State v. Roberts
| Decision Date | 30 December 2020 |
| Docket Number | A170270 |
| Citation | 480 P.3d 1016,308 Or.App. 225 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Jodi Michelle ROBERTS, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Nora Coon, 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.
Daniel Norris, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
Defendant appeals from a judgment of conviction for unlawful possession of a useable quantity of methamphetamine, ORS 475.894(2)(a). She assigns error to the trial court's denial of her motion to suppress evidence obtained after her car was stopped by police on suspicion of involvement in a theft of merchandise from a nearby Home Depot. Subsequent to the stop, defendant consented to a search of her car, where methamphetamine was found. Defendant argues that the stop violated Article I, section 9, of the Oregon Constitution, because it was not supported by objectively reasonable suspicion that defendant had committed a specific crime or type of crime. Defendant contends that her consent was the product of an unlawful stop. We conclude that the trial court did not err in denying defendant's suppression motion. Therefore, we affirm.
We review the trial court's ruling denying defendant's motion to suppress for legal error. State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017). We are bound by the court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). Where the court did not make express findings, and there is evidence from which the court could have found a fact in more than one way, we presume that the court decided the facts consistently with its ultimate conclusion. Id . We summarize the facts in accordance with those standards.
On September 22, 2018, at approximately 5:50 p.m., Officer Bobier responded to a call of a "Theft In Progress" at a Home Depot. Over her police radio, Bobier heard a report from dispatch that a female suspect with "curly brown hair" wearing an orange shirt had taken power tools from the Home Depot. As the suspect ran from the store, a witness observed her "stop[ ] and [make] contact in the parking lot with a white Dodge Intrepid" that was marked in the back with a temporary trip permit. The witness reported that the vehicle was occupied by one male and one female, and that the suspect had a "slight conversation" with the occupants. It was unknown if the female theft suspect had either passed items to the vehicle's occupants or gotten into the vehicle herself. However, Bobier understood that "[the theft suspect] was last seen having a conversation with the people in this vehicle." The vehicle was then seen heading westbound on TV Highway.1
As Bobier looked for the white Intrepid, Officer Voth also made his way to the area. Although Bobier was only receiving information via her police radio, Voth was also reading the written dispatch notes as they appeared in his computer system. Voth understood that the loss prevention officer (LPO) had unsuccessfully tried to stop the suspect, that the suspect was "running towards the Red Robin" across the street, and that a white Dodge was "possibly involved." Voth believed that he was looking for "a vehicle in the area and a female in the area, on foot." Voth knew from past dealings that this LPO would typically follow shoplifters outside and keep them in visual range for as long as possible until police arrived.
Bobier had been in law enforcement for 14 years and had responded to "at least 500 or more" calls involving thefts from stores. Bobier testified that "it's not unusual at all" for retail thefts to involve multiple suspects, and that "it is common" for one person to go inside a store and steal while another person waits outside for them in a getaway vehicle. Bobier testified that it was typical in her experience that, if an LPO attempted to stop a shoplifter, the shoplifter might try to get rid of the stolen merchandise. Voth testified that, in his experience, that happens about 50 percent of the time, particularly in cases where a shoplifter believes they are about to be successfully stopped by an LPO.
Defendant was the driver of that car. Bobier testified that, upon approaching the car, she did not see the theft suspect in the vehicle. She did not see any Home Depot bags either, although she could not see under the seats or in the trunk. Approximately 20 to 30 seconds after Bobier initiated the stop, Voth arrived on the scene. Voth spoke with the backseat passenger while Bobier questioned defendant. Voth noted that the single passenger in the car was sitting directly behind the driver, rather than in the front passenger seat, a seating arrangement he considered "unusual" and which led him to believe that "there [were] people that weren't present in the car and, hence, we were still looking for a couple of people." Bobier asked defendant to step out of the vehicle, read defendant her Miranda rights, and questioned her about the theft incident. Defendant admitted to knowing the theft suspect by first name only and reported that the suspect "walked up to her vehicle and said hi." The male passenger admitted to Voth that the theft suspect was his wife. Bobier asked for defendant's consent to search the car, which was granted. During the search, Bobier located a small bag of methamphetamine and a methamphetamine pipe.2 Defendant was charged with one count of unlawful possession of methamphetamine—usable quantity, a Class A misdemeanor.3
In advance of trial, defendant moved to suppress "the stop * * *, as well as the seizure of any and all evidence obtained as a result therefrom, including all oral derivative evidence." As relevant to this appeal, defendant argued that the mere fact that the theft suspect had "some kind of interaction" with defendant's car was not sufficient to support Bobier's suspicion that defendant committed any crime related to the theft. The state argued that, under the totality of the circumstances, Bobier did have reasonable suspicion that defendant was involved in the theft and may have taken possession of the stolen property or provided transportation to the theft suspect. The trial court denied the motion, concluding that "there was reasonable suspicion and that both officers were able to describe specific articulable facts." The court noted certain specific facts in making its ruling: that a white Dodge Intrepid with a trip permit "was described as possibly being involved" in a theft in progress; that the suspect had made contact with that vehicle; and that "the seating arrangement was unusual" when the officer stopped the car a quarter of a mile from the theft site. Defendant was tried before the court on stipulated facts and convicted of possession of methamphetamine. This timely appeal followed.
Defendant reiterates her argument that the circumstances in this case are not enough to meet the reasonable suspicion standard for the police to stop her car. She posits that her mere association with the theft suspect and their short exchange of words is insufficient to show reasonable suspicion that defendant committed a crime. The state argues that the totality of circumstances in this case is more than a mere association or exchange of words, and that, when the actual totality of circumstances is considered, it was reasonable for Bobier to have suspected that defendant aided and abetted the theft and that defendant's car could contain the merchandise or the suspect.
We turn to the law that applies to Bobier's stop of defendant. Article I, section 9, protects individuals against unreasonable searches and seizures. A stop, or temporary detention for investigatory purposes, is a seizure that must be supported by reasonable suspicion of criminal activity to comply with Article I, section 9. See Maciel-Figueroa , 361 Or. at 169-70, 389 P.3d 1121. A stop is supported by reasonable suspicion when the officer subjectively believes that the person has committed or is about to commit a specific crime or type of crime, and that belief is objectively reasonable in light of the totality of the circumstances existing at the time of the stop. Id . at 182, 389 P.3d 1121.
Reasonable suspicion must be supported by specific and articulable facts. Id . at 165, 389 P.3d 1121. The standard does not require that those facts "conclusively indicate illegal activity but, rather, only that those facts support the reasonable inference" that the person committed or was about to commit a specific crime or type of crime. State v. Semore , 298 Or. App. 341, 345, 445 P.3d 895 (2019) (citing State v. Hiner , 240 Or. App. 175, 181, 246 P.3d 35 (2010) ). An officer can draw on his or her training and experience to make reasonable inferences under the circumstances, but "training and experience alone are not an adequate substitute...
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