State v. Norton , 270 Or. App. 584 ( 2015 )

FLYNN, J.

Defendant appeals a judgment of conviction for carrying a concealed weapon, ORS 166.240 (Count 1), and felon in possession of a restricted weapon, ORS 166.270 (Count 2). He challenges the trial court’s denial of his motion to suppress evidence found during a patdown search to which he consented. Defendant argues that the officer’s request to search came while defendant was “stopped” in violation of Article I, section 9, of the Oregon Constitution, and that the state failed to prove that the police did not exploit their illegal detention of defendant in violation of his constitutional rights.¹ The state responds only to defendant’s argument that he was unconstitutionally stopped at the time that he gave consent to the search, which led to the discovery of the incriminating evidence. We conclude that the encounter constituted an unlawful stop prior to the consent to search and that the state failed to carry its burden to prove that the evidence is nevertheless admissible. We, accordingly, reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Before discussing the legal standards governing our analysis, we briefly describe the circumstances under which the search occurred, consistent with the trial court’s findings. State v. Ehly, 317 Or 66, 75, 854 P3d 421 (1993). On February 14, 2013, defendant and two male companions stood on a street corner in a high crime area of east Portland. One of defendant’s companions started to cross the street against the light just as Portland Police Officers Lemons and Hamby drove by. The officers pulled into a driveway near defendant’s group, and, while Hamby took the companion aside to discuss the jaywalking, Lemons stood nearby as a cover officer. Defendant began a conversation with Lemons in which he described a citation he had recently received for jaywalking. Within a few minutes, a second police car arrived with two more officers, one of whom—Officer Edwards—was the officer who had issued defendant the recent jaywalking citation. Edwards and Lemons briefly discussed Edwards’s knowledge of and prior contact with defendant, and then Lemons walked away to run a records check on defendant.

While Lemons was away, defendant initiated a “terse” conversation with Edwards in which defendant accused Edwards of being “unfair” during the citation incident. Edwards used a “firm” tone to explain why defendant had received the citation and warned defendant that his behavior needed “to change so he doesn’t get arrested.” Edwards also told defendant that he had two years to look at the jaywalking incident and, “[i]f I wanted to arrest him, then I had that ***.” Meanwhile, Lemons learned that defendant had a history of drug and weapons charges and, due to that information, recontacted defendant to ask if defendant had any drugs or weapons on him. Defendant responded that he had a knife, which prompted Lemons to request consent for a patdown search. Lemons retrieved the knife from the pocket in which defendant said it could be found; the knife was the basis for the charges of carrying a concealed weapon, ORS 166.240, and felon in possession of a restricted weapon, ORS 166.270.

Prior to trial, defendant moved to suppress all evidence, including the knife, as derived from a “warrantless, unlawful stop, seizure, search and arrest of Defendant” in violation of Article I, section 9. The trial court reasoned that “whether this motion is granted or denied ultimately turns on *** who initiated contact with whom ***.” It viewed that as a “close question” but ultimately denied defendant’s motion based on the following findings:

“*** I find, based on everything I heard, that it’s more probable than not that in fact [defendant] initiated contact with these two officers to express [his] upset and concern over the prior jaywalking incident. I find it’s also more probable than not that [defendant] stayed on scene because [he’s] with two folks [he was] close to and [defendant] wanted to see how that was likely to play out with the one fellow who was being cited.

* * * *

“I will add there was one other finding I wanted to make, which is the fact that [defendant] did testify that * * * [he did not] recall that well the events in dispute * *

Defendant entered into a conditional plea of guilty to both of the charged offenses, reserving his right to seek review on appeal of the denial of the suppression motion, as permitted by ORS 135.335(3).

ANALYSIS

Article I, section 9, protects the rights of individuals against unreasonable government searches and seizures.² In order to give effect to that constitutional protection, “evidence from a search following an otherwise valid consent is subject to suppression under the Oregon exclusionary rule if the defendant’s consent is the product of preceding unlawful police conduct.” State v. Hall, 339 Or 7, 36, 115 P3d 908 (2005). “That is so because ‘the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if “the government’s officers had stayed within the law.’”” State v. Jackson, 268 Or App 139, 143, 342 P3d 119 (2014) (quoting Hall, 339 Or at 24 (quoting State v. Davis, 295 Or 227, 234, 666 P2d 802 (1983))). Therefore, “[w]here [a] motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.” ORS 133.693(4); State v. Sargent, 323 Or 455, 461, 918 P2d 819 (1996); see also State v. Ordner, 252 Or App 444, 447, 287 P3d 1256 (2012), rev den, 353 Or 280 (2013) (the state has the burden of proving the lawfulness of a warrantless traffic stop) (citing Sargent, 323 Or at 461).³

