and submitted June 7, 2018.
Jackson County Circuit Court 16CR08944; David G. Hoppe,
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
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.
Lagesen, Presiding Judge, and James, Judge, and Schuman,
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,
Or.App. 294] JAMES, J.
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
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
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."
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.
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
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?"
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