State v. Ruiz

• Decision Date: 01 December 2004
• Citation: 101 P.3d 824,196 Or. App. 324
• Parties: STATE of Oregon, Respondent, v. Everett Ershell RUIZ, aka Everett Ershelleldo, Appellant.
• Court: Oregon Court of Appeals

101 P.3d 824

196 Or. App. 324

STATE of Oregon, Respondent, v. Everett Ershell RUIZ, aka Everett Ershelleldo, Appellant.

0011-38666; A114493.

Court of Appeals of Oregon, En Banc.

Argued and Submitted February 28, 2003.

Resubmitted October 27, 2004.

Decided December 1, 2004.

Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender, Office of Public Defense Services.

Michael J. Slauson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN and ORTEGA, Judges, and DEITS, Judge pro tempore.

Resubmitted En Banc October 27, 2004.

LANDAU, J.

Defendant appeals a conviction for possession of a controlled substance. ORS 475.992(1). He assigns error to the denial of a motion to suppress evidence that was seized from him during what he asserts to have been an unlawful stop. We affirm.

The relevant facts are not in dispute. Portland Police Officer Elaias was on patrol near the bathrooms at Waterfront Park in Portland late in the afternoon in November. The Portland Saturday Market was operating next to the park. Elaias knew from his training and experience that this area had a "bad problem with controlled substances." He saw defendant and another individual sitting together on a wall. Elaias spoke with defendant's companion and noticed that the companion appeared to have something in his mouth. Elaias asked the companion to open his mouth. The companion opened his mouth. The man had a bindle under his tongue containing a white substance that Elaias suspected was cocaine.

Defendant remained seated next to his companion as Elaias looked inside the man's mouth. Elaias called for backup before attempting to remove the bindle. Defendant reached into his pocket. Fearing that defendant was reaching for a weapon, Elaias told defendant to take his hand out of his pocket. Defendant complied. When he took his hand out of his pocket, however, it was covered in a brown substance that Elaias suspected was tar heroin. Elaias then searched defendant and found five bindles of what was later determined to be heroin.

Defendant moved to suppress the drug evidence, arguing that Elaias's order to take his hand out of his pocket constituted an unlawful stop. At the hearing, Elaias testified that he asked defendant to remove his hand from his pocket because he was concerned for his safety, given that defendant could have been reaching for a gun or a knife. The court commented that, under the circumstances, were the court in the officer's shoes observing defendant put his hand in his pocket, "Would I be emphatic, to say the least, about getting the hand out of the pocket? Of course I would. Anybody would be an idiot not to do so." The trial court, however, did not rule on defendant's motion on officer safety grounds. The court concluded that, because Elaias's command was not a stop in the first place, it did not need to reach the question whether the command was reasonable.

On appeal, defendant contends that Elaias's command was indeed a stop and was not reasonable. The state argues that the trial court correctly determined that the command was not a stop. In the alternative, the state argues that, if the command was a stop, it was reasonably necessary to protect Elaias's safety.

We begin with whether Elaias stopped defendant when he ordered him to take his hand out of his pocket. An officer stops a person if the officer exercises authority over that person in a way that would lead the person reasonably to believe that he or she is not free to leave. E.g., State v. Johnson, 105 Or.App. 587, 590-91, 805 P.2d 747 (1991)

. In this case, a person in defendant's position would not reasonably believe that he could walk away from his encounter with Elaias without first taking his hand from his pocket, as Elaias ordered him to do so. It necessarily follows that Elaias exercised authority over defendant and that the exercise of authority constituted a stop.

We turn to whether the stop nevertheless was reasonable in light of Elaias's concerns for his safety. A stop is lawful if the officer making it reasonably suspects that it is necessary to protect the officer's safety. State v. Bates, 304 Or. 519, 747 P.2d 991 (1987), establishes the framework for evaluating whether concern for safety reasonably justifies a stop. Under Bates, the state must establish that the officer subjectively suspected that the person the officer stopped posed an immediate threat of serious physical injury to the officer or others present and that the officer's suspicions were objectively reasonable. Id. at 524, 747 P.2d 991. In this case, Elaias testified — and no one contests — that he feared for his safety when defendant reached into his pocket. Thus, the only issue before us is the objective reasonableness of Elaias's concern.

