State v. Sjogren

• Decision Date: 28 October 2015
• Docket Number: A156411.,13CR0679
• Citation: 274 Or.App. 537,361 P.3d 633
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Raleigh Lee SJOGREN, Defendant–Appellant.
• Court: Oregon Court of Appeals

274 Or.App. 537

361 P.3d 633

STATE of Oregon, Plaintiff–Respondent,

v.Raleigh Lee SJOGREN, Defendant–Appellant.

13CR0679

A156411.

Court of Appeals of Oregon.

Submitted Sept. 28, 2015.

Decided Oct. 28, 2015.

Peter Gartlan, Chief Defender, and David Sherbo–Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

Opinion

SERCOMBE, P.J.

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine in violation of ORS 475.894. He assigns error to the trial court's denial of his motion to suppress evidence discovered after a law enforcement officer stopped him for trespassing. Specifically, defendant asserts that, before the evidence was discovered, the officer had unlawfully seized him without reasonable suspicion in violation of Article I, section 9, of the Oregon Constitution. Because we conclude that the officer's stop of defendant was not supported by reasonable suspicion, we reverse and remand.

We review the trial court's denial of a motion to suppress for legal error and “are bound by the trial court's findings of historical fact that are supported by the record.” State v. Holdorf,355 Or. 812, 814, 333 P.3d 982 (2014). “If the trial court did not make express findings of fact on a pertinent issue and there is evidence from which those facts could be decided more than one way, we presume that the court found the facts in a manner consistent with its ultimate conclusion.” State v. Moore,264 Or.App. 86, 87, 331 P.3d 1027 (2014). We state the facts in light of those standards.

Libby Lane is a public road that runs through Coos County. A stretch of the road is bordered on one side by the Coquille Indian Reservation. Although the general public is invited to enter onto tribal lands on occasion, such as for certain celebrations throughout the year, generally tribal lands are not open to the public. Normally, only tribal employees and members have permission to enter onto tribal property. There are “No Trespassing” signs posted all along the land adjacent to Libby Lane.

Scoville is a patrol officer with the Coquille Tribal Police Department. While on patrol on Libby Lane early in the afternoon of December 17, 2012, Scoville saw a vehicle parked on tribal land. In particular, off the side of Libby Lane, there is a large, unpaved pull-out area that is tribal land. That pull-out area leads into a forest area; there is a “No Trespassing” sign posted high in a tree near the edge of the forest area beside the pull out. Scoville observed a pickup truck with two occupants parked at the back edge of the pull-out area near the edge of the forested area. The tribe had been having trouble with people entering into that area to shoot guns and dump garbage, and Scoville suspected that the occupants of the vehicle might be in that location to dump garbage.

Scoville, who was driving a patrol vehicle, pulled off and parked in the pull-out area about 30 feet away from the truck. He did not activate his overhead lights or siren. After stopping, Scoville walked up to the truck to speak with the occupants, defendant and Smith, who was in the driver's seat. Scoville asked both men whether they were tribal members or employees and they responded that they were not. Scoville then informed defendant and Smith that they were trespassing on tribal land. He asked both men for identification and, upon receiving it, ran a “wants or warrants” check through Coos County dispatch. Defendant was “labeled ‘officer safety’ in [the] system.”

Mitchell, an officer with the Coos County Sheriff's Office, later arrived to assist Scoville because of the perceived officer-safety issue. Scoville asked for and received consent from Smith to search the vehicle. Mitchell, who was interacting with defendant, asked defendant whether he had anything on his person that he should not and defendant stated that he did not. Mitchell, knowing that defendant had been labeled in the system as a possible threat to officer safety, then asked defendant for consent to conduct a patdown. Defendant consented and, during the patdown, Mitchell found the evidence at issue—a meth pipe—and arrested defendant.

Before trial, defendant filed a motion to suppress, asserting that the officer's contact with him “constituted a ‘stop’ unsupported by reasonable suspicion that Defendant had committed a crime.” In particular, defendant contended that a stop occurred when Scoville asked defendant for his identification and ran it. In defendant's view, his presence in the pull-out area did not give rise to reasonable suspicion of trespass. Specifically, based on the look of the pull out and the placement of the “No Trespassing” sign, defendant claimed that it was “reasonable for a person such as [defendant], or any other member of the public, to assume that the pull-out is * * * some place where a person could park.” Accordingly, he asserted that the stop was unlawful and all evidence obtained as a result of the patdown should be suppressed. The state did not argue that defendant was not stopped.

The court agreed with defendant that he was stopped when Scoville asked him for identification. However, it concluded that the stop was supported by reasonable suspicion that defendant was trespassing. On appeal, defendant contends that he was stopped without reasonable suspicion and, therefore, the trial court erred in denying his motion to suppress.

Article I, section 9, protects “the right of the people to be secure in their persons * * * against unreasonable search, or seizure.”

“Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen's liberty with the degree of justification required for the intrusion. At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed ‘stops,’ which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.”

State v. Fair,353 Or. 588, 593–94, 302 P.3d 417 (2013)(citations and footnote omitted). A “temporary restraint on a person's liberty for the purpose of criminal investigation—i.e.,a ‘stop’—qualifies as a seizure under Article I, section 9, and must be justified by a reasonable suspicion of criminal activity.” State v. Rodgers/Kirkeby,347 Or. 610, 621, 227 P.3d 695 (2010). According to defendant, the trial court correctly concluded that he was stopped when Scoville requested and retained his identification after informing him that he was trespassing. The state does not challenge that determination. Accordingly, we proceed with the understanding that defendant was stopped when Scoville asked for his identification. The issue, then, is whether, at that point, Scoville had reasonable suspicion that defendant was trespassing.

As noted, for a stop to be lawful, the police officer must have reasonable suspicion, that is, the officer “must have held a belief that was objectively reasonable under the totality of the circumstances existing at that time and place, that [the] defendant had committed a crime.” State v. Ehly,317 Or. 66, 79, 854 P.2d 421 (1993). “An officer must identify specific and articulable facts that produce a reasonable suspicion, based on the officer's experience, that criminal activity is afoot.”State v. Mitchele,240 Or.App. 86, 91, 251 P.3d 760 (2010). “The standard of ‘reasonable suspicion’ justifying a police intrusion on [the liberty interest in freedom from unreasonable searches and seizures] when a person is stopped was intended to be less than the standard of probable cause to arrest.” Holdorf,355 Or. at 823, 333 P.3d 982. “Reasonable suspicion does not require that the articulable facts as observed by the officer conclusivelyindicate illegal activity but, rather, only that those facts support the reasonable inferencethat a person has committed a crime.” State v. Hammonds/Deshler,155 Or.App. 622, 627, 964 P.2d 1094 (1998)(emphases in original).

The parties do not dispute that Scoville subjectively believed that defendant was trespassing on tribal property. Accordingly, the issue is whether, based on the specific, articulable facts known to him at the time of the stop, it was objectively reasonable for Scoville to believe that defendant was trespassing. Defendant asserts that Scoville's suspicion that defendant was trespassing was objectively unreasonable...