State v. Williams

• Decision Date: 14 November 2001
• Citation: 35 P.3d 1088,178 Or. App. 52
• Parties: STATE of Oregon, Appellant, v. Shawneel L. WILLIAMS, Respondent.
• Court: Oregon Court of Appeals

35 P.3d 1088

178 Or. App. 52

STATE of Oregon, Appellant, v. Shawneel L. WILLIAMS, Respondent.

C 99-10-51436; A109409

Court of Appeals of Oregon.

Argued and Submitted July 31, 2001.

Decided November 14, 2001.

Laura S. Anderson, Assistant Attorney General, argued the cause for appellant. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Laura Frikert, Deputy Public Defender, argued the cause for respondent. With her on the brief was David Groom, Oregon Public Defender.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P.J.

In this prosecution for criminal trespass in the second degree, ORS 164.245(1), the state appeals from a pretrial order suppressing evidence of an administrative order excluding defendant from a prostitution-free zone and from the ensuing order of dismissal. ORS 138.060(1), (3). We conclude that the order excluding defendant from the prostitution-free zone was lawfully issued and that the trial court erred in suppressing that evidence. Consequently, we reverse.

The material facts are undisputed. At 1:00 p.m. on October 7, 1999, Portland Police Officer Duddy was on duty near the intersection of Northeast 85th Avenue and Sandy Boulevard, a high vice area located in a prostitution-free zone. Duddy was a highly experienced vice officer who had worked in prostitution enforcement for most of his 13 year career in law enforcement. Duddy had participated in between 2,000 and 3,000 prostitution investigations and had coordinated all prostitution enforcement activities for Portland's Southeast precinct.

Duddy saw defendant sitting at a bus shelter near the intersection. Because that particular bus shelter was often used by prostitutes waiting for potential clients,¹ defendant's presence there aroused Duddy's suspicion that she was engaging in prostitution. Consequently, Duddy parked his car in the Grotto parking lot across the street and began watching defendant.

As he watched, Duddy noticed that defendant was looking at passing traffic and was trying to make eye contact with drivers as they passed the bus stop. Duddy further observed that, every time a car turned northbound onto 85th Avenue, defendant would turn to see if the car pulled into the parking lot behind her. Finally, after about 10 minutes, Duddy saw a red Mazda pull into the Grotto parking lot west of where Duddy was parked. The driver of the car looked over at defendant, and defendant walked over to, and climbed into, the car. In Duddy's experience those events were consistent with prostitution activities.² Consequently, Duddy stopped the car based on his suspicion of prostitution activities.

Duddy spoke with both the driver and defendant. Duddy asked the driver if he knew defendant, and the driver answered that defendant was a friend. Duddy then took defendant to the back seat of his car, where he explained to her that he had been watching her. Duddy then told defendant: "I don't want you working out here,"³ to which defendant responded, "Yeah. Okay. I'll leave." Duddy regarded defendant's response as an admission that she was working as a prostitute. Duddy also asked defendant if she knew the driver of the Mazda, and defendant responded that she did not.

At that point, Duddy arrested defendant for unlawful prostitution procurement activity, PCC 14.24.055,⁴ and served her with a Notice of Exclusion excluding her from all Portland prostitution-free zones for a period of 90 days. PCC 14.150.030 A.⁵ The notice of exclusion, which defendant signed and acknowledged she understood, stated, in part:

"On 10-7, 1999 at approximately 1:00 pm, you were arrested in the City of Portland in a Prostitution Free Zone for one of the following offenses: * * * Unlawful Prostitution Procurement Activity, in violation of Portland City Code 14.24.055. Pursuant to the authority granted under Portland City Code Chapter 14.150, you are hereby initially excluded for a period of ninety (90) days from entering or remaining in any Prostitution Free Zone.

"* * * * *

"Appeal of* * *exclusion* * *must be filed within seven (7) calendar days of receipt of the initial 90 day exclusion[.]"

After serving defendant with the notice, Duddy told defendant that she was no longer under arrest, and released her. Thereafter, defendant did not seek administrative review of the exclusion order pursuant to PCC 14.150.060 (affording "any person" to whom an administrative exclusion order is issued five business days in which to seek review of the exclusion).

