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State v. Leiby

Court of Appeals of Oregon

August 8, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ALLEN RAY LEIBY, Defendant-Appellant.

          Argued and submitted June 7, 2018.

          Jackson County Circuit Court 16CR08944; David G. Hoppe, Judge.

          Laura E. Coffn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Matthew Maile, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General.

          Before Lagesen, Presiding Judge, and James, Judge, and Schuman, Senior Judge.

         Case Summary: Defendant appeals a judgment of conviction for driving while suspended, ORS 811.182(4), assigning error to the trial court's denial of his motion to suppress statements made during an encounter with a police officer. Defendant argues that he was unlawfully seized in violation of Article I, section 9, of the Oregon Constitution. Held: In discerning the line between a stop and a mere encounter, the demarcation is whether the conduct by the officer went significantly beyond that accepted in ordinary social intercourse. In this case, the dogged following of defendant, in conjunction with the officer's confrontational question implying that avoiding an officer is suspicious, and deserving of an explanation, would lead a reasonable person in defendant's position to believe that he was not free to go about his ordinary affairs. Accordingly, defendant was seized in violation of Article I, section 9.

         [293 Or.App. 294] JAMES, J.

         Defendant appeals a judgment of conviction for driving while suspended, ORS 811.182(4), assigning error to the trial court's denial of defendant's motion to suppress. Defendant asserts that statements made during his encounter with the officer should be suppressed because he was unlawfully seized in violation of Article I, section 9, of the Oregon Constitution. The state argues that defendant was not stopped, and defendant's interaction with the officer was a mere encounter. The state does not argue that if the encounter did constitute a stop, then the stop was otherwise lawful. We agree with defendant and, accordingly, 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." State v. Holdorf, 355 Or. 812, 814, 333 P.3d 982 (2014). "We state the facts consistently with the trial court's explicit and implicit factual findings, which the record supports." State v. Keller, 280 Or.App. 249, 250, 380 P.3d 1144 (2016). The facts of the encounter are largely undisputed.

         Deputy Weaver was driving his marked patrol car down a city street after dark on the evening of December 26, 2015. Weaver pulled up beside defendant in the parallel lane, and made eye contact with him. Defendant seemed startled and abruptly turned off into a parking lot that contained a drive-through coffee business; Weaver understood defendant's facial expression upon making eye contact to mean defendant thought "[O]h, there's the cops." Although Weaver acknowledged that pulling off the road after making eye contact with a police officer was not a crime and that people often move out of the way for his patrol car, Weaver turned off into another parking lot, and drove in a circular direction in order to observe defendant because "it was very clearly [sic] that he just pulled off because it was the police."

         Weaver saw defendant pull through the coffee stand drive-through, but defendant did not order anything. Weaver testified that once defendant saw Weaver turn off the roadway into the other parking lot, defendant proceeded back into the roadway "abruptly." Weaver was unable to see [293 Or.App. 295] defendant when defendant re-entered the roadway, but believed "there was absolutely no possible way for him to come to a complete stop" before re-entering the roadway based on the speed at which defendant had been traveling. However, because Weaver was not able to see defendant at the time he re-entered the roadway, he never actually saw defendant fail to stop.

         Because Weaver could not visually confirm that defendant had not stopped prior to entering the roadway, he wanted "to try to get a better, essentially, moving violation" so he pulled his patrol car behind defendant. Defendant saw Weaver behind him again, and quickly and abruptly turned his vehicle into another parking lot and parked. Weaver pulled into the same parking lot and approached defendant's vehicle. Weaver was in uniform and displaying his badge. Weaver did not activate his overhead lights, nor did he activate his siren. Weaver also did not block defendant's car with his patrol car.

         When Weaver encountered defendant, he was sitting in his vehicle and appeared to be waiting for Weaver to approach. His young daughter and pet dog were also present in the vehicle. Weaver testified that his standard practice is to always try and phrase the language he uses in interactions as a question, because Weaver is "conscientious of * * * trying to always make it a mere encounter." With that aim, Weaver asked defendant, "Is there any reason or do you want to tell me why you're trying to avoid me?"

         Defendant responded, "I'm suspended." Weaver testified that there might have been a follow-up question regarding defendant's level of suspension and as a result it was evident that defendant was criminally suspended, which led Weaver to believe he had probable cause of a crime. Defendant was handcuffed and Weaver checked his information to confirm that ...


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