The state appeals a pretrial order suppressing all evidence discovered after defendant, the backseat passenger in a parked car, was stopped by police officers who suspected that he was engaged in a drug transaction. ORS 138.060(l)(c). The trial court concluded that the stop was not supported by reasonable suspicion. The state argues that, under the totality of the circumstances, the officer had an objectively reasonable belief that defendant was engaged in, or was about to engage in, criminal activity and that the stop was therefore lawful. Thus, the state concludes that the trial court should not have suppressed the evidence obtained as a result of that stop. We agree with the state and, therefore, reverse.
The relevant facts are undisputed. At 3:10 a.m., Philomath Police Officers Gurski and Umberger were driving westbound on Main Street when they noticed a bicyclist riding eastbound without a light. The officers turned around to contact the bicyclist. By the time they located the bicyclist, he was stopped in front of the Galaxy Motel, a place known for drug activity. The bicyclist was talking to defendant, the backseat passenger of a vehicle parked on the side of the road in front of the motel. The bicyclist was “right up against the car.”
Gurski approached the bicyclist and, as he did, smelled the “overwhelming odor of unburned marijuana.” Gurski thought that he had interrupted a drug deal. 1 He “started to talk to [the bicyclist].” The bicyclist took a step away from Gurski and brought his hands near his waistband, where Gurski noticed a bulge in his clothing. Fearing the bicyclist could have a concealed weapon, Gurski grabbed hold of him, pushed him against the car, and patted him down. The bulge turned out to be a soda can, but the search also revealed a small glass container of marijuana in the bicyclist’s back pocket and a pipe in his front pocket. Gurski placed the bicyclist in handcuffs and put him in the back of *550 his patrol car. The bicyclist denied buying the marijuana from defendant.
Gurski then returned to the parked car, where he “could still smell the overwhelming odor of marijuana.” He asked defendant what he was doing there. Defendant replied that he and his two companions had been at the “Civil War” football game in Corvallis, had gotten lost on their way back to Portland, and had stopped to ask for directions. Gurski asked “where the marijuana was.” Defendant said that he did not have any marijuana. Umberger and Gurski then asked the car’s occupants, including defendant, to leave the vehicle. Gurski sought the driver’s consent to search the vehicle for weapons or drugs. The driver consented.
Gurski searched the “backseat area” of the vehicle and found a resealable plastic bag containing 18 individually packaged baggies of marijuana “stuffed in-between the seats directly underneath where [defendant] was sitting.” The bag contained far less than an ounce of marijuana. In response to Gurski’s questioning, defendant admitted that the marijuana was his and stated that he had purchased it in Portland. The encounter occurred within 1,000 feet of Philomath High School.
Defendant was charged with unlawful delivery of marijuana within 1,000 feet of a school, ORS 475.862, and delivery of marijuana for consideration, ORS 475.860. Before trial, defendant moved to suppress the evidence obtained during the encounter, arguing that his rights under Article I, section 9, of the Oregon Constitution had been violated. 2 Specifically, defendant argued that the stop was not supported by reasonable suspicion and that the subsequent search of the vehicle was a product of the unlawful stop. After a hearing on the motion, the trial court concluded that “the objective evidence did not support reasonable suspicion to justify the stop and therefore all evidence obtained as a result of the *551 unlawful stop must be suppressed.” The trial court did not make findings or elaborate on the basis for its conclusion.
On appeal, the state concedes (as it did before the trial court) that defendant was stopped when asked to get out of the vehicle but argues that the stop was supported by reasonable suspicion. 3 Defendant responds that the circumstances did not give rise to reasonable suspicion, noting particularly that the officers “never observed defendant and the cyclist exchange anything, touch hands, or secret[e] anything into their pockets.” In any event, defendant argues that “the justification for the stop dissipated once the bicyclist denied buying drugs from defendant, and defendant provided the entirely reasonable explanation that he had stopped to ask the bicyclist for directions.” We conclude that the stop was supported by reasonable suspicion.
