State v. Decker
State v. Decker
Opinion of the Court
*323Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, and felon in possession of a restricted weapon, ORS 166.270(2). Defendant was convicted of those crimes in a stipulated-facts trial after the trial court denied his motion to suppress evidence that law enforcement officers found after stopping the vehicle that defendant was driving for a traffic violation. On appeal, defendant contends that the evidence should have been suppressed because officers found it after one officer, Oregon State Police Sergeant Barden, unlawfully extended the traffic stop. The state argues that Barden was justified in extending the stop because he had reasonable suspicion that defendant unlawfully possessed drugs or a weapon. We conclude that the record does not support a finding that Barden reasonably suspected defendant either of unlawfully possessing controlled substances or of unlawfully possessing a weapon. The trial court therefore erred when it denied defendant's suppression motion. Because that error was not harmless, we reverse and remand.
In the course of denying defendant's suppression motion, the trial court made factual findings that neither party challenges. We state the facts consistently with those express findings, which the record supports. State v. Shaff ,
The events that culminated in defendant's arrest began when Barden conducted a traffic stop after he saw a moving vehicle "almost straddling the center line." Barden activated his overhead lights and followed the vehicle, which slowed down to 10 or 15 miles an hour but did not immediately stop. Rather, Barden could see a silhouette of the driver's head moving to the right, toward the center of the vehicle, more than once. The vehicle kept going for 29 seconds at a very low speed before it stopped; Barden characterized *324that as an "extremely slow pull *451over" on a road on which there was no other traffic, although there was no place for the vehicle to pull completely off the road. Barden became increasingly nervous that "something's going to happen," like an attempt by the driver to flee or "a weapon * * * com[ing] into play." Barden explained at the suppression hearing that, from his training and experience, he develops a concern about a driver accessing or concealing weapons when it takes a driver as long to pull over as happened in this case.
After the vehicle stopped, Barden approached slowly, on high alert. His concern decreased once he could see the hands of the driver (defendant) and observed no weapons. Defendant told Barden that his driver's license was suspended and verbally identified himself instead of producing identification in response to the sergeant's request.
Although defendant's voice was fairly calm, he "would only glance at [Barden] and then he kept looking towards the center console, down at his feet, he just kept glancing, kept glancing, kept glancing, the whole time he was talking." That, in conjunction with "the very long pullover," heightened Barden's concern about weapons-specifically, "weapons that have been placed there"-although Barden did not believe that defendant posed an immediate threat because Barden could clearly see his hands.
Barden went back to his patrol car to verify defendant's identity. That took only a couple of minutes; during that time, Senior Trooper Chambers arrived at the scene. Barden asked Chambers to watch defendant, indicating Barden's concern about weapons. At about the time that dispatch verified that defendant's license was suspended, Chambers went to Barden's patrol car and told him that defendant had given an "odd" story about where he was driving; defendant had said that he was traveling between two points that "were on the other side of town completely" from where the stop occurred. Chambers also told Barden that the vehicle belonged to defendant's girlfriend, who was "known to be involved in controlled substances." Barden does not think that he and Chambers talked about anything else at that time.
*325Barden then had all the information he needed to issue a citation to defendant, but he had not completed writing that citation. At that point, Barden testified, he went back to defendant's vehicle, suspecting that defendant was engaged in criminal activity:
"When I recontacted him, at that point I had reason to believe, based off of what I had seen from the highly abnormal pullover, from his movements in the vehicle, from especially his actions of he kept glancing down, kept glancing down next to where he was seated, and then the additional information about where he was going to, which didn't seem to match at all where we were, that he was involved in criminal activity."
Accordingly, Barden began investigating the suspected criminal activity, transforming the stop-in his mind-from a traffic stop to a criminal stop. Barden asked defendant again where he was going, what he had hidden in the vehicle by the seat, and-after defendant denied having hidden anything-about drugs and weapons. Defendant did not consent to Barden's request to search the vehicle. Believing that he reasonably suspected defendant of criminal activity, Barden told defendant to get out of his vehicle so that a narcotics-detection dog could externally sniff it. Barden asked defendant whether he could pat him down for weapons; defendant refused and started reaching for his pockets. At that point, Barden patted him down for officer-safety reasons and brought him back to the patrol car.