In evaluating the reasonableness of an officer's concern for safety, we examine "the totality of the circumstances as they reasonably appeared to the officer[ ] at the time." State v. Jackson, 190 Or.App. 194, 199, 78 P.3d 584 (2003), rev. den., 337 Or. 182, 94 P.3d 877 (2004). In this case, those circumstances included the fact that defendant reached into his pocket during an investigation of defendant's companion for a drug-related offense, in an area known to be a problem area for unlawful drug transactions. Elaias testified that he was concerned that, during the course of a drug-related investigation, defendant was reaching for a gun or a knife.

That the investigation occurred in a high-crime area certainly lends credence to Elaias's concerns. See Jackson, 190 Or.App. at 201,

78 P.3d 584 (officer's prior experience with gang activity in the particular area supported officer's concerns for safety). So too does the fact that defendant remained right next to his companion as Elaias investigated. State v. Miglavs, 337 Or. 1, 14, 90 P.3d 607 (2004) ("When [the] defendant remained in that close proximity to the officers, the officers' safety concerns reasonably were heightened because the officers needed to focus their attention on defendant's companion and were not able to watch defendant as closely as they could before that time."). And that defendant's movements occurred during a drug-related investigation reasonably alerted Elaias to the possibility of immediate danger.

In that regard, the circumstances recall those of State v. Gilkey/White, 172 Or.App. 95, 18 P.3d 402 (2001). In that case, police pulled over a car matching the description given by an informant who had witnessed passengers in the car engaged in what appeared to be the ingestion of controlled substances. After stopping the vehicle, Officer Craddock asked the three occupants for identification. One of the passengers appeared to be under the influence of drugs, and a record check revealed that another of the passengers, Gilkey, had an outstanding warrant. Craddock arrested Gilkey pursuant to the warrant. Id. at 97, 18 P.3d 402.

After the arrest, Craddock asked the remaining passengers, including the defendant, to leave the vehicle to allow him to search the passenger compartment. During the course of that search, another officer, Foster, saw the defendant turn from the officers and slowly reach into his left front pants pocket. Foster, concerned that the defendant could be reaching for a weapon, yelled to warn Craddock and grabbed the defendant's hand. As it turned out, the defendant had been holding onto a pocket knife and two small containers of methamphetamine. Id. at 97-98, 18 P.3d 402.

We concluded that the warrantless seizure of the contents of the defendant's pockets was justified by officer safety concerns. Defendant's action of reaching into his pocket during the course of a drug-related stop, we held, justifiably frightened Foster, who had testified that the defendant could have been reaching for a gun. Id. at 99-100, 18 P.3d 402.

We conclude that in this case, under the totality of the circumstances as they reasonably appeared to Elaias, the officer's concern for his safety was reasonable. The trial court therefore did not err in denying defendant's motion to suppress.

Affirmed.

ARMSTRONG, J., dissenting.

I disagree with the majority's conclusion that the record establishes that Elaias had a reasonable concern for his safety when he stopped defendant. I therefore respectfully dissent from its decision to affirm the order that denied defendant's motion to suppress.

Because I understand the record differently from the majority, I restate the facts. Portland Police Officer Elaias was on patrol near the bathrooms at Waterfront Park in Portland at about 4:00 p.m. on November 11, 2000. At that time, the Portland Saturday Market was operating next to the park. Elaias knew from his training and experience that the area had "a bad problem with controlled substances." He saw defendant and another person sitting together on a wall. Elaias spoke with defendant's companion and asked to look in his mouth. The companion opened his mouth and thereby disclosed a "bindle of white substance" under his tongue.

Defendant remained seated on the wall during the encounter. At some point, he put his hand in his pocket. Elaias directed him to take his hand out of his pocket. Elaias testified that he gave that order because he "was afraid [that defendant] might have been reaching for a weapon." That fear was not based on any particular facts that Elaias identified that led him to believe that defendant had a weapon. It was based, rather, on the fact that Elaias knew that "sometimes people carry weapons, i.e. a gun or knife or something like that." Defendant complied with the command. When he took his hand out of his pocket, it was covered in a brown substance that Elaias suspected to be tar heroin. Elaias then...