Submitted November 25, 2014
Multnomah County Circuit Court. 130242038. Michael C. Zusman, Judge pro tempore.
Peter Gartlan, Chief Defender, and David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Senior Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Flynn, Judge, and De Muniz, Senior Judge. Lagesen, J., dissenting.
[270 Or.App. 586] FLYNN, J.
Defendant appeals a judgment of conviction for carrying a concealed weapon, ORS 166.240 (Count 1), and felon in possession of a restricted weapon, ORS 166.270 (Count 2). He challenges the trial court's denial of his motion to suppress evidence found during a patdown search to which he consented. Defendant argues that the officer's request to search came while defendant was " stopped" in violation of Article I, section 9, of the Oregon Constitution, and that the state failed to prove that the police did not exploit their illegal detention of defendant in violation of his constitutional rights. The state responds only to defendant's argument that he was unconstitutionally stopped at the time that he gave consent to the search, which led to the discovery of the incriminating evidence. We conclude that the encounter constituted an unlawful stop prior to the consent to search and that the state failed to carry its burden to prove that the evidence is nevertheless admissible. We, accordingly, reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
Before discussing the legal standards governing our analysis, we briefly describe the circumstances under which the search occurred, consistent with the trial court's findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). On February 14, 2013, defendant and two male companions stood on a street corner in a high crime area of east Portland. One of defendant's companions started to cross the street against the light just as Portland Police Officers Lemons and Hamby drove by. The officers pulled into a driveway near defendant's group, and, while Hamby took the companion aside to discuss the jaywalking, Lemons stood nearby as a cover officer. Defendant began a conversation with Lemons in which he described a citation he had recently received for [270 Or.App. 587] jaywalking. Within a few minutes, a second police car arrived with two more officers, one of whom--Officer Edwards--was the officer who had issued defendant the recent jaywalking citation. Edwards and Lemons briefly discussed Edwards's knowledge of and prior contact with defendant, and then Lemons walked away to run a records check on defendant.
While Lemons was away, defendant initiated a " terse" conversation with Edwards in which defendant accused Edwards of being " unfair" during the citation incident. Edwards used a " firm" tone to explain why defendant had received the citation and warned defendant that his behavior needed " to change so he doesn't get arrested." Edwards
also told defendant that he had two years to look at the jaywalking incident and, " [i]f I wanted to arrest him, then I had that * * *." Meanwhile, Lemons learned that defendant had a history of drug and weapons charges and, due to that information, recontacted defendant to ask if defendant had any drugs or weapons on him. Defendant responded that he had a knife, which prompted Lemons to request consent for a patdown search. Lemons retrieved the knife from the pocket in which defendant said it could be found; the knife was the basis for the charges of carrying a concealed weapon, ORS 166.240, and felon in possession of a restricted weapon, ORS 166.270.
Prior to trial, defendant moved to suppress all evidence, including the knife, as derived from a " warrantless, unlawful stop, seizure, search and arrest of Defendant" in violation of Article I, section 9. The trial court reasoned that " whether this motion is granted or denied ultimately turns on * * * who initiated contact with whom * * *." It viewed that as a " close question" but ultimately denied defendant's motion based on the following findings:
" * * * I find, based on everything I heard, that it's more probable than not that in fact [defendant] initiated contact with these two officers to express [his] upset and concern over the prior jaywalking incident. I find it's also more probable than not that [defendant] stayed on scene because [he's] with two folks [he was] close to and [defendant] ...