State v. Walker

• Decision Date: 13 April 2016
• Docket Number: 12CR00909,A155126.
• Citation: 277 Or.App. 397,372 P.3d 540
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Donald Kirk WALKER, Defendant–Appellant.
• Court: Oregon Court of Appeals

277 Or.App. 397
372 P.3d 540

STATE of Oregon, Plaintiff–Respondent
v.
Donald Kirk WALKER, Defendant–Appellant.

12CR00909
A155126.

Court of Appeals of Oregon.

Submitted April 21, 2015.
Decided April 13, 2016.

372 P.3d 541

Peter Gartlan, Chief Defender, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and HADLOCK, Chief Judge, and TOOKEY, Judge.

372 P.3d 542

HADLOCK, C.J.

277 Or.App. 398

Defendant appeals a judgment of conviction for possession of methamphetamine in violation of ORS 475.894. He raises a single assignment of error on appeal, arguing that the trial court erred when it denied his motion to suppress methamphetamine that a police officer found after he detained defendant to investigate suspected illegal drug activity. Defendant contends that the officer lacked reasonable suspicion of criminal activity and, therefore, acted unlawfully when he stopped defendant. We conclude that the officer had reasonable suspicion. Accordingly, we affirm.

We review the denial of a motion to suppress for legal error, and we are bound by the trial court's implicit and explicit findings of historical fact as long as the record includes constitutionally sufficient evidence to support those findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We state the facts below in keeping with that standard.

Shortly before 12 p.m., “dispatch” told Newberg Police Officer McCowan that a person had called to report a suspected drug deal in a parking lot near George Fox University. The informant gave dispatch his name and telephone number and explained why he believed that a drug deal was in process. The informant said that he had seen a white van driven by a woman pull into the parking lot and a man on a bicycle ride up and get into the van. Once inside the van, the man reportedly reached into his pants, pulled something out that he and the woman looked at while it was in the man's lap, and then the man and woman “were smoking something” in the van. The informant described the van and said that the man who had been on the bicycle was wearing a red sweatshirt and a black hat. Dispatch gave that information to McCowan, who drove to the parking lot in response.

McCowan arrived at the parking lot within a minute or two after receiving the report from dispatch. When he arrived, defendant was still in the van, but he then got out and began walking toward his bicycle; at the same time, the woman in the van drove away. McCowan observed that defendant was wearing a red sweatshirt and a black hat, as the informant had reported. McCowan parked his patrol

277 Or.App. 399

car near defendant and questioned him about what had happened inside the van. Defendant refused McCowan's request to search his person. Ultimately, McCowan learned that defendant was on probation and spoke with a municipal court judge, who ordered McCowan to search defendant. Defendant still refused to consent to the search; he then was arrested by another officer who had arrived at the parking lot. At that point, defendant acknowledged that he had methamphetamine in his pocket.

Defendant was charged with possession of methamphetamine. At the suppression hearing, the state conceded that McCowan had detained defendant at some point prior to the arrest, but it argued that the stop was justified because McCowan reasonably suspected that defendant had been engaged in illegal drug activity.¹ In support of that theory, the state offered evidence of the information that McCowan had received from dispatch, as well as McCowan's own observations of the situation in the parking lot. In addition, McCowan described his training, which included information about “[d]ifferent habits of drug users and people that possess drugs, places they frequent, things like that.” McCowan also testified that, although he had been a police officer for less than two years, he had investigated drug crimes, he was familiar with “the ways and manners in which methamphetamine is used,” and he had encountered “the method of transferring methamphetamine or delivering methamphetamine from one person to another.” McCowan testified that the information he received from dispatch, relaying the informant's observations, was consistent with his experience in “a way a drug deal happens.” He also testified that, when he encountered defendant in the parking lot, he suspected that defendant had been engaged in illegal drug activity.

The trial court denied defendant's suppression motion, concluding that McCowan had reasonable suspicion that justified the stop.

372 P.3d 543

Defendant then waived his right to a jury trial, and the court found him guilty of methamphetamine possession after a stipulated-facts trial.

277 Or.App. 400

On appeal, defendant argues that the trial court erred by denying his suppression motion because the state did not establish that McCowan had reasonable suspicion that defendant was engaged in criminal activity. Defendant acknowledges that McCowan properly could rely on the informant's report because the informant had identified himself, the informant's report was based on his personal observations of what happened in the parking lot, and McCowan's own observations corroborated the informant's report. See State v. Villegas–Varela, 132 Or.App. 112, 115, 887 P.2d 809 (1994) (describing factors that inform the assessment of an informant's reliability). Nonetheless, defendant argues, McCowan “could not reasonably rely on the informant's conclusory statement that he was witnessing a drug deal in forming reasonable suspicion.” The informant's conclusion is not helpful to the reasonable-suspicion calculus, defendant asserts, because the record does not include evidence that the appearance of a drug deal is a matter of common knowledge. Defendant argues that—absent the informant's assertion that he was witnessing a drug deal—the remaining information available to McCowan did not give him reasonable suspicion sufficient to justify his stop of defendant. Defendant concludes that the trial court should have granted his suppression motion because McCowan obtained the methamphetamine at issue as a direct result of the unlawful stop.

In response, the state asserts that “an assessment of all of the circumstances—the informant's report, the officer's own observations, and the officer's training and experience”—establishes that McCowan had reasonable suspicion of criminal activity. We agree with the state.

We begin by reviewing basic principles regarding when police officers may conduct investigatory stops.

“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

277 Or.App. 401

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).

The result in this case turns on a proper understanding of the “reasonable suspicion” standard, that is, what it means for an officer to reasonably suspect that an individual has committed, or is about to commit, a crime. That standard is “less than the standard of probable cause to arrest.” State v. Holdorf, 355 Or. 812, 823, 333 P.3d 982 (2014). Thus, an officer may have “reasonable suspicion” sufficient to justify an investigatory stop of a person even if the officer does not have sufficient reason to believe that it is probable that the person has committed, or is about to commit, a crime. All that is necessary is that the officer reasonably suspect the person of past, current, or imminent criminal activity.

That an officer may briefly detain a person to investigate reasonably suspected criminal activity does not mean, of course, that an officer may interfere with the person's liberty based only on intuition or a hunch. Id.; see State v. Guggenmos, 350 Or. 243, 260, 253 P.3d 1042 (2011) (differentiating an officer's hunch from reasonable suspicion). To prevent officers from interfering with individuals' liberty based on nothing more than the officers' instincts or gut reactions to situations, courts require officers to be able to articulate the “observable facts” that form the basis for their suspicion of criminal activity. Holdorf, 355 Or. at 823, 333 P.3d 982 ; State v. Valdez, 277 Or. 621, 629, 561 P.2d 1006 (1977). The Supreme Court most recently has explained the...