State v. Ricks

• Decision Date: 12 April 2000
• Citation: 166 Or. App. 436,998 P.2d 234
• Parties: STATE of Oregon, Appellant, v. Victoria Lynn RICKS, Respondent.
• Court: Oregon Court of Appeals

998 P.2d 234

166 Or. App. 436

STATE of Oregon, Appellant, v. Victoria Lynn RICKS, Respondent.

(97C21383; CA A103293).

Court of Appeals of Oregon.

Argued and Submitted September 30, 1999.

Decided April 12, 2000.

Rolf C. Moan, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Peter Gartlan, Chief Deputy Public Defender, argued the cause for respondent. With him on the brief was David E. Groom, Public Defender.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and ARMSTRONG, Judge.

EDMONDS, P.J.

The state seeks reversal of a pretrial order granting defendant's motion to exclude evidence acquired as a result of a motor vehicle stop. ORS 138.060(3). The state contends that the trial court erred in holding that the police officer did not have an objectively reasonable suspicion at the time of the stop to believe that the car he stopped was stolen. ORS 131.615(1). We review for errors of law, ORS 138.220, and reverse.

The facts are not in dispute and are taken from the testimony of Officer Hicks at the suppression hearing. While on patrol at approximately 3:00 a.m., Hicks saw defendant drive a new model Toyota Corolla into the parking lot of a motel in northeast Salem. She had a female passenger with her. As he watched, defendant and her passenger parked in the "very far south parking lot of the [motel], and then walk[ed] behind the complex, the buildings, and went to a room in the center of the complex[.]" He noticed that defendant had not parked in available space much closer to the room that they had entered. Hicks is a fifteen-year police veteran. He testified that officers had frequently been called to that particular motel for a variety of offenses and that he personally had been involved in the recovery of stolen vehicles at that location. Hicks testified that based on his experience, he "was suspicious of the fact that the vehicle was being separated from the room[.]"

Hicks then requested a motor vehicle licence check on the Toyota. That check indicated that the vehicle was registered to an individual residing at a southeast Salem address. Hicks called the telephone number listed for the registered owner and left a voice mail message after receiving no answer. He then continued to patrol his assigned area. At approximately 4:00 a.m., a dispatcher notified Hicks that an individual with the same name as the owner of the Toyota had called and reported a prowler. Upon calling the telephone number given by the caller, Hicks ascertained that the caller was the son of the registered owner of the Toyota. The son lived at a different address. Hicks explained why he was calling and engaged in the following discussion:

"I asked him if there was any reason that the car or his father, being registered and living in Salem, that car should be at the [motel.] He said there was no reason to his knowledge. I asked him again if he knew if his father would loan that car to anybody that would have permission to drive it. He told me that no, to his knowledge nobody would drive."

The son said that he thought his father was at home, but that if he was not, he might be at his girlfriend's residence. The son did not know the girlfriend's telephone number. After Hicks described defendant, the son told him that defendant did not match the description of his father's girlfriend.

At that point, around 4:23 a.m., Hicks headed back to the motel, arriving just as defendant drove out of the motel parking lot in the Toyota. Hicks testified:

"I then told [the son] that I was back at the motel and the car was now leaving and the same person, a black female, was driving the car. I asked him if he knew a black female that his father associated with or that would have permission to drive the car. Again he told me that he knew of no one like that."

Hicks then initiated a traffic stop, believing the Toyota was a stolen car.

"ORS 131.615(1) permits an officer to stop a person temporarily so that a reasonable inquiry may be made of the person who the officer `reasonably suspects' has committed a crime." State v. Belt, 325 Or. 6, 10, 932 P.2d 1177 (1997). As defined in ORS 131.605(4) (1995), the phrase, "reasonably suspects" requires that the officer subjectively believe that the person stopped has committed a crime and that that belief be objectively reasonable. Id. at 11, 932 P.2d 1177. Hicks testified that he believed that the Toyota had been stolen. The question in this case is whether, under all the circumstances, the facts known to Hicks were sufficient to give him an objectively reasonable suspicion to believe that the Toyota had been stolen.

In State v. Ehly, 317 Or. 66, 80, 854 P.2d 421 (1993), the court explained that "reasonable suspicion" under ORS 131.615(1) "requires an objective test of observable facts. Whether the suspicion is reasonable often will depend on the inferences drawn from the particular circumstances confronting the officer, viewed in the light of the officer's experience. If a police officer is able to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime, the officer has `reasonable suspicion' and hence may stop the person for the investigation." Id. at 80, 854 P.2d 421 (citations and footnote omitted).

The trial court apparently believed that the existence or the absence of reported criminal activity was the critical factor in determining whether Hicks's suspicion was objectively reasonable. See, e.g., State v. Richards, 57 Or.App. 140, 643 P.2d 1348 (1982)

("reasonable suspicion" existed based on a recently reported rape and the similarity of the defendant's description to the description of the perpetrator). While a report of criminal activity is a relevant factor to the determination of whether reasonable...