392 P.3d 348
Or. Ct. App.2017Background
- At ~11:30 p.m. Portland GET officers checked the parking lot of Club 205 (across from Mystic), an area known for gang activity; the lot had signs reserving it for customers only.
- Officer Duilio saw three men (defendant, Lawrence, Harwood) standing by a car for ~10 minutes; officers inside the club were asked to check for loiterers/nonpatrons.
- Six uniformed GET officers approached the men from varying vantage points, directing flashlights at them; officers called out and asked what the men were doing but received no immediate response.
- The men moved to the rear of the car and rummaged in the trunk; officers suspected possible weapon handling and ordered the men to show hands; Lawrence was patted down and a gun was found.
- Officers then handcuffed defendant and during a patdown a baggie of methamphetamine and cocaine was discovered on the ground near defendant.
- Defendant moved to suppress evidence as the product of an unreasonable seizure; trial court denied the motion finding reasonable suspicion for a trespass stop; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers had reasonable suspicion to stop defendant for 2nd-degree criminal trespass | Officers subjectively believed men were trespassing; facts (signs, employee request, 10-minute presence, not entering club, retreating from officers) justified stop | The described facts were innocuous and not particularized to show defendant was a noncustomer; no reasonable suspicion | Court: Facts did not supply objective reasonable suspicion for trespass; trial court erred |
| Whether defendant was seized when officers first approached (i.e., mere encounter vs. stop) | State urges that approach was not a stop, so suppression improper | Defendant contends approach was a seizure (show of authority) and thus required reasonable suspicion | Record inadequate to resolve; factual issues (tone, flashlight use, officer positioning) unresolved; remand to resolve whether a stop occurred |
| Whether officers’ subsequent patdowns and evidence seizure were justified by officer safety | State/ trial court: discovery of gun during Lawrence patdown justified safety measures and patdowns of others | Defendant: initial seizure invalid, so derivative searches/evidence should be suppressed | Court did not reach final resolution; because initial stop lacked reasonable suspicion, suppression ruling reversed and remanded for further findings |
| Appropriateness of affirming on alternative grounds (right-for-wrong-reason) | State asks appellate court to affirm on ground that no stop occurred | Defendant opposes; trial court did not make necessary factual findings | Court declines to affirm on alternative ground because trial court did not resolve factual issues necessary to decide whether a stop occurred; remand required |
Key Cases Cited
- State v. Holdorf, 355 Or 812 (explains standard of review for suppression hearing findings)
- State v. Backstrand, 354 Or 392 (explains seizure continuum and stop/arrest distinction)
- State v. Watson, 353 Or 768 (defines a stop as a brief investigatory detention)
- State v. Ashbaugh, 349 Or 297 (show-of-authority test for seizure)
- State v. Miglavs, 337 Or 1 (requires particularized, person-specific facts for suspicion)
- State v. Bertsch, 251 Or App 128 (presence in high-crime area insufficient without particularized facts)
- State v. Alvarado, 257 Or App 612 (police training/experience assertions require elaboration to convert innocuous facts into suspicion)
- State v. Pereida-Alba, 356 Or 654 (no presumption of favorable implicit findings where trial court did not decide an issue)