State v. Williams

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Joshua John WILLIAMS, Defendant–Appellant.
• Citation: 351 P.3d 791,271 Or.App. 481
• Docket Number: A153175.,120950864
• Court: Oregon Court of Appeals
• Decision Date: 03 June 2015

271 Or.App. 481

351 P.3d 791

STATE of Oregon, Plaintiff–Respondent

v.Joshua John WILLIAMS, Defendant–Appellant.

120950864

A153175.

Court of Appeals of Oregon.

Submitted Oct. 28, 2014.

Decided June 3, 2015.

Peter Gartlan, Chief Defender, and Elizabeth Daily, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Senior Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

Opinion

DeVORE, J.

In this criminal case, defendant appeals a judgment of conviction for misdemeanor driving while suspended, ORS 811.182. He assigns error to the denial of his motion to suppress and the denial of his motion for judgment of acquittal on the question of venue. Defendant argues that the evidence of his suspended license was discovered only after he was unlawfully stopped. Because we conclude that the trial court explicitly failed to resolve disputed facts that are essential to determining whether the court erred by denying defendant's suppression motion, we vacate and remand. As to venue, the state concedes error to the extent that it urges that we remand to allow defendant to contest venue consistent with State v. Mills, 354 Or. 350, 312 P.3d 515 (2013). To that extent, we agree.

In reviewing a trial court's denial of a motion to suppress, we are bound by the trial court's findings of historical fact if supported by evidence in the record. State v. Hall, 339 Or. 7, 10, 115 P.3d 908 (2005). In the absence of express findings, we ordinarily presume that the trial court resolved factual disputes consistently with its ultimate decision. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). In this case, however, the trial court explicity did not resolve disputed facts of defendant's interaction with the police. Instead, it assumed defendant's version arguendo and decided that no stop occurred and thus, that there was no constitutional violation.

On September 3, 2012, Portland Police Officers Macho and Kerwin were patrolling the east precinct of Multnomah County in uniform and driving an unmarked police vehicle. They passed defendant, who was driving the opposite direction, and turned around to follow him because he looked nervous. Macho testified that he observed defendant commit a traffic violation when his car briefly left its lane of travel and entered the oncoming- traffic lane. Kerwin did not see the violation. Defendant turned into a gas station, parked next to the gas pump, and got out of his vehicle, heading toward the station's building entrance. The officers pulled in behind defendant, but did not block defendant's vehicle or activate their lights.

The officers' testimony regarding the encounter differed from defendant's testimony in significant ways. Kerwin testified that she approached defendant and said, “Hey, can I talk to you for a second?” Defendant replied, “Sure, what's up?” and walked back toward her. Macho testified that they “chatted” with defendant for awhile, and he told defendant “he was not legally stopped, that we just needed to—we just wanted to talk to him” and defendant responded that he understood. Both officers testified that they did not mention the traffic violation, tell defendant he was not free to leave, or state that they were investigating criminal activity. Eventually, the officers asked defendant for his identification, which he did not have. Instead, he provided his name and date of birth. While Macho continued speaking with defendant, Kerwin checked his information on the police database and discovered that defendant's driver's license was “misdemeanor suspended.” The officers placed defendant under arrest. In his report, Macho did not mention the traffic violation that he had observed. However, he testified that, if defendant had not consented to speak with them, he would have stopped him for the traffic violation.

Defendant testified that he had noticed the officers following him prior to turning into the gas station. Defendant recalled that, after he got out of his car and started walking toward the gas station building, Kerwin said, “Hey, you, stop.”¹ Defendant replied, “Did I do something wrong?” and Kerwin responded, “Yes, you can't turn like that.” Defendant testified that he waited because he believed he was being investigated. Kerwin then asked defendant for his license and insurance. Defendant testified that the officers never actually told him that they had stopped him for a traffic violation or that they were going to write him a ticket, but also that they never told him he was free to go. When asked if he was aware that Kerwin was verifying his identification, defendant testified, “Yeah, because they said they were just going to let me go, and that's when they ran my name, and she said they have to place me under arrest.” Defendant was arrested for misdemeanor driving while suspended or revoked.