At some point-the record does not indicate much about when, and the trial court made no finding on this point-Chambers alerted Barden to a knife that was visible on the center console; Barden had not known that the knife was there.
While a third officer waited with defendant at Barden's patrol car, Barden and Chambers searched defendant's vehicle for additional weapons. Although they did not find more weapons, they did find several baggies that contained methamphetamine, in the area where defendant had been looking. Defendant subsequently was charged with unlawful possession of methamphetamine and felon in possession of a restricted weapon. As noted, the trial court convicted defendant after denying his suppression motion, and defendant appeals.
On appeal, defendant argues that the trial court erred in denying the suppression motion because Barden impermissibly started investigating whether defendant unlawfully possessed drugs or weapons "instead of prosecuting the traffic infractions." According to defendant, that investigatory extension of the stop violated his rights under Article I, section 9, of the Oregon Constitution because Barden did not have reasonable suspicion that he unlawfully possessed either controlled substances or weapons. According to defendant, the delay before he stopped his vehicle, his nervous behavior and movements in the vehicle, his association with a person known to be involved with illegal drugs, and his odd story about where he was driving did not combine to give Barden reasonable suspicion that he then possessed controlled substances. Defendant similarly argues that the circumstances did not give rise to reasonable suspicion that he unlawfully possessed a weapon, because the record does not support a finding that Barden knew of the facts necessary to give rise to a reasonable belief that defendant was a felon in possession of a restricted weapon-in particular, that defendant was a felon-before he told defendant to get out of the vehicle and patted him down. In response, the state argues that the record supports a determination that Barden reasonably suspected that defendant was engaged in criminal activity before he stopped processing the traffic citation and, instead, began a criminal investigation.
*327We begin our analysis by emphasizing what is not at issue on appeal. First, defendant does not challenge the lawfulness of the original traffic stop. Second, the state does not dispute that Barden extended that stop when he started questioning defendant upon "recontacting" him; as Barden candidly testified, those questions did not relate to the traffic stop but "had to do with [Barden's] suspicion of [defendant's] involvement in criminal activity," and Barden viewed the encounter as having transformed into a criminal stop at that time. Third, the state does not seek to defend Barden's extension of the stop on officer-safety grounds (Barden did not testify that officer-safety concerns prompted either his questions to defendant or his decision to order defendant out of his vehicle). Rather, the state argues only that Barden's extension of the stop was justified because Barden reasonably suspected that defendant unlawfully possessed drugs or guns.
We turn to that issue. In State v. Maciel-Figueroa ,
"[T]he court (1) must find that the officers actually suspected that the stopped person had committed a specific crime or type of crime, or was about to commit a specific crime or type of crime, and (2) must conclude, *453based on the record, that the officers' subjective belief-their suspicion-was objectively reasonable under the totality of the circumstances existing at the time of the stop."
*328We first consider the possibility that Barden's extension of the stop was justified by reasonable suspicion that defendant possessed drugs, which is the primary theory that the state propounded below. To reiterate, the circumstances that the state argues contributed to reasonable suspicion of drug possession are: (1) defendant's delay in pulling over, (2) his movement inside his vehicle, including repeatedly looking at the center console, (3) his nervousness during the stop, including repeatedly looking at the center console, (4) his odd story about where he was driving, and (5) the fact that he was driving a vehicle that belonged to a person known to be involved with drugs. In considering whether those circumstances gave rise to reasonable suspicion of drug possession, we find two of our recent decisions helpful-one in which the circumstances did give rise to reasonable suspicion of that crime, and one in which the circumstances did not.
We take the latter case first. In State v. Reich ,
We held that the circumstances leading up to that investigation did not give the officer reasonable suspicion that the defendant possessed controlled substances.
We reached an opposite result in State v. Huffman ,
We held that all of those circumstances taken together gave the officer reasonable suspicion to investigate.
