that time amounted to a stop. The court denied her motion, and she was subsequently tried on stipulated facts and convicted of possession of methamphetamine.

On appeal, ORS 138.040(1)(a), defendant assigns error to the trial court's denial of her motion to suppress, renewing the argument that she made to the trial court. The state, in response, argues that Hickam's actions were not sufficient to transform a "mere conversation" into a stop until he grabbed her hand after seeing the baggie. We review the trial court's denial of defendant's pretrial motion to suppress for errors of law, accepting as true all express or implied findings of fact for which constitutionally sufficient evidence exists. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). For the reasons that follow, we agree with defendant that Hickam unlawfully stopped her.

Not every encounter between law enforcement officers and citizens constitutes a "seizure" of the citizen under Article I, section 9. In Hall, 339 Or. at 16-17, 115 P.3d 908, the Supreme Court described three general categories of encounters between police officers and citizens:

"The first category, `mere conversation' encounters, encompasses consensual interactions between police officers and citizens that require no justification and that do not implicate Article I, section 9. The second category, temporary restraints of a person's liberty for investigatory purposes—or `stop[s]' under ORS 131.615(1) (1995)—constitutes a type of `seizure' of a person under Article I, section 9, that must be justified by a reasonable suspicion of criminal activity. The third category, arrests, also constitutes a `seizure' of a person under Article I, section 9, and must be justified by probable cause to believe that the person arrested has committed a crime."

(Citations omitted; brackets in Hall; citing State v. Holmes, 311 Or. 400, 407, 813 P.2d 28 (1991).) The determination that a person has been seized "require[s] a fact-specific inquiry into the totality of the circumstances of the particular case." Holmes, 311 Or. at 408, 813 P.2d 28. In Holmes, id. at 409-10 813 P.2d 28, the Supreme Court held that a person is 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."

Here, Hickam testified that he did not develop reasonable suspicion of criminal activity until he saw the baggie when defendant was emptying her pockets. The issue is therefore whether, before that time, defendant believed that she was not free to simply walk away from the encounter and, if so, whether, under the circumstances, "a reasonable person in defendant's position could have believed" that. State v. Toevs, 327 Or. 525, 536, 964 P.2d 1007 (1998).

The circumstances here do not differ meaningfully from those in State v. Ashbaugh, 225 Or.App. 16, 200 P.3d 149 (2008), rev. allowed, 346 Or. 257, 210 P.3d 905 (2009). In that case, a police officer asked the defendant, without reasonable suspicion, if she had anything illegal in her purse, and she said no. The officer then asked if he could look inside her purse, and the defendant consented. The officer looked inside her purse and found methamphetamine. The conversation between the defendant and the officer was relaxed and nonconfrontational. Id. at 18-19, 200 P.3d 149. We concluded that "a person who knows that he or she is being investigated by a police officer during an encounter could reasonably believe that, for that reason, his or her freedom of movement has been restrained." Id. at 28, 200 P.3d 149.

In the present case, when defendant arrived at the parking lot, she observed her friend being detained in the back of the police car. Hickam, a uniformed and armed police officer, then motioned for defendant to come over. That act in and of itself did not constitute a stop. See Hall, 339 Or. at 19, 115 P.3d 908. However, he then inquired about identification, and wrote down her name and date of birth, from which she could reasonably conclude that he intended to pursue further investigation of her. Under the circumstances, that act might have amounted to a stop. See State v. Parker, 227 Or.App. 231, 238, 205 P.3d 65 (2009) (where one officer requested the defendant's identifying information while another officer was using the computer, a reasonable person could conclude that he or she was the subject of a records check). W...