State v. Ramirez

• Decision Date: 01 July 2020
• Docket Number: A166595
• Citation: 305 Or.App. 195,468 P.3d 1006
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Samuel RAMIREZ, Defendant-Appellant.
• Court: Oregon Court of Appeals

305 Or.App. 195

468 P.3d 1006

STATE of Oregon, Plaintiff-Respondent,

v.Samuel RAMIREZ, Defendant-Appellant.

A166595

Court of Appeals of Oregon.

Argued and submitted July 9, 2019.

July 1, 2020

Mary M. Reese, 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.

Hannah K. Hoffman, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

JAMES, J.

Defendant appeals from a judgment of conviction of one count each of carrying a concealed weapon, ORS 166.240, unlawfully possessing methamphetamine, ORS 475.894, and giving false information to a police officer in connection with a citation, ORS 162.385. Defendant entered a conditional guilty plea reserving his right to seek appellate review of the trial court's denial of his motion to suppress. On appeal, defendant assigns error to that denial, first arguing that the trial court incorrectly determined that handcuffing defendant—an act which led to the discovery of a knife sheathed under defendant's sleeve—was justified by the officer safety exception to the warrant requirement under Article I, section 9, of the Oregon Constitution, which requires an officer's objectively reasonable suspicion, based on specific and articulable facts, that defendant poses an immediate threat of serious physical injury. Second, defendant argues that even if his detention for officer safety concerns was lawful, the subsequent search of his backpack, in particular an Altoids tin located within his backpack, was not a lawful search incident to arrest.

We agree with defendant that objectively reasonable officer safety concerns did not justify the handcuffing of defendant. That act led to the discovery of the knife, and in turn the charge of carrying a concealed weapon, ORS 166.240. We reverse the trial court's ruling on that aspect of defendant's motion to suppress. However, we affirm the trial court's ruling as to the search of the backpack that led to evidence in support of the charges of unlawfully possessing methamphetamine, ORS 475.894, and giving false information to a police officer, ORS 162.385. Because this case arises as a conditional plea, we remand to the trial court for further proceedings. At that time, defendant may elect to withdraw his plea as to the charge of carrying a concealed weapon, ORS 166.240, or may elect to withdraw his plea to all charges.

"We review the trial court's denial of the motion to suppress for legal error." State v. Miller , 267 Or. App. 382, 383, 340 P.3d 740 (2014). "In reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact that are supported by evidence in the record. We state the facts consistently with the trial court's explicit and implicit factual findings, which the record supports." State v. Leiby , 293 Or. App. 293, 294, 427 P.3d 1141 (2018) (internal citation omitted).

Officers Harmon, Cerda, and LaRue were driving their respective patrol vehicles to a domestic disturbance when they saw defendant and two female companions violate the city's jaywalking ordinance by crossing the street at less than a 90-degree angle. None of the officers had previously encountered defendant or his companions or had any other knowledge about them. As the officers drove by, Harmon saw defendant shield his face, which, Harmon testified, officers "often encounter * * * when people don't want us to see who they are or identify them." Harmon did not clarify whether "people" referred specifically to defendant. The officers were unable to locate the disturbance, so Cerda radioed the other officers that he would circle back to find the jaywalkers. Harmon and LaRue provided backup support for Cerda, and the three officers drove back to the area where they had seen the jaywalkers.

On cross-examination, Harmon acknowledged that three patrol cars converging on a jaywalker might be viewed as unusual:

"[DEFENSE COUNSEL]: Okay. And so would you agree with me then that there was quite a show of force to deal with jaywalkers?

"[HARMON]: There were three of us there. If—if we're simply talking jaywalking, I think one could maybe see it that way.

"[DEFENSE COUNSEL]: Okay. And that's all you were there for, wasn't it, was jaywalking, three jaywalkers?

"[HARMON]: Well, I was there to cover Officer Cerda.

"[DEFENSE COUNSEL]: So that's a yes, there were three officers there to cover three jaywalkers?

"[HARMON]: Well, we also had additional information knowing—I mean I personally knew that Mr. Ramirez had—you know, just shielding his face, again, just an inkling that there's something else, but—but— "[DEFENSE COUNSEL]: So he didn't want to look at you?

"[HARMON]: Uh-huh. It's possible.

