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State v. Worthington

Court of Appeals of Oregon

September 10, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
ZACHARY CARLYLE WORTHINGTON, Defendant-Appellant

Submitted November 26, 2013

Clatsop County Circuit Court No. 111128, Paula Brownhill, Judge.

Affirmed.

Peter Gartlan, Chief Defender, and Kristin A. Carveth, 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.

OPINION

Page 349

[265 Or.App. 369] ORTEGA, P. J.

Defendant appeals a judgment of conviction for first-degree robbery, ORS 164.415, first-degree burglary, ORS 164.225, and second-degree assault, ORS 163.175. He assigns error to the trial court's denial of his motion to suppress evidence that he argues was discovered after he was stopped without reasonable suspicion. We conclude that, under the totality of the circumstances, the officer had reasonable suspicion of defendant's involvement in criminal activity at the time he stopped defendant. Accordingly, we affirm.

We review the denial of a motion to suppress evidence for legal error, and the trial court's findings of fact bind us as long as there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993).

The following facts are undisputed. At 11:00 p.m. on the night in question, a suspect armed with a knife robbed a video store in Seaside. Within seconds after the robbery was reported, several officers (in about 10 patrol cars) arrived at the crime scene and established a " rolling perimeter" around the area.[1] Dispatch described the suspect as a stocky male, between five feet four inches and five feet seven inches tall, wearing black clothing.

About 45 minutes after the robbery, Officer Pohl was driving an unmarked car near the crime scene when defendant suddenly appeared from behind a parked van; Pohl thought defendant's movements were " very suspicious." Defendant was standing about 75 yards from the video store in a dimly lit area that was accessible from the store by residential alleyways running between houses. Defendant appeared to be thin, about five feet seven inches tall, and was wearing a light-colored sweatshirt. Although 45 minutes had passed since the robbery, Pohl testified that he [265 Or.App. 370] believed that the suspect had been confined to the area around the store by the large number of officers who had responded so quickly and established the rolling perimeter around the scene. He observed that defendant's height matched the description from dispatch. Although defendant was not dressed in dark clothing, Pohl had encountered situations previously when suspects who were fleeing police had changed their clothes in order to conceal themselves.

Pohl pulled his car alongside defendant and asked to speak with him. Defendant agreed, and Pohl got out of the car and joined defendant on the sidewalk. He asked defendant where he was coming from and where he was headed. Defendant, who looked nervous and avoided eye contact, responded that he was coming from a nearby grocery store, that he had not purchased anything, and that he was headed home. He gave Pohl his home address. Pohl thought that defendant was lying because he had visited the same grocery store 20 minutes earlier but had not seen defendant there. He also distrusted defendant's story because the location was not on a direct walking route between his house and the grocery store; defendant did not explain why he was going home by such an indirect route. Pohl suspected that defendant was involved in the robbery and requested and retained defendant's identification. Pohl knew that the robbery suspect had used a knife, so he asked defendant if he could do a patdown, and defendant consented. During the patdown, Pohl discovered large amounts of currency in defendant's pockets. Defendant later confessed to the robbery.

After being charged with first-degree robbery, first-degree burglary, and second-degree assault, defendant moved to suppress evidence of the currency and confession, arguing that Pohl lacked reasonable suspicion to justify the stop, in ...


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