The fundamental distinction between Reich and Huffman is the presence, in Huffman , of facts connecting the defendant to illegal drug activity, which were absent in Reich . Thus, Reich is emblematic of the many cases in which we have held that a defendant's nervousness, after being stopped by police, and the defendant's association with other people involved with drugs does not give rise to objectively reasonable suspicion that the defendant unlawfully possesses controlled substances. See, e.g. , State v. Sherman ,
*331Conversely, Huffman can be grouped with those cases in which the record includes evidence tying the defendant to activity or behavior specifically connected with present drug possession. For example, in State v. McHaffie ,
That focus on whether the facts known to an officer include actions, appearances, or behaviors specifically associated *455with unlawful drug possession is particularly important in light of Maciel-Figueroa . In that case, the Supreme Court emphasized that it is not enough to ask whether an officer had reasonable suspicion of criminal activity in general. Instead, the question must be whether the officer had reasonable suspicion of a specific crime or type of crime.
In this case, the record does not reflect that Barden was aware of facts giving rise to reasonable suspicion that defendant possessed illegal drugs. Defendant's nervousness, his delay in stopping his vehicle, his odd story about where he was traveling, and his movements and glances toward the central console may all have led Barden to reasonably suspect that defendant was trying to hide something . But without some facts tying defendant specifically to present illegal drug activity, those circumstances do not give rise to reasonable suspicion of unlawful possession of controlled *332substances. The fact that defendant was driving a car that belonged to his girlfriend, who had some unspecified involvement in illegal drugs, is not enough to provide that link.
We therefore turn to the state's argument that Barden reasonably suspected that defendant was in unlawful possession of a weapon. In that regard, the state contends that the circumstances described above-in combination with defendant's felon status-gave Barden reasonable suspicion of that crime. For the purposes of evaluating the state's argument, we assume, without deciding, that the facts known to Barden could give rise to reasonable suspicion that defendant possessed a weapon. Even with that assumption, however, the state's argument still fails because the record in this case would not support a finding that Barden was aware that defendant was a felon (or that Barden was aware of facts that reasonably suggested to him any other reason defendant's possession of a weapon would be unlawful) before he extended the traffic stop. As noted, Barden testified only briefly on that point, saying that he learned from Chambers that defendant had a felony conviction. But the record includes no evidence supporting an inference that Barden received that information early in the encounter, before he "recontacted" defendant and, shortly thereafter, ordered him out of his vehicle. Significantly, Barden testified that, during a conversation he had with Chambers before that point, Chambers told him about defendant's odd travel story and informed Barden that defendant was driving his girlfriend's vehicle. When asked whether he and Chambers discussed anything else, Barden answered, "No, I don't believe we did at that point." Barden then testified about recontacting defendant, questioning him about possible illegal activity, ordering him out of the vehicle, and bringing him back to the patrol car. Barden then stated that, at some unidentified point "[e]arlier on in the stop," Chambers had told him that defendant was a convicted felon. Nothing in that testimony (and nothing else in the record) suggests whether Chambers gave Barden that information before or after Barden started his criminal investigation and ordered defendant out of the vehicle.
Because this record does not reflect when Barden learned that defendant was a convicted felon, defendant's *333felon status cannot be considered in the reasonable-suspicion analysis. See State v. Worthington ,
We decline to affirm the judgment on the basis of that argument, which is not one that the state presented to the trial court. In our view, the record could have developed differently had the state argued below that, in any event, defendant inevitably would have had to get out of his truck-and in a way that revealed the knife to an officer-while the officers were still present. That possibility precludes us from affirming on a "right for the wrong reason" basis. Outdoor Media Dimensions Inc. v. State of Oregon ,
Reversed and remanded.
Barden was the only witness at the suppression hearing. Barden testified that Chambers told him about the knife "at some point during that contact" between Barden, Chambers, and defendant. When Barden gave that testimony, he had already described bringing defendant back to his patrol car and one of the officers having asked that a narcotics-detection dog be brought to the scene. Barden said that it was "[a]t some point during that whole transaction" that Chambers told him about the knife. Barden also testified that he could not see the knife himself until defendant got out of his vehicle.
We also observe that Barden's testimony about why he believed he had reasonable suspicion to conduct an investigatory stop did not include any mention of defendant's felon status. Thus, we question whether the record would support even a determination that Barden subjectively believed he had justification for investigating defendant for being a felon unlawfully in possession of a weapon. See State v. Tapp ,
Reference
- Full Case Name
- STATE of Oregon, Plaintiff-Respondent v. Thomas Paul DECKER
- Cited By
- 5 cases
- Status
- Published