State v. Rickard

• Decision Date: 15 October 1997
• Citation: 947 P.2d 215,150 Or.App. 517
• Parties: STATE of Oregon, Respondent, v. Gordon Philip RICKARD, Appellant. 95-03-32288; CA A91303.
• Court: Oregon Court of Appeals

Page 215

947 P.2d 215

150 Or.App. 517

STATE of Oregon, Respondent, v. Gordon Philip RICKARD, Appellant.

95-03-32288; CA A91303.

Court of Appeals of Oregon.

Argued and Submitted April 25, 1997.

Decided Oct. 15, 1997.

Sally L. Avera, Public Defender, argued the cause and filed the brief for appellant.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and Eleanor E. Wallace, Assistant Attorney General.

Before DEITS, C.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Defendant appeals from a conviction for possession of a controlled substance. ORS 475.992. He argues that the trial court erred in failing to suppress certain evidence that he contends was obtained pursuant to an illegal search. We affirm.

On the evening of March 26, 1995, Portland police Officer Johnson was on routine patrol driving north on 82nd Avenue in Portland. She stopped at a red light behind two other cars, a Datsun that was immediately in front of her and a pickup truck that was in front of the Datsun. The occupants of the pickup jumped out of that vehicle and started yelling excitedly toward Johnson, "He's got a gun, a gun, a gun," pointing at the Datsun. Johnson radioed for assistance, turned on her overhead lights, drew her gun and aimed it at the occupants of the Datsun, and ordered the occupants of the pickup to park the pickup around the corner, out of the line of any possible gunfire. The driver of the pickup obeyed the officer's order, and Johnson remained positioned with her gun aimed at the Datsun until her backup arrived.

Several police cars arrived, and the officers initiated a "high-risk" stop. Officer Coorpender, who was in the second car to arrive, testified as to the sequence of a high-risk stop:

"Q [By prosecutor:] Take us a little bit more specifically through this high risk stop and removing the occupants from the vehicle. Did you have your weapons drawn?

"A Yes, we did.

"Q And were they ordered out one at a time?

"A Yes, they were.

"Q Okay. Take us through--

"A Yeah. It's a sequence--

"Q --the stop.

"A --for officer safety. The people in the car--and the suspects' safety, and public safety. And since there's potentially a weapon involved, we're going to assume that there's a weapon in there and it could potentially be used against someone.

"So we keep everyone at gun point, we give very explicit instructions, taking people out of the car one at a time. We usually tell them if they do not follow our instructions they may be shot, just to communicate to the seriousness of the situation.

"This is * * * a very high risk situation. There is a restaurant immediately behind where we were. People kept coming out to look at it. This is * * * a very busy street. So we had cars blocking traffic * * *. But, still, it's impossible to move--remove citizens from potential gunfire in this situation.

"So we take each person out, always bringing them out on a side where we have the maximum visibility. The two lead cars always stay on the car, with their guns pointed at the car. And even when we think we've got all the people out of the car--because we don't know that somebody might not be leaning down where we can't see them.

"And then we have--we wait until we get enough officers there that we have what's called a custody team and as the person is directed out of the car by the PA system, they reach a certain point and the custody team begins issuing commands, taking them out, handcuffing them, checking them to see if they have the weapon, and then secure them in a police car.

" * * * * *

"Q And why were you doing that, sir?

"A Just for officer safety. Because the primary focus of the officers at the scene was going to be on the car once we got the people handcuffed. We want to make sure they didn't have any weapons or articles of escape because they're going to be, more or less, behind us during the rest of this high-risk stop. Even though they're handcuffed in a police car, they're still (inaudible) which makes us concerned. So we want to take items out of their pockets and get them away from them.

"And as is typical in that kind of situation, we're not paying attention to what's coming out. We're just taking items out of pockets so that we know that there's nothing in there, or we don't believe there's anything in there that can harm us or allow them to escape."

The officers did not find a gun. However, one of the Datsun's occupants admitted that he had used a wrench and held it in such a way that a person could reasonably believe that the wrench was a gun. At some point during the stop, the occupants of the pickup left, without giving their names.

When the police concluded that there was no gun, they removed the handcuffs from everyone and moved the occupants and the Datsun to a high school parking lot so that they could return all of the items that they had taken from each person's pockets. Coorpender placed the items on the hood of one of the police cars and began returning the items. Among the items taken were a small baggie of marijuana ¹ and a marijuana pipe. Referring to those items, Coorpender asked, "Whose is this?" Defendant answered that the items were his. Coorpender continued to return the remaining items to the four occupants and eventually came to a cloth drawstring bag. When Coorpender asked who claimed the bag, defendant replied that it was his. Coorpender then asked defendant what was inside the bag, and defendant replied that it contained "more baggies." Because the bag was not tied completely shut, Coorpender peered into it and saw a bill rolled into what he recognized from his prior training and experience as a "snort tube" used for ingesting controlled substances through one's nasal passages. He opened the bag more and found small baggies containing white powder residue, which he believed to be the residue of an illegal controlled substance. Defendant was placed under arrest and was eventually charged with possession of methamphetamine. ORS 475.992(4).

Defendant moved to suppress the evidence found in his drawstring bag. He argued that the officers exceeded the authority given to them, under ORS 131.615 and ORS 131.625, to stop and frisk him for a weapon, and that they violated his rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution when they stopped him and searched his pockets. The trial court concluded that the stop was based on reasonable suspicion and that the subsequent search of defendant's pockets was reasonable under both Article I, section 9, and the Fourth Amendment. It therefore denied the motion to suppress. Defendant was thereafter tried on stipulated facts and convicted.

On appeal, defendant assigns error to the court's ruling on his motion to suppress and argues again that the officers' actions violated ORS 131.615 and ORS 131.625, as well as his rights under Article I, section 9, and the Fourth Amendment. We begin with defendant's threshold argument that the stop of the Datsun was unlawful. Defendant argues that the statements and actions of the pickup's occupants were not sufficient to provide Johnson with reasonable suspicion to believe that there was a gun in the Datsun. Defendant argues, moreover, that even if Johnson reasonably suspected that someone had a gun, "a weapon in an automobile is not necessarily criminal conduct."

ORS 131.615 provides:

"(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.

"(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

"(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer's suspicion."

ORS 131.605(4) provides:

" 'Reasonably suspects' means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts[.]"

In this case, Johnson believed that someone in the Datsun had brandished a gun at the pickup's occupants and further believed that at least one of the Datsun's occupants continued to present a threat. See ORS 163.190(1) ("A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury."). That belief was based on the words, actions, and demeanor of several unidentified citizen informants. In determining whether the informants' statements were sufficiently reliable to give rise to reasonable suspicion, we consider three factors:

"One is whether the informant is exposed to possible criminal and civil prosecution if the report is false. That factor is satisfied if the informant gives his or her name to law enforcement authorities or if the informant delivers the information to the officer in person. The second factor is whether the report is based on the personal observations of the informant. An officer may infer that the information is based on the informant's personal observation if the information contains sufficient detail that

" 'it is apparent that the informant had not been fabricating [the] report out of whole cloth * * * [and] the report [is] of the sort which in common experience may be recognized as having been obtained in a reliable way * * *.' Spinelli v. United States, 393 U.S. 410, 417-18, 89 S.Ct. 584 [589-90], 21 L.Ed.2d 637 (1969).

"The final factor is whether the officer's own observations corroborated the informant's information. The officer may corroborate the tip either by observing the illegal activity or by finding the person, the vehicle and location substantially as described by the informant." State v. Villegas-Varela, 132 Or.App. 112, 115...