Argued and submitted on June 07, 2012.
Multnomah County Circuit Court 100342526 Leslie M. Roberts, Judge.
Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Harry Auerbach, Chief Deputy City Attorney, argued the cause and filed the brief for respondent City of Portland.
Timothy A. Sylwester, Assistant Attorney General, waived appearance for respondent State of Oregon. Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Brewer, Judge pro tempore. DUNCAN, P. J. Reversed and remanded.
DUNCAN, P. J.
In this criminal case, defendant appeals the trial court's judgment convicting her of unlawful prostitution procurement activity (UPPA), Portland City Code (PCC) 14A.40.050. Defendant assigns error to the trial court's denial of her motion to suppress evidence that a police officer obtained after he stopped and arrested her for UPPA and attempted prostitution, ORS 167.007 and ORS 161.405. On appeal, defendant argues, as she did in the trial court, that the evidence is inadmissible because it was obtained as a result of a violation of her right, under Article I, section 9, of the Oregon Constitution, to be free from unreasonable searches and seizures. Specifically, defendant argues that the evidence is inadmissible because it was obtained as a result of the stop--which, she contends, violated Article I, section 9, because it was not supported by reasonable suspicion--and the arrest--which, she contends, violated Article I, section 9, because it was not supported by probable cause. Because all of the evidence that defendant sought to suppress was discovered after the arrest, the dispositive question is whether the arrest violated Article I, section 9. For the reasons explained below, we conclude that it did. Therefore, the trial court erred in denying defendant's motion to suppress, and we reverse and remand.
We review a trial court's denial of a defendant's motion to suppress evidence for errors of law. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). When we do so, we are bound by the trial court's express and implicit findings of fact if there is constitutionally sufficient evidence in the record to support them. Id. We state the facts in accordance with those standards.
On the evening of March 8, 2010, two Portland police officers spoke with defendant on 82nd Avenue, a high-vice area, and subsequently asked Officer Kula to monitor her. Kula was a member of the Prostitution Coordination Team, and his fulltime assignment was, as it had been for the preceding three years, to patrol 82nd Avenue for prostitution activities. Kula did not know or recognize defendant.
Driving an unmarked police car, Kula followed defendant from approximately 9:45 p.m. to 10:50 p.m., as she walked on the sidewalk along 82nd Avenue. Defendant wore a puffy jacket, an above-the-knee skirt, and heeled boots.
When Kula began following her, defendant was walking along the east side of 82nd Avenue. She was headed north, the same direction as the traffic in the lanes next to her. She repeatedly looked over her left shoulder at the traffic. She did not speak or gesture to any pedestrians or motorists.
After walking approximately 25 to 26 blocks, defendant approached the intersection of 82nd Avenue and Northeast Schuyler Street. A Toyota Tundra pickup truck was idling on the north side of Schuyler Street, 30 to 40 feet east of 82nd Avenue. Defendant looked at the Tundra, but did not approach it. After defendant crossed Schuyler Street, the Tundra driver pulled out and turned north onto 82nd Avenue. He passed defendant, traveled one block, and then turned east onto Northeast Hancock Street.
Defendant did not turn east onto Hancock Street. She continued walking along 82nd Avenue toward the next cross street, Northeast Tillamook Street.
There is a Plaid Pantry at the northeast corner of the intersection of 82nd Avenue and Tillamook Street. As defendant approached the intersection, the Tundra came down Tillamook toward 82nd Avenue and pulled into a parking spot in the Plaid Pantry parking lot. Defendant crossed Tillamook, while watching the Tundra. She did not approach the Tundra; she kept walking on the sidewalk. After passing the first of two driveways into the Plaid Pantry parking lot, defendant stopped in the second driveway, turned toward the Tundra, and paused. While still standing in the second driveway, defendant adjusted her boot. The Tundra driver backed out of the parking spot and drove toward the second driveway, but stopped approximately 15 feet away from defendant. At that point, Kula, who was observing from a side street a few blocks away, pulled out onto 82nd Avenue and drove toward the Plaid Pantry so he could "see what [defendant] was doing, if she was going to get into the [Tundra]."
Kula saw defendant take one or two steps into the parking lot toward the Tundra, look over her shoulder at his unmarked police car, stop, and return to the sidewalk. Kula testified, "[I]t was my sense that she knew I was watching at that point." According to Kula, defendant took "maybe just a step or two * * * into the parking lot, but then was right back on the sidewalk and walking northbound."
After defendant crossed the second driveway and walked approximately 50 feet north on 82nd Avenue, the Tundra driver pulled out onto 82nd Avenue and headed north. Kula followed the Tundra to run a records check and to see if the driver would turn back toward defendant. The Tundra was not registered to anyone Kula recognized as being involved in prostitution and, after following it for three or four minutes, Kula concluded that the driver was not going to turn back toward defendant.
Kula made a U-turn and headed south on 82nd Avenue to find defendant. Defendant had changed direction and was walking south on the same sidewalk along 82nd Avenue. Kula, who had received defendant's name from the two officers who had spoken with her earlier, checked defendant's criminal records. The records indicated that defendant had seven or eight arrests for prostitution-related crimes between 2004 and 2006. The records did not show any arrests or convictions for prostitution-related crimes in the four years since that time.
Defendant continued to walk south for at least 30 blocks. She then crossed to the west side of 82nd Avenue and walked one block south to a bus stop at Southeast Yamhill Street, where she spoke with a woman, whom Kula knew to be a prostitute, for approximately 30 to 45 seconds. At that point, Kula concluded that defendant was not going to get into a car, and he decided to stop and talk to her.
After speaking with the woman at the bus stop, defendant crossed back to the east side of 82nd Avenue and started to walk north again. Kula got out of his car, approached defendant, and asked if she would speak with him. Defendant responded, "Why?" and continued walking. Kula ordered her to stop and talk to him, and she did so. Kula asked to see her identification, and defendant asked why he wanted it. He replied that he suspected her of attempting to commit prostitution. Defendant refused to provide identification and denied being a prostitute. Kula asked defendant for her identification again, and she refused again. Kula believed that he had probable cause to arrest defendant for UPPA and attempted prostitution, so he told her that she was under arrest and handcuffed her. After giving her the Miranda warnings, Kula searched defendant's purse and found incriminating items. Defendant subsequently made inculpatory statements to Kula.
As mentioned, defendant was charged with UPPA in violation of PCC 14A.40.050 and attempted prostitution in violation of ORS 167.007 and ORS 161.405. Before trial, defendant filed a motion seeking to suppress all evidence Kula discovered as a result of the stop and arrest, including physical evidence and statements. At the hearing on the motion, defendant argued that, because the evidence was obtained as a result of an unlawful stop and arrest, it violated Article I, section 9, of the Oregon Constitution. The state responded that, under the totality of the circumstances, Kula had reasonable suspicion to stop and probable cause to arrest defendant for UPPA and attempted prostitution.
At the hearing, Kula testified about the typical behavior of women working as prostitutes on 82nd Avenue, explaining that they will walk along the avenue and attempt to make eye contact with male drivers; if a man signals that he is interested, the woman will acknowledge his response, and the man will turn onto a side street, circle back, and park near the avenue, where the woman will ...