Here, as in cases like Hall, 339 Or at 40, and State v. Unger, 356 Or 59, 87-88, 333 P3d 1009 (2014), the state relies upon the “legally valid consent” exception to warrantless searches. Unger establishes that the inquiry into suppression of evidence related to a consent search involves three “overlapping issues”:

“(1) whether the initial stop or search was lawful; (2) whether the defendant’s consent to the subsequent search was voluntary; and (3) assuming that the initial stop or search was unlawful and the consent to the subsequent search was voluntary, whether the police exploited the illegality to obtain the disputed evidence.”

356 Or at 70-71. When a defendant consents to a search during the course of an unlawful seizure, the state bears the burden of demonstrating both that the consent to search was voluntary and that “the voluntary consent was not the product of police exploitation of the illegal stop or search.” Id. at 75. Here, defendant contends that his consent to search was the product of an unlawful stop. The state, as it did in the trial court, disputes only the assertion that defendant was seized within the meaning of Article I, section 9, before the search, and that is the only issue we decide.⁴

The Supreme Court has emphasized that encounters between law enforcement and citizens are of an “infinite variety,” of which “only some” trigger the Article I, section 9, prohibition against unreasonable seizures. State v. Backstrand, 354 Or 392, 398, 313 P3d 1084 (2013) (citations and quotation marks omitted). “ ‘ [T] emporary detentions for investigatory purposes, often termed “stops,”’” are a seizure for constitutional purposes and generally require reasonable suspicion. Id. at 399 (quoting State v. Fair, 353 Or 588, 593-94, 302 P3d 417 (2013)). The test for whether an encounter between law enforcement and a citizen is a “seizure” is whether “a reasonable person [would] believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.” Id. (citing State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010)). The inquiry into whether a seizure has occurred is fact specific and based on the “totality of the circumstances in the particular case.” Hall, 339 Or at 18 (citation omitted).

The trial court agreed with the state that defendant was not stopped before the search. Although we defer to the trial court’s express and implied findings if supported by constitutionally sufficient evidence, Ehly, 317 Or at 75, “we must assess independently whether those findings support the trial court’s legal conclusion,” Hall, 339 Or at 17 (citing Ehly). The trial court reasoned that whether defendant was stopped turned on “who initiated contact with whom” and found that defendant initiated both the conversations with Lemons and Edwards. Those findings, however, do not dispose of the stop inquiry because, after defendant initiated the conversations with Lemons and Edwards, the nature of the encounter continued to evolve. As circumstances develop, an encounter can shift from an ordinary police-citizen encounter to a seizure. See, e.g., Ehly, 317 Or at 79 (where the defendant searched through bags at request of the officers, interaction rose to seizure when officer put her hand on her gun and ordered the defendant to step away from the bags); Hall, 339 Or at 19 (initial noncoercive encounter where the officer stopped his vehicle next to the defendant and gestured for him to approach evolved into a seizure as the officer began to investigate the defendant by taking the defendant’s identification card and conducting a warrant check).

Here, after defendant began the conversation with Edwards, several developments coalesced to convert the encounter into one in which a reasonable person would believe that the officers were intentionally and significantly restricting defendant from leaving until Lemons’s investigation was complete. First, Edwards lectured defendant in a “very firm” manner about his “‘behavior [,]’ what could have happened [,] and how it needs to change so he doesn’t get arrested.” He also warned defendant that, “[i]f I wanted to arrest him, then I had that, but I didn’t say I had a hold on him. I didn’t say he couldn’t—prohibit him from doing anything. I had two year—two years to look at the case. It’s the [s]tatute of [1] imitations.” Edwards testified that he did not use body language that would convey an intention to arrest defendant or to intimidate him so that he would not feel free to leave, and we do not hold that a conversation of that nature necessarily conveys the idea that a person subjected to such a lecture is not free to walk away. The warnings from Edwards, however, are a key part of the “totality of the circumstances.” See Ehly, 317 Or at 76 (the officer’s tone can have a coercive effect); cf. Jackson, 268 Or App at 149 (concluding that the defendant was stopped when the officer made “a direct and unambiguous accusation” that the defendant had committed a traffic violation and wanted to talk to him about it). Inherent in Edwards’s assertion of authority to arrest defendant was the implication that defendant had previously committed jaywalking or some other offense for which he could still be held criminally liable.

