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State v. Powell

Court of Appeals of Oregon

November 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSEFF POWELL, aka Church Powell, aka Joseff Mykel Dean, aka Joseff Mykaldean Powell, Defendant-Appellant.

          Argued and Submitted April 5, 2017, Tillamook High School, Tillamook.

         Multnomah County Circuit Court 14CR09300; Marilyn E. Litzenberger, Judge.

          Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Paul L. Smith, Deputy Solicitor General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Shorr, Judge, and Wilson, Senior Judge.

         Case Summary:

         Defendant appeals a judgment convicting him of unlawful possession of a firearm, ORS 166.250. Defendant assigns error to the trial court's denial of his motion to suppress evidence found when police stopped and searched defendant without a warrant near the scene of a recent shooting at a school. Defendant argues that the trial court erred when it concluded that the stop and search was justified under exceptions to the Article I, section 9, warrant requirement of the Oregon Constitution, including the officer safety and school safety exceptions, voluntary consent, and the emergency aid exception. Held: The trial court erred in denying the motion to suppress. None of the Article I, section 9, exceptions advanced by the state applies to the facts of this case. First, the officer safety and school safety exceptions do not apply because the police stopped [288 Or. 661] and searched defendant based on general suspicion that defendant could have been involved in the shooting rather than on objectively reasonable suspicion, based on specifc and articulable facts, that defendant in particular posed an immediate threat. Second, defendant did not voluntarily consent to the search by being near the school or by acquiescing to police orders. Third, the emergency aid exception does not apply because the police stopped and searched defendant in order to investigate a threat, not out of a belief that doing so was necessary to render immediate emergency aid to someone in need.

         Reversed and remanded.

         [288 Or. 662] SHORR, J.

         Defendant appeals a judgment convicting him of unlawful possession of a firearm, ORS 166.250. On appeal, defendant assigns error to the trial court's denial of his motion to suppress evidence that a police officer found when he stopped and searched defendant without a warrant. Defendant contends that the trial court erred when it concluded that the search and seizure was justified under a variety of exceptions to the warrant requirement of Article I, section 9, of the Oregon Constitution, including the officer safety exception, voluntary consent, the emergency aid exception, and the school safety exception. Because we conclude that none of those exceptions apply, we reverse and remand.

         I. FACTS AND PROCEDURAL HISTORY

         We begin with the factual standard of review applicable in a review of a decision on a motion to suppress evidence. We are bound by the trial court's findings of historical fact that are supported by constitutionally sufficient evidence. State v. Vasquez-Villagomez, 346 Or. 12, 23, 203 P.3d 193 (2009). Further, "[i]n the absence of express factual findings, we presume that the trial court decided the disputed facts in keeping with its ultimate conclusion." State v. Garcia. 276 Or.App. 838, 839, 370 P.3d 512 (2016). With that standard of review in mind, we state the following facts.

         Defendant heard that a shooting had occurred at the high school where his younger sister was a student. Defendant rushed to the school to check on his sister. He had a handgun tucked into the waistband of his pants and concealed under his shirt and sweatshirt. When he arrived, defendant found an evacuation of students and staff underway. Students and staff were moving from the school to the church across the street. The evacuation was supervised by police officers. One officer, Sergeant Lofton, was supervising one of a number of patdown areas organized on the church property. There was an ongoing tactical response to the shooting at that time, and one purpose of the patdown areas was to ensure that the shooter or an accomplice did not escape by blending in with the evacuees. To that end, Lofton had arranged into an orderly line a disorganized mass of [288 Or. 663] students and staff who had gathered across the street from the school. Each person in the line was called forward in turn, ordered to put their hands on their head, and patted down by an officer. Officers patted down waistlines, lifted pant legs, lifted jackets or other baggy clothing, and patted or searched any other place that a weapon could have been concealed. Lofton's role was to "mak[e] sure that the kids [who] were searched went in front of me, and then went into the safe area, " where they were interviewed by detectives and then cleared to leave.

         During the evacuation process, Lofton spotted defendant, who had arrived at the scene and was standing apart from the organized line of evacuees. Lofton thought that defendant might have "left [the] search line for some unknown reason, [or] that he had never made it to my search line for some reason and he was an unknown." Lofton and defendant made eye contact, and defendant quickly looked off to the side. Lofton then approached defendant and asked him what he was doing. Defendant replied that he did not know where to go. Defendant did not explain why he was there. Lofton thought that defendant seemed nervous. At that point, Lofton was "concerned" that defendant "could have been involved in the shooting." Lofton told defendant, "I want you to come back with me this way, " and directed defendant over to the patdown area. When they arrived at the patdown area, Lofton ordered defendant to lace his fingers behind his head. Defendant hesitantly raised his hands to the side of his head. Lofton touched defendant's hands together behind his head and said "put your hands together, " which defendant did. Apart from that moment of hesitancy, defendant was "generally cooperative" with Lofton's instructions. Lofton "grabbed [defendant's] hands behind his head" to keep them together and walked defendant a few more steps forward. Lofton then decided to search defendant for weapons. Because Lofton was concerned that he would be unable to feel a weapon under defendant's baggy sweatshirt, he lifted defendant's sweatshirt and shirt with one hand while still gripping defendant's hands together behind his head with the other. Lofton made no attempt to patdown defendant first. Immediately upon lifting defendant's shirt, Lofton ...


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