Before trial, defendant moved to suppress the evidence of his identification, arguing that his encounter with the officers constituted an unlawful seizure under Article I, section 9, of the Oregon Constitution. Defendant argued that a reasonable person would not have felt free to leave under the totality of the circumstances, because the officers had followed him into the gas station, pulled in behind him, told him to stop, and informed him that he had committed a traffic violation. Defendant also argued that Macho's statement to defendant that he was “not legally stopped,” would not convey to defendant, under the circumstances, that he was free to leave. The trial court denied the motion. In ruling, the court appears to have concluded that, even under defendant's version of the encounter, defendant was not stopped for Article I, section 9 purposes. The court explained,

“[I] find that under the totality of the circumstances, a reasonable person would [have felt] free to go, and that the officers' conduct in this case was as described, even as described by [defendant], is one that did not create a stop.”

The trial court did not expressly reconcile the differing accounts or make any credibility findings regarding the officers' or defendant's testimony. Given the court's reference to defendant's account, we understand, contrary to our usual practice, that the court did not resolve or consider it necessary to reach the points of disagreement in witness accounts.

Following the ruling, the parties stipulated to adopt the testimony from the suppression motion for the purposes of trial. Defendant then moved for a judgment of acquittal on the ground that the state had failed to prove venue. The trial court denied the motion and found defendant guilty of driving while suspended.

On appeal, defendant argues that the trial court erred in ruling that he was not seized under his version of events. In defendant's view, the order from Kerwin to “stop,” her statement that he “can't turn like that,” and her subsequent request for defendant's license and insurance were sufficient to create an impression in the mind of a reasonable person that defendant was not free to go about his normal affairs.

The state responds that, even under defendant's version of the encounter, he was not seized. The state notes that defendant's testimony was inconsistent regarding what Kerwin initially said to him—whether it was “Hey, you” or “Hey, you, stop”—and contends that Kerwin's request for identification did not transform the encounter into a stop. The state asserts that Kerwin's statement that defendant had committed an improper turn did not establish a stop because defendant testified that the officers told him they were going to let him go. Finally, as an alternative basis for affirmance, the state argues that if defendant was stopped, then the stop was supported by probable cause to investigate the center-line violation Macho observed.

For the reasons described below, we conclude that, under defendant's version of the encounter, the officers' encounter with defendant was a stop. Because defendant's version of the encounter could provide a basis for suppressing the evidence if probable cause were lacking at that time, factual findings on this issue remain unresolved, and we must remand to the trial court for a determination in the first instance.

Article I, section 9, of the Oregon Constitution guarantees individuals the right to be “secure in their persons * * * against unreasonable search, or seizure.” At issue here is whether the encounter between defendant and the officers preceding his arrest was “mere conversation”—a noncoercive encounter that is not a seizure and requires no justification under Article I, section 9 —or was in fact a “stop”—a temporary restraint on a person's liberty that, unless justified, violates Article I, section 9. State v. Ashbaugh, 349 Or. 297, 308–09, 244 P.3d 360 (2010). Not all encounters between police and public are seizures. To reach a constitutionally significant dimension, the officer must add to the inherent pressures of a citizen-police encounter “by either physically restraining the citizen's liberty in a significant way or engaging in a ‘show of authority’ that, explicitly or implicitly, reasonably conveys to the person a significant restriction on the person's freedom to terminate the encounter or otherwise go about his or her ordinary affairs.” State v. Anderson, 354 Or. 440, 450, 313 P.3d 1113 (2013) (citing State v. Backstrand, 354 Or. 392, 402, 313 P.3d 1084 (2013) ). A person is seized under Article I, section 9, if an officer explicitly or implicitly conveys to the person, “either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs.” Backstrand, 354 Or. at 392, 313 P.3d 1084. Whether an officer's conduct amounts to a stop is a fact-specific question, resolution of which requires an examination of the...