State v. Soto

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Alex SOTO, Defendant–Appellant.
• Citation: 284 P.3d 1254,252 Or.App. 50
• Docket Number: 100343090,A145603.
• Court: Oregon Court of Appeals
• Decision Date: 29 August 2012

252 Or.App. 50

284 P.3d 1254

STATE of Oregon, Plaintiff–Respondent,

v.Alex SOTO, Defendant–Appellant.

100343090; A145603.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 2011.

Decided Aug. 29, 2012.

Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

ARMSTRONG, P.J.

Defendant appeals a judgment of conviction for unlawful possession of a firearm, ORS 166.250, arguing that the trial court erred in denying his motion to suppress evidence obtained as a result of an unlawful seizure and the subsequent search of defendant's pants pocket. We disagree with defendant's premise that he was unlawfully seized, and, accordingly, we affirm.

We review a court's denial of a motion to suppress for legal error and defer to the court's findings of historical fact if there is evidence to support them. State v. Mitchele, 240 Or.App. 86, 88, 251 P.3d 760 (2010). So far as the court did not make express findings, we resolve any factual disputes in a way that is consistent with the court's ultimate conclusion. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005).

Consistently with that standard, we take the following facts from the court's ruling and the record of the suppression hearing. While on gang interdiction duty on an afternoon,¹ Portland Police Officer Taylor and his partner were patrolling an area in Northeastern Portland that is subject to gang activity. The officers noticed a group of three men, including defendant, passing in front of their marked patrol car as the officers were stopped at an intersection. Because Taylor recognized one of the men other than defendant from a previous encounter-during which the man had talked openly about being a member of a gang—and noticed that all of the men wore clothing that, to Taylor, suggested gang affiliation, he decided that he wanted to talk to them. Taylor turned the car and drove it in the direction that the men were heading, parked behind the group, and—without turning on the car's lights, using its siren, or yelling at the men—got out of the car and started walking with his partner to catch up to the group.

As the officers were following the men, Taylor said, “Hi, guys,” and two of them stopped and began talking with Taylor's partner; however, defendant continued walking. Taylor briskly followed behind defendant and said to him, “Hey there.” Defendant did not respond but, rather, continued walking until Taylor caught up to him and said, “We were hoping to talk [to] you guys. Is that okay?” At that point—about 30 feet away from where Taylor's partner was talking with the other men—defendant stopped walking, turned toward Taylor, nodded his head, and said, “Yeah.” Taylor then asked, “Would it be okay if we walked back to where your friends are?” Defendant replied, “Okay.”

Defendant and Taylor began to backtrack, and, just before they reached the group—but after defendant had told Taylor his name—Taylor asked defendant, “Do you have any weapons on you?” Defendant nodded,² and, after Taylor asked him whether he was answering his question affirmatively, defendant said, “Yeah.” Taylor testified that, up to that point in the encounter, he had maintained a conversational tone with defendant and was being neither directive nor demanding. He also testified that his question about the weapon was merely him being “nosey” in the hopes that he would “get an opportunity to search and find a weapon.”

Taylor then instructed defendant to put his hands behind his head and asked him where the weapon was located. Defendant shook his right leg and looked down at it, and Taylor felt the outside of defendant's right pants pocket. He immediately felt a handgun and pulled it out of the pocket. As a result of the encounter, the state charged defendant with one count of unlawful possession of a firearm.

Before defendant's case was tried to the court, he moved to suppress, under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, the evidence obtained after Taylor's search— viz., the gun and statements that defendant had made after discovery of the gun and his receipt of Miranda warnings. After a hearing at which Taylor testified, the court denied defendant's motion, concluding that the encounter was “mere conversation all the way up to where [Taylor] asked him [if] he ha[d] a weapon” and, once defendant admitted that he did have a weapon, Taylor's subsequent search of his pants pocket was justified by reasonable suspicion that defendant unlawfully possessed a firearm.

The determinative inquiry in this case is at what point during defendant's encounter with Taylor was defendant seized under Article I, section 9. ³ On the one hand, defendant contends that he was seized at various points during the encounter: when Taylor followed him; attempted to get his attention; asked him to walk 30 feet in the opposite direction; and asked him for his name and whether he was carrying a weapon. On the other hand, the state predictably responds that Taylor's actions during the parts of the encounter on which defendant relies were insufficient to effect a seizure under the test articulated in State v. Ashbaugh, 349 Or. 297, 316, 244 P.3d 360 (2010). As explained below, the state has the better of the argument.

A limitless variety of encounters may occur between citizens and police officers, but, for purposes of Article I, section 9, those encounters are shoehorned into one of two well-established, and oft-repeated, categories: (1) a mere conversation, an officer's casual encounter that has no constitutional import and, hence, for which the officer need not have any justification, or (2) a seizure, an encounter characterized by an officer's restraint of a person for investigative purposes and for which the officer needs some type of justification, depending on the type of seizure, so as not to offend Article I, section 9. Id. at 308–09, 244 P.3d 360.

To differentiate between mere conversation and a seizure, the Supreme Court has instructed courts to undertake the following fact-specific evaluation of the totality of the circumstances in a case:

“A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.”

Id. at 316, 244 P.3d 360 (emphasis in original). Under that test, the touchstone for determining whether a seizure has occurred is whether an officer has restricted the defendant's liberty or freedom of movement by a show of authority. State v. Rodgers/Kirkeby, 347 Or. 610, 621–22, 227 P.3d 695 (2010). Such a restriction may be accomplished through purely verbal means, as shown, for example, by the content of an officer's questions to the defendant, Ashbaugh, 349 Or. at 317, 244 P.3d 360; however, an officer does not seize a person merely by asking the person questions that most people would not ordinarily ask another person, State v. Holmes, 311 Or. 400, 410, 813 P.2d 28 (1991). In addition to the words used by an officer, the officer's conduct during the encounter may manifest the necessary show of authority that gives rise to a seizure, especially if the officer physically restrains the defendant or acts in a threatening or coercive manner toward the defendant. Ashbaugh, 349 Or. at 317, 244 P.3d 360;Rodgers/Kirkeby, 347 Or. at 622, 227 P.3d 695. Moreover, if the defendant would know, in light of an officer's actions, that he or she is the subject of a criminal investigation, then a reasonable person in the defendant's position would believe that his or her freedom of movement had been significantly restricted. State v. Radtke, 242 Or.App. 234, 238–39, 241, 255 P.3d 543 (2011).

Even though the fact-intensive nature of the seizure inquiry does not lend itself to generalization, the Supreme Court has articulated certain precepts that courts should keep in mind when evaluating whether an encounter, such as the one in this case, between officers and pedestrians—that is, not the more typical officer-motorist encounter—are seizures under Article I, section 9. In that regard, the court has explained that

“officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful. A street or public place encounter does not amount to an Article I, section 9 [,] ‘seizure’ merely because the encounter may involve inconvenience or annoyance for the citizen and the other party to the encounter is known to be a law enforcement officer. Even physical contact does not transform the encounter into a ‘seizure’ if it is a normal means of attracting a person's attention ( e.g. [,] policeman tapping citizen on the shoulder at the outset to get a citizen's attention). * * * Rather, the encounter is a ‘seizure’ of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse. The pivotal factor is whether the officer * * * has * * * conducted himself [or herself] in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.”

Holmes, 311 Or. at 410, 813 P.2d 28 (citation omitted; emphasis added). With that rubric in mind, we turn to the pertinent circumstances...