State v. Rudnitskyy

• Decision Date: 29 October 2014
• Docket Number: CR0901518,A147885.
• Citation: 266 Or.App. 560,338 P.3d 742
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Petr Vasilyevich RUDNITSKYY, Defendant–Appellant.
• Court: Oregon Court of Appeals

266 Or.App. 560

338 P.3d 742

STATE of Oregon, Plaintiff–Respondent

v.Petr Vasilyevich RUDNITSKYY, Defendant–Appellant.

CR0901518

A147885.

Court of Appeals of Oregon.

Argued and Submitted Aug. 21, 2013.

Decided Oct. 29, 2014.

David Sherbo–Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

ARMSTRONG, P.J.

Defendant appeals a judgment of conviction for one count of unlawful possession of heroin, ORS 475.854, assigning error to the trial court's denial of his motion to suppress evidence obtained after he was stopped by a Clackamas County Deputy Sheriff. Defendant contends that the officer stopped him without first developing reasonable suspicion that he was engaged in criminal activity, thereby violating Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. We affirm.

We review a trial court's denial of a suppression motion for legal error, deferring to the trial court's findings of historical fact when there is constitutionally sufficient evidence in the record to support them. State v. Bertha, 256 Or.App. 375, 378, 300 P.3d 265 (2013). In the absence of express findings, we resolve any factual disputes consistently with the trial court's ultimate conclusion. Id. We state the facts in accordance with that standard.

Witnessing what she believed to be an illegal drug transaction, a named informant contacted the Clackamas County Sheriff's Department. The informant reported that the transaction involved people in two cars—a black Hyundai and a yellow Subaru—that were parked at the far end of a McDonald's parking lot. A Clackamas County Sheriff's dispatcher conveyed the informant's report to Deputy Sheriff Schoenfeld, who knew that that McDonald's parking lot was a common location for the purchase and sale of heroin. Schoenfeld arrived at the McDonald's approximately one minute after receiving the informant's report. Schoenfeld testified at the suppression hearing, that, as he drove to the McDonald's parking lot, the dispatcher had told him that

“[the informant] had observed two Hispanic males in a black Hyundai with no front license plate back into a parking space, door to door with the driver of a yellow Subaru with [an identified Oregon license plate] * * * in the parking lot behind [the McDonald's]. * * * [The informant] related to dispatch that she observed what she believed was an illegal drug transaction between the driver of the yellow car and the driver of the black car.”

On his arrival at the parking lot, Schoenfeld found the yellow Subaru as it had been described by the informant. The two occupants of the Subaru—defendant, who was the driver, and a passenger—were talking to a third person who was leaning into defendant's window. The black Hyundai was not present. Schoenfeld parked his patrol car “slightly behind and a little away from” the Subaru, which was facing a row of planters and could not drive forward. Schoenfeld testified:

“I didn't intend on blocking them in. In that area I've got lots of police officers in the area. You can see how I parked there [on a diagram]. I wasn't trying to block them in purposely. And the way I parked, [the driver] could have backed out and then pulled out that driveway.”

Schoenfeld then got out of his patrol car and approached the Subaru; he did not activate his emergency lights and kept his gun holstered.

Regarding what happened next, Schoenfeld testified at the suppression hearing:

“[T]hey didn't even notice my patrol car pulling up. I was actually able to walk up to the door of the driver, that open window, and asked the guy [who] was near the window to step back near the curb. * * * I walked right up to the window, which was open, and I contacted the driver. And right when I contacted him, he dropped his hands to his lap. And what he was trying to hide was a lighter in his hand and a plastic straw.”

Schoenfeld later clarified that he had seen the straw in the driver's hand at that moment but only identified the lighter later, based on its proximity to the straw. He also testified that straws and lighters are commonly used to smoke heroin. Schoenfeld immediately ordered defendant and the passenger to place their hands on the dashboard.

After waiting for backup to arrive, Schoenfeld explained to defendant that a witness had seen him purchasing narcotics, and he asked defendant for consent to search the car. Defendant consented, and the subsequent search produced several tinfoil squares, which Schoenfeld testified were similar to those typically used to smoke heroin, as well as a bag containing what the officers believed to be heroin. Defendant and the passenger were given Miranda warnings, and defendant made a series of statements admitting that he had purchased the heroin.

