Argued
and Submitted September 28, 2015
Multnomah
County Circuit Court 130130183; A155550 Eric J. Bloch, Judge.
Erica
Herb, Deputy Public Defender, argued the cause for appellant.
With her on the opening brief was Peter Gartlan, Chief
Defender, Offce of Public Defense Services. With her on the
reply brief was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section.
Dustin
E. Buehler, Assistant Attorney General, argued the cause for
respondent. On the brief were Ellen F. Rosenblum, Attorney
General, Anna M. Joyce, Solicitor General, and Carson L.
Whitehead, Assistant Attorney General.
Before
Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog,
Judge. [*]
SERCOMBE, P. J.
Defendant
appeals a judgment of conviction for unlawful possession of
cocaine, ORS 475.884, and unlawful possession of
methamphetamine, ORS 475.894. In his sole assignment of
error, defendant challenges the trial court's denial of
his motion to suppress, contending that the evidence at issue
was the product of an unreasonable seizure. The trial court
denied defendant's motion because it concluded that the
police had reasonable suspicion to stop defendant for
second-degree criminal trespass. Defendant argues that the
police officers that approached defendant and his companions
in the parking lot of a strip club did not have reasonable
suspicion to stop him. The state responds that the officers
did not stop defendant. On review for errors of law, see
State v. Holdorf, 355 Or 812, 814, 333 P.3d 982 (2014),
we conclude that the officers lacked reasonable suspicion to
stop defendant and that the record is inadequate for us to
determine, in the first instance, whether defendant was
stopped at the time he was approached by police in the
parking lot. We therefore reverse and remand.
"In
reviewing a denial of a motion to suppress, we are bound by
the trial court's findings of historical fact that are
supported by evidence in the record." Id. To
the extent that the trial court did not make findings of
fact, and there are facts that could be decided in more than
one way, we presume that the court made factual findings
consistent with its ultimate conclusion. Id.
However, where the trial court has not ruled on an issue, we
do not presume that it resolved factual inconsistencies
related to that issue. See Pereida-Alba v. Coursey,
356 Or 654, 671, 342 P.3d 70 (2015) (explaining that
"[i]f an implicit factual finding is not necessary to a
trial court's ultimate conclusion * * * then the
presumption does not apply"). We state the facts in
accordance with those standards.
At
about 11:30 p.m., members of the Portland Police Bureau's
gang enforcement team (GET) were searching for a suspect in
an area near two Portland strip clubs-Club 205 and Mystic.
That area is known for substantial gang-related criminal
activity, including shootings, and there had recently been a
gang-related homicide in the parking lot of Mystic. Officers
Billard and Asheim entered Club 205, across the street from
Mystic, to search for the suspect, but did not find him
there. While at the club, an employee asked Billard and
Asheim to check the parking lot for "persons using it
for illegal activity or reasons other than club
patronage." The parking lot was marked with signs
specifying that parking was for club customers only.
While
Billard and Asheim were inside Club 205, Sergeant Duilio, the
team's supervising officer, drove his unmarked police car
slowly through the club's parking lot. Duilio saw three
men standing near a car that was backed into a parking space,
with a fence directly behind the space. Defendant was
standing by the open driver's side door of the car, and
the two other men, Lawrence and Harwood, were standing behind
the car. Duilio thought that the men were "kind of
loitering, " because they appeared to be staying in one
place without "walking towards or away from the [club],
for several minutes." Duilio decided that he would meet
up with the other GET officers inside the club and, if the
men were still there after he did that, he would go talk to
them to make sure that they were patronizing the club and not
loitering.
As
Duilio was heading toward the club, he encountered Billard
and Asheim, who were on their way out. Billard and Asheim
told Duilio about the employee's request that they check
for people loitering in the parking lot, and Duilio told them
about the three men that he had seen standing by the car. The
officers believed that they had reasonable suspicion to
investigate the men for the crime of criminal trespass,
because the men had been in the lot for at least 10 minutes,
without appearing to patronize Club 205.
Duilio,
Billard, and Asheim were then joined by three other members
of the GET, and the six officers "approached the
defendant [] from varying vantage points." Most of the
officers walked toward defendant, Lawrence, and Harwood
"from the front, but at least one officer, "
Murphy, "approached the men from the left side of the
vehicle." However, another officer, Polas, testified
that he moved to the right to get a better look at defendant
and his companions. Lawrence later testified that he felt
"boxed in" and "surrounded" by the
officers. All of the officers were in uniform, and they were
directing their flashlights at the men as they walked toward
them. The officers testified that they were using their
flashlights to illuminate the area, but Lawrence testified
that they were shining them in his and the other men's
eyes.
As the
officers approached, defendant was standing by the
driver's side door and Lawrence and Harwood were standing
behind the trunk of the car, which was open. When defendant
saw the officers, he walked around to the back of the car and
joined the other two men behind the open trunk. The open
trunk blocked the officers' view below the men's
upper chests. However, Polas saw a gang tattoo on
defendant's neck that read "EBK." Polas knew
from his experience with the GET that that tattoo stood for
"everybody killer" and that it signified
defendant's willingness to kill members of any rival
gang.
Duilio
called out to the men in a "loud enough voice" so
that "everybody could hear, " identifying himself
and his team as police officers and asking the men what was
going on. The men did not respond to Duilio's initial
question, and he repeated it several times in a
"louder" voice to no avail. Defendant and his
companions then started to rummage in the trunk of the car,
appearing to pass something back and forth to one another,
while looking from side to side. The officers were alarmed
because they could not see what defendant and the other men
were doing with their hands, but their movements were
consistent with loading a weapon. They also found it
suspicious that the men completely ignored Duilio's
questions, because, in their experience, very few people
completely ignore a question from a police officer.
The
officers then ordered defendant, Lawrence, and Harwood to
come out from behind the car and show their hands. The men
did not immediately comply, and the officers repeated the
order several times. Defendant was the first to come forward,
followed by Lawrence, but neither abided by the order to keep
their hands visible. Defendant allowed his hands to disappear
into the sleeves of his large coat several times as he walked
forward, and Lawrence moved his hands in and out of his
pockets. The officers were concerned that those movements
might have been "indexing" behavior, unconsciously
checking a weapon to make sure that it was still present and
was not visible.
Asheim
and Duilio asked for and received Lawrence's consent to
conduct a patdown search. During the search, Asheim
discovered a loaded semiautomatic handgun in Lawrence's
right front pocket. Asheim called out that Lawrence had a
gun, and Polas and another officer, Dale, who were conducting
a patdown search of defendant, decided to put defendant in
handcuffs to complete the search, concerned that he might
also be armed. During the search, Polas discovered a baggie
containing methamphet-amine and cocaine on the ground next to
defendant's feet. Polas believed that the drugs fell out
of defendant's clothing during the search.
Defendant
was subsequently charged with one count of unlawful
possession of cocaine and one count of unlawful possession of
methamphetamine. Defendant moved to suppress the evidence
discovered in the patdown search, arguing that he was
unlawfully seized without reasonable suspicion when the six
officers approached him and the other men in the parking lot
and that the evidence obtained from that unlawful seizure
should be suppressed. Lawrence, although charged with
separate crimes, was charged in the same indictment and filed
a motion to suppress raising the same arguments. The court
heard defendant's and Lawrence's motions at the same
hearing. Following that ...