Edwards’s warnings also set the tone for the rest of the encounter when Lemons “recontacted” defendant. At that point, the attention of two officers was focused directly on defendant with two other officers in the immediate area. Moreover, defendant knew that he had already provided Lemons with the information from which his criminal background—including a felony conviction—could be determined.⁵ Although “something more than just asking a question, requesting information, or seeking an individual’s cooperation” is needed to elevate an ordinary police-citizen encounter to a seizure, a request coupled with other circumstances can elevate the encounter to the level of a seizure, such as when “the content or manner of questioning, or the accompanying physical acts by the officer *** would reasonably be construed as a ‘threatening or coercive’ show of authority requiring compliance with the officer’s request.” Backstrand, 354 Or at 403 (quoting Ashbaugh, 349 Or at 317).

Here, those additional circumstances that suggest an exercise of authority to coercively detain defendant include that Lemons approached defendant while Edwards was still lecturing him and asked a question that suggested an investigation of possible criminal activity. See State v. Rodriguez-Perez, 262 Or App 206, 211-12, 325 P3d 39 (2014) (holding circumstances were sufficiently coercive to constitute a seizure when two officers approached defendant and his brother, told them that they suspected the men of being too young to possess the beer they were carrying, and asked for identification). The nature of the encounter was also shaped by the fact that Lemons’s investigatory question and request to search came immediately after Edwards had warned defendant that he could be arrested if he did not modify his “behavior.” In their totality, the circumstances here reasonably would be “construed as a ‘threatening or coercive’ show of authority requiring compliance with the officer’s request”; a reasonable person would not feel free to ignore the questions and simply walk away. See also State v. Rodgers/Kirkeby, 347 Or 610, 626, 227 P3d 695 (2010) (concluding that the defendant, who was asked following a completed traffic stop whether he possessed any weapons and would agree to permit a patdown, “had no way of knowing that [the] questions and request to search the car were not part of the traffic investigation and that his cooperation in [the] investigation was not required to continue”). We agree with the trial court that this encounter presents a “close question [,]” but conclude that, under the totality of the circumstances, the encounter escalated to a stop by the time Lemons questioned defendant about possession of weapons or drugs.

Our determination that defendant was seized for purposes of Article I, section 9, means that the evidence must be suppressed unless the state proves “that the consent was voluntary and was not the product of police exploitation of that illegality.” State v. Musser, 356 Or 148, 150, 335 P3d 814 (2014) (citing Unger, 356 Or at 74-75). Because the state made no effort before the trial court (or on appeal) to demonstrate that the evidence obtained during the unlawful stop is nevertheless admissible, we reverse the denial of defendant’s motion to suppress. See State v. Rider, 216 Or App 308, 315, 172 P3d 274 (2007), rev dismissed, 345 Or 595 (2008) (concluding that the defendant’s consent was the unattenuated product of the unlawful stop because the state advanced no argument that some fact or circumstance severed the causal connection between the stop and the defendant’s consent).

Reversed and remanded.

1 Defendant does not contend that the state failed to prove defendant voluntarily consented to the search. See State v. Hall, 339 Or 7, 20,115 P3d 908 (2005) (“[A]s a threshold matter in any case in which the state relies upon a defendant’s consent to validate a warrantless search, the state must prove by a preponderance of the evidence that the defendant’s consent was voluntary.” (Emphasis in original.)).

2 Article I, section 9, provides, in pertinent part, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure [.]”

3 By contrast, when the police have acted under the authority of a warrant, the burden is on the defendant to prove the unlawfulness of a search or seizure. State v. Walker, 350 Or 540, 553, 258 P3d 1228 (2011) (citations omitted).

4 The narrow focus of the state’s argument means that we are not called upon to decide whether—if defendant was stopped—the state proved the stop was lawful based on reasonable suspicion, or some other justification, or whether the state proved defendant’s consent was not the product of exploitation of an unlawful stop.

5 The testimony was in conflict regarding whether Lemons took defendant’s identification or simply asked for and remembered defendant’s name and date of birth. The trial court’s ruling does not imply a finding on this issue one way or the other, but the issue is ultimately not dispositive.