On October 20, 1999, Duddy saw defendant within a prostitution-free zone in violation of the exclusion order and arrested her, charging her with criminal trespass in the second degree. ORS 164.245(1). Before trial, defendant moved in limine to suppress evidence of her exclusion from the prostitution-free zone, including the exclusion order. Defendant argued, principally, that the exclusion order was unlawful because: (1) PCC 14.150.030 "authorizes exclusion only upon a lawful arrest"; and (2) Duddy's arrest of defendant was not lawful in that the "facts, as reported by Officer Duddy, do not support an objectively reasonable finding of probable cause" that defendant was engaged in prostitution activities. Defendant alternatively asserted that Duddy's initial stop of defendant was unsupported by reasonable suspicion and that the subsequent arrest and issuance of the exclusion order were tainted by that alleged prior illegality.

In response, the state argued that defendant could not collaterally attack the lawfulness of the prior exclusion order in the context of a prosecution for criminal trespass. The state further contended that, even if such a collateral attack were cognizable, defendant's challenge failed on the merits because the stop was supported by reasonable suspicion and the arrest and concomitant issuance of the exclusion order were supported by probable cause.

The trial court granted defendant's motion. The court first concluded that defendant's collateral challenge to the exclusion order was cognizable in this criminal prosecution.⁶ The court further concluded, as to the merits, that: (1) Duddy had reasonable suspicion to stop defendant; but (2) Duddy did not have probable cause to arrest defendant for prostitution procurement activities or, relatedly, to exclude her from the prostitution-free zone. See PCC 14.150.030 (requiring that a person can be excluded from a prostitution-free zone only if he or she "has been arrested or otherwise taken into custody within any prostitution-free zone"). Because the state could not proceed to trial without the excluded evidence, the trial court dismissed the case.

On appeal, as before the trial court, the state argues that a collateral challenge to the exclusion order is not cognizable in this context. In that connection, the state vigorously asserts that our recent decision in State v. Riddell, 172 Or.App. 675, 21 P.3d 128, rev. den. 332 Or. 430, 30 P.3d 1183 (2001), which sustained a similar challenge, is wrong and must be overruled. Beyond that, the state reiterates its arguments as to the lawfulness of the stop and subsequent arrest and issuance of the exclusion order. Conversely, defendant, invoking Riddell, defends the trial court's determination that the issuance of the exclusion order was invalid because there was no probable cause for the underlying arrest and—as an alternative basis for affirmance—attacks the lawfulness of the initial stop.

At the outset, we decline the state's invitation to revisit Riddell in this context. However, as amplified below, we conclude that there was probable cause for the arrest and consequent issuance of the exclusion order. Moreover, we reject defendant's alternative arguments pertaining to the lawfulness of the initial stop. We therefore conclude that the trial court erred in suppressing evidence of defendant's exclusion.

For analytical cogency, we begin with the stop. Defendant argues that Duddy's stop of the red Mazda (and defendant) was not supported by reasonable suspicion. See ORS 131.615(1) (peace officer may stop a person whom the officer reasonably suspects has committed or is about to commit a crime). In State v. Ehly, 317 Or. 66, 80, 854 P.2d 421 (1993), the court summarized the reasonable suspicion inquiry under ORS 131.615:

"The statutory standard for the stopping and questioning of a person concerning his or her possible criminal activity was intended to be less than the standard for probable cause to arrest. The standard is reasonable suspicion, and it requires an objective test of observable facts. Whether the suspicion is reasonable often will depend on the inferences drawn from the particular circumstances confronting the officer, viewed in the light of the officer's experience. If a police officer is able to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime, the officer has `reasonable suspicion' and hence may stop the person for investigation." (Citations and footnotes omitted.)

That inquiry has both a subjective and objective component: The officer must subjectively believe that the person stopped has committed a crime, and that belief must be objectively reasonable. State v. Belt, 325 Or. 6, 11, 932 P.2d 1177 (1997).

Here, there is no dispute that Duddy actually suspected that defendant was engaged in prostitution procurement activities in violation of PCC 14.24.055. Thus, we turn to the information known to Duddy when he stopped defendant to assess whether that suspicion was objectively reasonable. Belt, 325 Or. at 13, 932 P.2d 1177 (analyzing whether the "information known by the officer" supported the officer's suspicion that the defendant had committed the crime of solicitation).

Before stopping defendant and the driver of the car, Duddy observed defendant in a high vice/prostitution area sitting at a bus stop commonly used by prostitutes. During...