Submitted September 29, 2015
County Circuit Court 12C41943; A156660 Susan M. Tripp, Judge.
Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy
Public Defender, Offce of Public Defense Services, fled the
brief for appellant.
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Michael S. Shin, Assistant Attorney General,
fled the brief for respondent.
DeVore, Presiding Judge, and Lagesen, Judge, and Flynn, Judge
Summary: Defendant appeals a judgment of conviction for one
count of unlawful possession of methamphetamine, ORS 475.894.
Defendant challenges the trial court's denial of his
motion to suppress evidence discovered after defendant
consented to the inspection of a container following a pat
down search. The trial court concluded that defendant was
seized at the time of the search and that officer safety
concerns authorized the seizure, rejecting defendant's
argument that he was seized much earlier during the
encounter. Defendant argues that he was seized when the
officer asked to see defendant's identification and then
told defendant to reach for his wallet with only one hand,
that the seizure was not authorized by the officer safety
doctrine, and that subsequent evidence must be suppressed.
The state argues that defendant was not seized at the earlier
point defendant identifies and that, even if he was, the
trial court should be affirmed on either of two bases that
the trial court did not address-that officer safety concerns
justified the earlier seizure or defendant's consent to
the search was sufficiently attenuated from any police
illegality. Held: Defendant was seized when the
officer directed him to use his hands in a specific way to
retrieve his [287 Or.App. 99] identification, and the record
did not permit an affirmance on either of the alternative
bases identified by the state.
J. pro tempore
challenges the trial court's denial of his motion to
suppress evidence that officers discovered after defendant
consented to the inspection of a container that officers
found during a "pat down" search. The trial court
concluded that defendant was seized at the time of the search
and that the seizure was authorized by officer safety
concerns, rejecting defendant's argument that he was
seized much earlier during the encounter and that the state
failed to prove any lawful basis for the earlier seizure.
Defendant argues that he was seized when, during the course
of a conversation between the officer and defendant, who was
sitting in a parked car, the officer asked to see
defendant's license and then told defendant to reach for
his wallet with only one hand. We have repeatedly held that
similar directions to a citizen amounted to a seizure, and we
conclude that defendant was, likewise, seized when the
officer directed how defendant should move his hands to reach
for his wallet. The state urges us to affirm the trial court
on the alternative bases that the earlier seizure was also
authorized by officer safety concerns or that defendant's
ultimate consent was sufficiently attenuated from any
illegality that the evidence should not be suppressed.
However, neither argument was raised or addressed below, and
the criteria for affirming a trial court on an alternative
basis are not satisfied. Accordingly, we reverse and remand.
review the denial of defendant's motion to suppress for
legal error and, in doing so, "we are bound by the trial
court's factual findings if there is any constitutionally
sufficient evidence in the record to support them."
State v. Maciel-Fisueroa. 361 Or. 163, 165-66, 389
P.3d 1121 (2017). To the extent that the trial court did not
make express findings regarding disputed facts, we will
presume that the court found the facts in a manner consistent
with its ultimate conclusion, provided that the evidence
would support such findings. Id. at 166. We describe
the facts in a manner consistent with that standard of
Or.App. 101] I. BACKGROUND
deputies Hagan and Remmy were driving in a marked patrol car
through an area with "a lot of stolen vehicles and cars
that are broken into" when they noticed a car parked on
the side of the road with the passenger door ajar. Hagan
"thought it was a little unusual" because he had
"found cars in that state before and they've been
broken into." At the time, the sun was still rising and
it was a "little bit foggy, " so Hagan
"couldn't quite see into it to know one way or the
other if anybody was inside."
deputies turned around, parked in front of the car, but on
the opposite side of the street, and approached the car from
both sides. Using flashlights to look inside the car, they
saw two people-defendant in the driver's seat, with the
keys in the ignition, and a woman in the passenger seat.
Hagan knocked on the driver's side window, and defendant
rolled it down. Hagan asked ...