State v. Turner

• Decision Date: 13 August 2008
• Docket Number: 051052782; A131309.
• Citation: 221 Or. App. 621,191 P.3d 697
• Parties: STATE of Oregon, Plaintiff-Respondent, v. James M. TURNER, Defendant-Appellant.
• Court: Oregon Court of Appeals

191 P.3d 697

221 Or. App. 621

STATE of Oregon, Plaintiff-Respondent, v. James M. TURNER, Defendant-Appellant.

051052782; A131309.

Court of Appeals of Oregon.

Argued and Submitted February 21, 2008.

Decided August 13, 2008.

Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief were Ingrid Swenson, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Samuel A. Kubernick, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Michael C. Livingston, Senior Assistant Attorney General.

Before HASELTON, Presiding Judge, and ROSENBLUM, Judge, and NELSON, Judge pro tempore.

ROSENBLUM, J.

Defendant appeals his conviction for carrying a concealed weapon, namely, a ninja sword. ORS 166.240.¹ The issue on appeal is whether the officer stopped defendant without reasonable suspicion to believe that defendant was carrying a concealed weapon. We review the trial court's denial of the motion to suppress for errors of law, State v. Woodall, 181 Or.App. 213, 217, 45 P.3d 484 (2002), and conclude that, having seen a sufficient portion of the ninja sword to identify it as a sword, the officer did not reasonably suspect that it was "concealed" within the meaning of ORS 166.240. His stop of defendant was therefore unlawful, and the trial court erred in denying defendant's motion to suppress a second sword uncovered during the ensuing search. Accordingly, we reverse defendant's conviction.

The facts are not in dispute. Defendant was riding his bicycle in a Critical Mass rally intended to promote bicycling as an alternative means of transportation. Officer Simon was assigned to patrol the rally on bicycle. During the rally, Simon rode next to defendant and saw "three to four inches" of a sword handle wedged between defendant's back and his backpack. Simon testified that, based on his training and experience, there was no doubt in his mind that the object was a "sword or [something] similar."

Simon asked defendant, "What's sticking out of your neck?" Defendant replied that it was a "ninja sword." Simon motioned for him to pull over, and defendant complied. After defendant stopped, Simon removed the sword, which was sheathed, from between defendant's body and his backpack.² As he removed it, he discovered the sword was contained in a "double sheath, where one sword goes in one end, one in the other." At the time Simon removed the first sword, he had not seen and was not aware of the second sword. He arrested defendant for carrying a concealed weapon based on his discovery of the second sword.

Defendant moved to suppress evidence of the second sword under Article I, section 9, of the Oregon Constitution. Defendant argued, among other things, that Simon lacked reasonable suspicion to "stop" him. See ORS 131.605(6) (defining a "stop" as a "temporary restraint of a person's liberty"); State v. Warner, 284 Or. 147, 161, 585 P.2d 681 (1978) (explaining that an officer may arrest a person if justified by probable cause and stop a person if justified by reasonable suspicion). The state contended that Simon and defendant had engaged in mere conversation until Simon discovered the second sword. See id. (questioning without any restraint of liberty is a "mere encounter" requiring no justification). At trial, the state did not argue that Simon had reasonable suspicion to believe that defendant was carrying a concealed weapon based on Simon's observation of the first sword. Rather, the state contended only that Simon motioned defendant to pull over "because he was concerned for public safety" and that, once Simon discovered the second sword, he had probable cause to believe that defendant had committed the crime of carrying a concealed weapon and therefore to arrest him.

After hearing testimony from Simon and defendant, the court declined to suppress evidence of the second sword. It concluded that Simon asking defendant "[w]hat's sticking out of your neck?" was "mere conversation" so that Simon did not need reasonable suspicion to initiate the encounter. The trial court also ruled that, even if the encounter rose to the level of a "stop" before Simon discovered the second sword, Simon had reasonable suspicion that the object he saw between defendant's back and backpack was a "sword and could present a safety danger to himself or others." See ORS 131.615(1) (officer may stop a person and make reasonable inquiry if the officer "reasonably suspects that a person has committed or is about to commit a crime"). The trial court did not explicitly find that Simon had reasonable suspicion to believe the first sword was concealed. The court found defendant guilty of carrying a concealed weapon.

