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State v. Washington

Court of Appeals of Oregon

March 22, 2017

STATE OF OREGON, Plaintiff-Respondent,

          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 ...

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