Defendant filed a pretrial motion to suppress all evidence obtained as a result of the stop. He argued that Schoenfeld had stopped him when Schoenfeld parked behind the Subaru and that, at that time, Schoenfeld did not have reasonable suspicion that defendant was engaged in criminal activity. In defendant's view, the information that Schoenfeld had received from the dispatcher was insufficient to create a reasonable suspicion of criminal activity because it lacked sufficient detail to support such a suspicion.

The trial court denied defendant's motion, concluding that “Schoenfeld had reasonable suspicion to stop the occupants of [the Subaru] based on the fact that the citizen informant who reported illegal drug activity in [the] car was named and showed other indicia of reliability.” Because the trial court concluded that Schoenfeld had reasonable suspicion of criminal activity when Schoenfeld entered the parking lot and saw the Subaru, the court did not need to determine the point at which Schoenfeld stopped defendant. After a jury trial, defendant was convicted of unlawful possession of heroin.

On appeal, defendant renews his arguments, contending that Schoenfeld stopped defendant when he entered the McDonald's parking lot and parked his car “slightly behind and a little away from” the Subaru and that, at that time, Schoenfeld lacked reasonable suspicion of any criminal activity by defendant. In response, the state argues that Schoenfeld did not stop defendant until he ordered defendant and the passenger to place their hands on the dashboard and that, at that time, Schoenfeld had reasonable suspicion of criminal activity based on the informant's report, Schoenfeld's observations confirming details of the report, the paraphernalia in defendant's hands, and Schoenfeld's knowledge that the area was a known center of heroin distribution. We agree with the state.

Although they disagree as to the point at which it occurred, the state and defendant agree that Schoenfeld stopped defendant. Accordingly, we first determine when the stop occurred. For an encounter between an officer and a citizen to be a seizure under Article I, section 9, the officer must add to the inherent pressures of a citizen-police encounter “by either physically restraining the citizen's liberty in a significant way or engaging in a ‘show of authority’ that, explicitly or implicitly, reasonably conveys to the person a significant restriction on the person's freedom to terminate the encounter or otherwise go about his or her ordinary affairs.” State v. Anderson, 354 Or. 440, 450, 313 P.3d 1113 (2013) (citing State v. Backstrand, 354 Or. 392, 402, 313 P.3d 1084 (2013) ). “The test is an objective one: Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.” Backstrand, 354 Or. at 399, 313 P.3d 1084.

With those principles in mind, and contrary to defendant's argument, we conclude that Schoenfeld did not stop defendant by entering the McDonald's parking lot and parking his patrol car “slightly behind and a little away from” the Subaru that defendant was driving. Schoenfeld testified that he did not intend to block the Subaru and, accordingly, that he had parked his patrol car in a manner that would have allowed defendant to back out of his parking space and leave the McDonald's parking lot. Thus, at that time, Schoenfeld did not “physically restrain[ ] [defendant's] liberty in a significant way.” See State v. Aronson, 247 Or.App. 422, 426–28, 271 P.3d 121 (2011), rev. den., 352 Or. 33, 281 P.3d 611 (2012) (officer's act of parking his car behind the defendant's car in a manner that would allow the defendant to leave a parking space did not constitute a stop).

We turn to the point at which defendant became aware that Schoenfeld was standing at the open window of the Subaru, and we conclude that the stop occurred at the moment that Schoenfeld ordered defendant to place his hands on the dashboard of the Subaru. That order was in direct response to defendant's attempt to hide the contents of his hands, including the plastic straw that Schoenfeld knew to be an item commonly associated with heroin use. The order constituted a stop, which we conclude was based on reasonable suspicion that defendant was engaged in criminal activity.

For reasonable suspicion to exist, an officer must subjectively believe that the person has committed or is about to commit a crime and that belief must be objectively reasonable. State v. Maciel, 254 Or.App. 530, 535, 295 P.3d 145 (2013). To be objectively reasonable, the officer's suspicion must be based on specific and articulable facts. State v. Ehly, 317 Or. 66, 80, 854 P.2d 421 (1993).

Here, defendant's furtive gesture with the straw, combined with the informant's...