State v. Williams
State v. Williams
Opinion of the Court
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 P3d 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 P3d 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 P2d 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.
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.”
“[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.
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 P3d 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 P3d 1113 (2013) (citing State v. Backstrand,
We have previously held that an officer stops a person when the officer communicates to them that they are “conducting an investigation that could result in the person’s citation or arrest at that time or place.” State v. Morfin-Estrada, 251 Or App 158, 164, 283 P3d 378, rev den, 352 Or 565 (2012); see also State v. Zaccone, 245 Or App 560, 567, 261 P3d 1287 (2011), rev den, 355 Or 381 (2014) (where the sequence of events allowed an inference that the “defendant was the subject of a continuing investigation,” a reasonable person “would believe that his or her freedom of movement had been significantly restricted by [the officer’s] show of authority”). In Morfin-Estrada, an officer on patrol observed the defendant and another man cross a street against the traffic light, a traffic violation. 251 Or App at 160. After a brief exchange, the officer told the men that he had seen them cross the street against the traffic light, and, soon thereafter, the defendant consented to a patdown search for weapons, which revealed a dagger. On appeal of the denial of his motion to suppress the evidence of the dagger, we explained that a stop occurs when an officer tells a person that the person has committed a violation or crime. Id. at 165. We emphasized our reasoning from a similar case, noting “[T]he officer began the encounter by telling [the defendant] that he had just seen him break the law. An ordinary citizen, faced with such a statement by a uniformed police officer, would not believe that he or she was free to leave.” Id. (quoting State v. Terhear/Goemmel, 142 Or App 450, 459, 923 P2d 641 (1996)).
The same is true in this case. Defendant testified that Kerwin called out to him while he was walking away from his car, informed defendant that he had made an improper turn, and asked for his driver’s license and insurance. We reject the state’s assertion that the officer was merely suggesting that defendant had done something improper or unwise that did not rise to the level of asserting a violation. Given the circumstances, which include following defendant into the station, pulling in behind him, and intercepting him on his way into the gas station building, the subsequent statement that defendant had turned improperly, followed by the request for identification and insurance, would be understood by a reasonable person in defendant’s position to mean that he was being investigated for a traffic violation and “was not free to leave until [the officer] either gave him a citation or indicated that he was free to go.” Morfin-Estrada, 251 Or App at 166.
We reject the state’s argument that the characterization of a stop was avoided by defendant’s remark that “they said they were just going to let me go, and that’s when they ran my name[.]” First, it is unclear when the officer’s statement occurred. See Jackson, 268 Or App at 147 (in finding that the defendant was stopped, noting that the officer did not inform defendant that he had decided not to cite
We reject as premature the state’s alternative argument that we can affirm the trial court even if defendant was stopped, because the stop was supported by probable cause to investigate the traffic violation Macho observed. The state contends that we may affirm on the “right for the wrong reasons” rationale explained in Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001). We disagree. To affirm on an alternative basis, we must find that (1) the facts in the record are sufficient to support the alternative basis for affirmance, (2) the trial court’s ruling was consistent with the view of the evidence under the alternative basis for affirmance, and (3) the record must be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. Id. In this case, the second predicate is not satisfied because the trial court, having concluded that no stop occurred under either parties’ version of events, never reached the issue of probable cause. Therefore, the trial court did not rule on the suppression motion on that ground, and did not make any findings regarding potential inconsistencies between Macho’s testimony that defendant crossed the center line and Kerwin’s statement that defendant had actually turned improperly. For that reason, we decline to affirm the trial court on those alternate grounds, and the trial court, if necessary, can address probable cause on remand.
We conclude that, because, under defendant’s version of events, he was stopped, the trial court must resolve the differing testimony regarding the encounter as the initial finder of fact. If the trial court finds as fact that the encounter occurred as defendant testified, then the court should determine whether the officers had probable cause
Vacated and remanded.
In later testimony, defendant repeated only that Kerwin said, “Hey, you.”
Reference
- Full Case Name
- STATE OF OREGON, Plaintiff-Respondent v. JOSHUA JOHN WILLIAMS
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- 2 cases
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- Published