State v. Reinhardt
Decision Date | 01 May 1996 |
Citation | 140 Or.App. 557,916 P.2d 313 |
Parties | STATE of Oregon, Respondent, v. Mark Charles REINHARDT, Appellant. 93-03-31450; CA A83750. |
Court | Oregon Court of Appeals |
Appeal from Circuit Court, Multnomah County. Nely Johnson, Judge.
Jenny Cooke, Portland, filed the brief for appellant.
Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Robert B. Rocklin, Assistant Attorney General, filed the brief for respondent.
Before RIGGS, P.J., and LANDAU and LEESON, JJ.
Defendant appeals his conviction for possession of a controlled substance, ORS 475.992, assigning error to the trial court's denial of his motion to suppress. We reverse and remand.
In early 1993, an informant named Bullis told Detective Hennelly of the West Linn Police Department that he had been to a house where a woman named "Tammy" lived. Bullis gave the street name for the house and generally described its location and appearance. Bullis said that Tammy was buying stolen property at her house and that she paid for the stolen property using methamphetamine. Bullis said that on several occasions he had seen, at Tammy's house, both methamphetamine and property that he knew had been stolen. Bullis said that there was a man named "Rick" who would steal property in order to buy drugs at Tammy's house. Bullis also said that he saw at Tammy's house a man named "Troy," who frequented the house in order to trade stolen property for drugs. Bullis told the officer that "he is afraid" of the people at the house, because they are " 'biker type' people" whom he overheard "talking about their recent release from prison." Bullis also said that he had seen "one of the male subjects in the house wearing a handgun in a shoulder holster."
After Hennelly partially corroborated Bullis's information, a magistrate issued a warrant for a search of the house for methamphetamine. Hennelly and about five other officers went to the house to execute the warrant. Immediately upon entry, Hennelly saw defendant standing inside a bedroom doorway located near the living room of the house. Defendant was wearing a black "motorcycle-type" jacket and black boots. Hennelly ordered defendant "on the ground" and told defendant to put his hands behind his back. Defendant did so, and Hennelly then handcuffed him. After defendant was handcuffed, Hennelly did a "very cursory search on the back of his jacket" and then, along with the other officers, searched the house. After a few minutes, another officer assisted the handcuffed defendant to his feet in order to move him out of the way of the officers. As defendant was being "stood up," an officer saw a "small Ziplock baggie sticking out of his shirt pocket," which contained what appeared to be, and was, methamphetamine. Another officer seized the baggie.
Defendant was charged with possession of a controlled substance. ORS 475.992. He moved to suppress the search of his person "and the seizure of any and all evidence obtained as a result thereof." At the suppression hearing, defendant argued that the affidavit in support of the search warrant was unreliable. The trial court concluded that the affidavit was sufficient.
The trial court found that, had the officers not handcuffed defendant, "it is unlikely the officer would have noticed the baggy or discovered the baggy." The trial court also found that defendant "complied" with the officers' order "to raise his hands, lay on the ground, but not to move." Nevertheless, it concluded that "the police officers in executing the warrant did not exceed the force allowed" and denied the motion. Following a trial to the court, defendant was convicted.
Defendant appeals, assigning error to the trial court's denial of his motion to suppress. Defendant argues that the denial of his motion was erroneous for two reasons. First, he argues, the affidavit in support of the search warrant was constitutionally insufficient, because it failed to establish Bullis's credibility and the reliability of the information he supplied. Second, he argues, because handcuffing him constituted an unlawful seizure, any evidence that resulted from that handcuffing should have been suppressed. Because we agree with defendant on his second argument, we need not address his first.
Defendant argues that there was no justification for the police to handcuff him as they conducted their search of the house. To the state's argument that the handcuffing was necessitated by concerns for officer safety, defendant responds that there simply was no basis on which the officers reasonably could have believed that he posed an immediate threat to their safety. The state argues that handcuffing defendant was a permissible seizure justified as a reasonable safety measure. In support of that argument, the state relies on the following facts: (1) Bullis told Hennelly that he saw " 'biker type' people" at the house who "were talking about their recent release from prison"; (2) Hennelly knew from his training and experience that members of "outlaw" motorcycle gangs are often armed and involved with methamphetamine; (3) Hennelly saw that defendant had "extensive tattoos," and that made it "more likely" that he was either a member of a motorcycle gang or had been to prison and was, therefore, "potentially dangerous"; and (4) Bullis told Hennelly that he had seen a man at the house who had a gun in a shoulder holster.
In reviewing the trial court's decision, we are bound by its findings of historical fact if they are supported by the record. State v. Wilson, 120 Or.App. 382, 385, 852 P.2d 910, rev. den., 317 Or. 584, 859 P.2d 541 (1993). We review the court's legal conclusions for errors of law. State v. Lambert, 134 Or.App. 148, 151, 894 P.2d 1189 (1995).
In evaluating the use of force in executing search warrants, both statutory and constitutional limitations come into play. ORS 133.605(1) provides:
State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987). In evaluating an officer's actions under both the statute and the constitution, our focus is on the reasonableness of the officer's actions in the light of "the circumstances as they reasonably appeared at the time" they were taken. Id. at 525, 747 P.2d 991.
Rather, there must be specific and articulable facts to justify the officer's conclusion that a particular person presents an immediate threat of harm. Smay, 118 Or.App. at 34, 845 P.2d 1294.
With the foregoing principles in mind, we turn to the state's asserted justifications for the handcuffing in this case. First, Bullis's report of " 'biker type' people" at the house, who wore "extensive tattoos" is insufficient; that much is clear. Bates, 304 Or. at 525, 747 P.2d...
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