"[DEFENSE COUNSEL]: Okay. So a show of force for three people jaywalking and one of them who didn't want to look at you, correct?

"[HARMON]: I would say that's correct."

Officer testimony shows that Cerda arrived first to the scene. He located the three individuals and asked them to stop. Although both of defendant's companions stopped immediately, defendant turned around to look at Cerda as he continued walking away. Cerda again asked defendant to stop, but defendant kept walking. When Harmon arrived on the scene shortly thereafter, defendant was still walking away.

Harmon testified that, in his training and experience, when "someone," not defendant in particular, refuses to stop, "[it] certainly raises a little concern * * * especially given the nature of a pretty minor violation. * * * [M]aybe they've done something that might be a violation, but usually it's [because] they believe or are wanted for something." He did not explicitly clarify whether defendant's refusal to stop made him suspect that defendant was wanted.

Shortly after Harmon arrived on the scene, defendant complied with the stop. LaRue arrived moments thereafter. Cerda and defendant's companions stood behind Cerda's patrol car while they discussed the jaywalking violation. Harmon explained that he had stopped defendant for failing to cross the street at a 90-degree angle. Defendant told Harmon that he believed that the city ordinance had been "thrown out" as unconstitutional. Harmon told defendant that, as far as he knew, the ordinance was constitutional. Defendant wanted to go "downtown so he could get wi-fi and look it up." Harmon told defendant that the ordinance was not on the internet; it was instead "on paper at the police department." That interaction was polite and not provocative. As that discussion occurred, LaRue walked back and forth between the front and back of the car, assisting both Cerda and Harmon.

Defendant refused to provide his name or date of birth and indicated that he had identification, but it was not with him. Harmon testified that when an individual, again, not defendant specifically, does not want to provide his name or date of birth, it is "another indication that somebody's possibly being deceptive * * * probably for * * * reasons of being wanted."

Defendant then provided Harmon a false name and date of birth, Sergio Rodriguez, which he twice misspelled without the second "r," "Rodiguez." Cerda attempted to verify the information using the computer inside his vehicle, but was unsuccessful. As LaRue walked back and forth between Cerda, who was inside his patrol car, Harmon, who was in front of the patrol car near defendant, and the female companions, who were behind the vehicle, one of the companions told LaRue that defendant's name was "Sam." At that point, LaRue and Cerda determined that defendant's true identity was Samuel Ramirez. LaRue testified:

"[LARUE]: We started going back and forth trying to find out who he was. And so I started talking to some of the females and trying to get information from them on who he was. And eventually I was told by one of the females—and I forget which one it was—that his name—his first name was Sam.

"[PROSECUTOR]: And what did you do with that information?

"[LARUE]: Well, as we were trying to figure out, again, Officer Cerda was, I believe, in his car trying to run names and * * * figure out names. That everything kind of happened where I think Officer Cerda figured out who he was and we were kind of figuring out it was Sam Ramirez."

Meanwhile, defendant asked permission to sit on the curb. Harmon agreed. As defendant sat on the curb, about six or seven feet away from Harmon, he asked Harmon if defendant could put his cell phone in his backpack, which Harmon described as "odd." Harmon testified:

"[PROSECUTOR]: So then I had interrupted, but you said that he—he asked if he could put his phone in his backpack?

"[HARMON]: Yes, he did.

"[PROSECUTOR]: And then what happened?

"[HARMON]: I told him he could. And, again, I found it odd that, you know, he had wanted to do that, but—and then he proceeded to open the main compartment on—on the backpack which, again, kind of struck me and I was watching him.

"[PROSECUTOR]: So let me stop you. Why did it strike you as odd that he wanted to put his cell phone in his backpack?

"[HARMON]: If I'm putting away something small like that, I would probably use the outer pockets. I can access it quickly if I wanted, not into a larger compartment that it might be—be bounced around with other items.

"[PROSECUTOR]: And why did it strike you as odd in the first place that he wanted to put it away?

"[HARMON]: Because I think he had pockets on the clothing he was wearing. So he could just, you know, put in a pocket or something. So he—he went to put that, and I was watching him."

Further, Harmon testified that one aspect of defendant's behavior that made him subjectively concerned was that while defendant put the phone in the backpack, he looked at the officer. Harmon testified, "And he looked up at me as if to see if I was—I'm...