Argued and Submitted August 21, 2013
Washington County Circuit Court C110174CR. Thomas W. Kohl, Judge.
Jonah Morningstar, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[264 Or.App. 128] NAKAMOTO, J.
In this criminal case, defendant appeals a judgment convicting him of unlawful possession of heroin, ORS 475.854. He assigns error to the trial court's denial of his motion to suppress evidence obtained during an encounter that defendant contends was an unlawful seizure. Specifically, defendant argues that he was unlawfully seized when the police ordered him to leave a cafe restroom without reasonable suspicion of criminal activity. We reverse and remand.
We review a trial court's denial of a motion to suppress for legal error. State v. Ehly, 317 Ore. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's findings if there is sufficient evidence in the record to support them. Id. If the trial court did not make findings of historical facts on all pertinent issues and there is evidence from which such facts could be decided more than one way, we presume that the facts were decided in a manner consistent with the court's ultimate conclusion. Ball v. Gladden, 250 Ore. 485, 487, 443 P.2d 621 (1968). In accordance with that standard, the facts are as follows.
Beaverton Police Officer Juilfs responded to a 9-1-1 call at a cyber cafe. When Juilfs arrived, he spoke to the cafe manager who had placed the call. The manager told Juilfs that defendant had come into the cafe and purchased 30 minutes of Internet time, but then had left the cafe without using a computer. A few minutes later, defendant had returned to the cafe and immediately had gone into the restroom. The cafe's restroom was a single-occupancy bathroom with a lockable door. The cafe manager had heard banging and moaning sounds coming from the restroom and became concerned that defendant was ill or might need medical attention, which prompted him to call 9-1-1. The manager told Juilfs that defendant had been in the restroom for approximately 15 minutes by the time Juilfs had arrived at the cafe. The manager had not attempted to contact defendant, to ask defendant about his condition, or to ask defendant to leave the restroom.
Before acting on the manager's concerns, Juilfs waited for his cover unit to arrive. While Juilfs waited, he [264 Or.App. 129] approached the restroom, which he testified was locked, and, without announcing his presence, listened to what defendant was doing inside. Juilfs heard what he described as a " constant level of noise in the bathroom," including sounds of water running in the sink, a male voice clearing his throat several times, and " some kind of banging and rustling noises." Juilfs testified that what he heard did not sound like someone using the toilet.
Juilfs had been listening for approximately five minutes when his cover unit arrived. Then, Juilfs " started banging" on the restroom door and said, " Beaverton Police, we need you to step out." Defendant responded that he was coming to the door, and approximately one minute later defendant opened the door and stepped out of the restroom. Juilfs testified that defendant " seemed unsteady on his feet as he walked out" of the restroom and that he was " kind of argumentative" when he asked why the police were there. Juilfs moved defendant away from the restroom and directed him into the lobby of the cafe so that they could have a safe place to talk.
In the lobby, defendant continued asking why the police were there and what the problem was. In response, Juilfs asked defendant why he had been in the restroom for such a long time. Defendant responded that he felt sick and had " explosive diarrhea." Juilfs became concerned that defendant had been using drugs in the bathroom, and, as a result, Juilfs asked defendant whether he had any hypodermic needles or weapons on him. Defendant responded that he did not, but Juilfs conducted a patdown of defendant and discovered a pocketknife.
Then Juilfs asked defendant whether he could search defendant's pockets. Defendant responded that he could not. Because he was concerned that defendant might have a hypodermic needle on him, Juilfs placed defendant in handcuffs but told him that he was " not under arrest." Juilfs then left defendant with another officer while he searched the restroom. Juilfs found a small tied-off balloon in the trashcan that had been torn in half, which he identified as a bindle commonly used to transport heroin.
[264 Or.App. 130] Juilfs returned to defendant and gave him his Miranda warnings. Although defendant denied using heroin, Juilfs was nevertheless " convinced" that defendant had been using heroin in the bathroom based on his observations of defendant, including that defendant had been unsteady on his feet, his voice had become raspy and lost volume as he spoke, and he was struggling to keep his eyes open. Juilfs decided to take defendant to Hooper Detox, a detoxification facility.
Before placing defendant in his patrol car, Juilfs searched defendant's pockets and discovered a small bindle similar to the one found in the bathroom. Juilfs also discovered a hypodermic needle and a kitchen spoon commonly used for cooking heroin, which had heroin residue on it. Later testing of the contents of the bindle revealed that it contained heroin. ...