Submitted on April 24, 2013.
Multnomah County Circuit Court 110545450, Alicia A. Fuchs, Judge.
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
Defendant appeals a judgment finding her in contempt for having violated the terms of a no-contact order issued by a Washington court. Defendant raises three assignments of error, arguing that the trial court erred by denying her motion to suppress, by overruling a hearsay objection that she made during the bench trial, and by purportedly applying "the wrong legal standard when it 'instructed' itself that the state did not have to show that defendant willfully violated the [Washington] court's order." Because it is dispositive, we address only defendant's first assignment of error, in which she argues that the trial court erred in denying her motion to suppress evidence of her identity that a police officer discovered after he initiated conversation with defendant and her companion as they sat in a parked car. We review the trial court's ruling for legal error, "deferring to the trial court's explicit and implicit findings of historical fact if there is constitutionally sufficient evidence in the record to support them." State v. Salvador, 237 Or.App. 424, 426, 241 P.3d 324 (2010). Applying that standard of review, we reverse.
We describe the facts consistently with the trial court's findings, which the evidence supports. On the day in question, Gresham police officer Barrett was on patrol in the Rockwood neighborhood, which he described as "a high-crime, high-drug, high-gang area." Barrett spotted a single car parked in a small parking lot where, in the past, he had encountered people who were engaged in drug deals. Barrett, who was in uniform, pulled his marked patrol car into the parking lot; as he arrived, he saw the two occupants of the other car "look up at [him] and realize [he] was there." Barrett parked without blocking the other car and without turning on his emergency lights. He then approached the parked car and spoke with defendant, who appeared to be the driver, and defendant's passenger, explaining that they were in "a very high-drug, high-crime area." Barrett asked defendant and the passenger whether they had seen anything suspicious; he also asked what they were doing. Defendant and the passenger told Barrett that they were waiting for a friend.
Barrett then asked defendant and the passenger for their names. Defendant said that her name was Stacy Lynn Burke and that she was licensed to drive in Washington, but did not have the license with her. The passenger responded to Barrett's inquiry by identifying himself and providing Barrett with his driver's license. Barrett returned to his car and ran the name Stacy Lynn Burke through the Law Enforcement Data System (LEDS) in both Oregon and Washington, but nothing came up in either state. When Barrett ran the passenger's name, he testified, he discovered that the passenger "had a valid restraining order against someone by the name of Stacy Lynn Dierks, * * * which was very similar to Stacy Lynn Burke * * *." At that point, Barrett thought that defendant had lied to him about her identity.
Because Barrett thought that defendant might be the Stacy Lynn Dierks against whom the no-contact order had issued, he asked if she had any photo identification with her. As defendant looked through her purse, Barrett saw her twice pass by a paper copy of a Washington driver's license. Barrett pointed that out to defendant, who then handed him the document, which reflected her true identity.
After she was charged with contempt for having violated the no-contact order, defendant moved to suppress the evidence of her identity that Barrett had obtained during the parking-lot encounter, arguing that Barrett had seized her by asking for her name and performing a warrants check. Under those circumstances, defendant argued, a reasonable person would not have felt free to leave, particularly given the officer's retention of the passenger's license while he checked LEDS. The state responded that Barrett did not stop defendant simply by questioning her and asking for her identification. In any event, the state argued, Barrett had reasonable suspicion that defendant had committed a crime (providing false information to a police officer) as soon as he checked LEDS and found nobody named Stacy Lynn Burke in either Oregon or Washington. Defendant acknowledged that Barrett had probable cause to believe that she was engaged in criminal activity once he ran the LEDS check, but questioned "how they get to that stage"; in defendant's view, she already had been detained, without reasonable suspicion, before Barrett checked the false name that she had given him.
The trial court denied defendant's suppression motion. Two aspects of the trial court's ruling inform our analysis. First, the trial court found that Barrett developed reasonable suspicion that defendant had given him a false name when he ran the name Stacy Lynn Burke through LEDS "and [came] up with no matches but a similar name with a restraining order * * *." Second, the court ruled that everything that occurred before that point was "mere conversation." After the court denied defendant's suppression motion, the contempt case proceeded immediately to trial. The court found that defendant had violated the no-contact order and entered the judgment finding her in contempt.
On appeal, defendant argues that the trial court should have granted her suppression motion because Barrett stopped her before he developed reasonable suspicion that she had given him a false name. Defendant relies on the totality of the circumstances: Barrett parked his patrol car where defendant could see it; he asked defendant and her companion about criminal activity, whether they had seen anything suspicious, and what they were doing; he requested defendant's name and took the passenger's driver's license; and he returned to his patrol car, which was visible to defendant and the passenger, and ran the names through LEDS. Under those circumstances, defendant argues, Barrett's conduct amounted to a show of authority that would cause a reasonable person in defendant's situation to believe that she was not free to leave. Defendant concludes, therefore, that she was stopped before Barrett developed reasonable suspicion that she had engaged in criminal activity.
The state makes a single argument in response: that defendant had not yet been stopped when Barrett developed reasonable suspicion, after checking LEDS, that defendant had given him a false name. The state acknowledges that a reasonable person in defendant's situation could have inferred that Barrett was checking the passenger's records, given his retention of the passenger's license, but it contends that the circumstances "do not as readily give rise to the inference that Barrett also was running a check * * * on defendant, such that defendant was not free to leave." That is so, according to the state, because Barrett had not obtained a license or other identifying documents from defendant when he returned to his patrol car with the passenger's license. Thus, the state argues, "this is not a ...