On appeal, defendant argues that the court erred in concluding that Simon's encounter with him did not constitute a stop. Defendant further contends that Simon lacked reasonable suspicion to believe that he had committed or was about to commit a crime and that the stop was therefore unlawful. The state, "assuming, but not conceding, that the encounter between the officer and defendant constituted a `stop,'" responds that Simon possessed reasonable suspicion that defendant was carrying a concealed weapon in violation of ORS 166.240.

We begin by considering whether Simon stopped defendant before he discovered the second sword. A stop occurs under Article I, section 9, of the Oregon Constitution when a police officer temporarily restrains a person's liberty. State v. Holmes, 311 Or. 400, 406-07, 813 P.2d 28 (1991). To determine whether a person has been stopped, we consider "the totality of the circumstances surrounding the encounter to determine whether the officer has intentionally and significantly interfered with the defendant's liberty, or whether the defendant, in an objectively reasonable manner, believes that his or her liberty has been restricted." State v. Highley, 219 Or.App. 100, 105, 180 P.3d 1230 (2008) (citing Holmes, 311 Or. at 408-10, 813 P.2d 28).

We agree with the trial court that Simon had not stopped defendant when he asked, "What's sticking out of your neck?" The trial court erred, however, by concluding that Simon did not stop defendant when he motioned for him to pull over. "[A]n officer's conduct may significantly interfere with an individual's liberty and freedom of movement," and therefore constitute a stop, "if the individual is forced to alter his course of conduct or is summoned away from a task." State v. Crandall, 197 Or.App. 591, 595, 108 P.3d 16 (2005), rev'd on other grounds, 340 Or. 645, 136 P.3d 30 (2006); State v. Johnson, 105 Or.App. 587, 590-91, 805 P.2d 747 (1991) (defendant was stopped by a show of authority when officers summoned him for questioning). Here, defendant's liberty was significantly restricted when Simon, a uniformed officer, directed him to pull over. Defendant testified that he did not believe that he was free to leave and that he altered his course of travel to comply with Simon's direction. A person traveling on a bicycle in an organized rally could reasonably have believed that he was not free to continue after being questioned by an officer and then directed to alter his course. See State v. Toevs, 327 Or. 525, 535, 964 P.2d 1007 (1998) (whether a stop has occurred depends, in part, on whether a person in the defendant's circumstance could reasonably have felt that he was not free to leave); State v. Puffenbarger, 166 Or.App. 426, 998 P.2d 788 (2000); see also ORS 814.400(1) ("Every person riding a bicycle upon a public way is subject to the provisions applicable to and has the same rights and duties as the driver of any other vehicle concerning operating on highways."); ORS 811.535 (a driver who fails to obey a police officer commits a Class B traffic violation). The state does not argue otherwise. Accordingly, we conclude that Simon stopped defendant when he motioned for him to pull over.

Under Article I, section 9, a stop must be justified by the officer's reasonable suspicion that a person has committed or is about to commit a crime. See ORS 131.615(1) (codifying constitutional standard). The trial court made no findings regarding whether Simon possessed reasonable suspicion to believe that defendant was carrying a concealed weapon.³ We presume, however, that the trial court made implicit findings consistent with its denial of defendant's motion. Accordingly, we next consider whether Simon possessed an objectively reasonable belief that defendant was violating ORS 166.240. The objective reasonableness of Simon's belief turns on whether the sword viewed by Simon was "concealed" within the meaning of the statute.⁴

ORS 166.240 provides, in part, that "any person who carries concealed upon the person * * * [an] instrument by the use of which injury could be inflicted upon the person or property of any other person, commits a Class B misdemeanor." Defendant contends that Simon lacked reasonable suspicion to believe that the sword was concealed because he could identify it as a sword and because defendant openly acknowledged what it was when asked. Despite the fact that Simon could see the handle and identify the object as a sword, the state argues that the weapon was nevertheless "concealed." In the state's view, a weapon can be "concealed" even though part of it is visible.

No Oregon statute defines what it means to carry a weapon "concealed upon the person." The plain and ordinary meaning of "conceal" is "to prevent disclosure or recognition of." Webster's Third New Int'l Dictionary 469 (unabridged ed. 2002). Thus, the object need not be completely hidden from view.

Even if a weapon is recognizable, probable cause or reasonable suspicion that a person has violated a concealed weapons statute may arise if the officer observes evidence of an unsuccessful attempt "to prevent disclosure or...