To be lawful under Article I, section 9, “a warrant-less stop must be supported by a reasonable suspicion of criminal activity.”
State v. Lay,
*552 Here, at the time defendant and the car’s other occupants were ordered out of the car, Gurski had observed the bicyclist standing “up against the car,” talking to defendant through an open window; it was 3:10 a.m. in an area known for drug activity; there was an overwhelming odor of marijuana near the bicyclist and defendant; Gurski had found marijuana on the bicyclist; and, after placing the bicyclist in his patrol car, Gurski had returned to the car, where he continued to smell an overwhelming odor of marijuana.
Defendant argues that those facts do not indicate that he and the bicyclist were engaged in anything more than an ordinary interaction between fellow citizens: there was no loitering for an extended period of time, no hand-to-hand exchange, and no furtive gestures suggesting a drug transaction between defendant and the bicyclist. We agree with defendant that his “mere presence” in a high crime area while conversing with the bicyclist is insufficient to establish a reasonable suspicion of illegal activity.
See, e.g., Rutledge,
There is no requirement, as defendant contends, that the officer witness a hand-to-hand exchange in order to reasonably suspect a drug transaction has taken place or is about to take place.
See State v. Loud,
Moreover, we reject defendant’s argument that any reasonable suspicion had “dissipated” because the bicyclist denied purchasing marijuana from defendant and defendant offered an explanation for his presence in front of the motel. “[W]e have previously held that possible lawful explanations for behavior do not prevent the behavior from giving rise to a reasonable suspicion of criminal activity.”
State v. Mitchele,
Defendant alternatively argues that he was stopped at two earlier points in the encounter: first, when Gurski “placed [the bicyclist] against [the] vehicle to search and arrest him”; and, second, when the officers “headed back towards [the] car” after arresting the bicyclist. We conclude that defendant was not stopped, in the constitutional sense, at either of those two points during the encounter. Thus, we need not determine whether the officers had reasonable suspicion to detain defendant at those times.
A person is seized under Article I, section 9,
“(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an *554 individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.”
State v. Ashbaugh,
Here, there is no evidence that, at the time the bicyclist was pushed up against the car, Gurski had orally addressed defendant or directed any inquiries toward him. Similarly, Gurski’s actions — pushing the bicyclist against the car and searching him — were not aimed at defendant. At that point, defendant was essentially a bystander to Gurski’s investigation of the bicyclist. Although, as a practical matter, defendant’s ability to leave may have been impeded by those actions, there is nothing to suggest that the interference was intended to restrict defendant’s freedom of movement or was anything other than an incidental inconvenience.
Cf. State v. Dominguez-Martinez,
We also conclude that defendant was not seized when the officers “headed back” toward defendant after arresting the bicyclist. Again, there were no verbal inquiries or commands directed at defendant. And again, although the officers had made some show of authority in arresting the bicyclist, that conduct did not suggest that defendant was the subject of investigation or that he was not free to leave. The officers merely approached defendant. That action alone is not threatening or coercive and, in fact, is a necessary predicate to even the most harmless police-citizen encounters.
See Ashbaugh,
We need not decide at what subsequent point defendant was constitutionally seized because we conclude, consistently with our analysis above, that the officer had reasonable suspicion that defendant was engaged in illegal activity at the time the officer returned to the car and smelled an overwhelming odor of marijuana. Accordingly, we conclude that the trial court erred in suppressing the evidence obtained as a result of the officer’s encounter with defendant.
Reversed and remanded.
Notes
Gurski testified that he had investigated “at least a half-dozen” drug trafficking cases and “close to a hundred” possession cases during his time as an officer.
Article I, section 9, provides, in part, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]” Although defendant cited a number of other provisions in support of his motion to suppress, on appeal the parties organize their arguments around Article I, section 9. Consequently, we analyze the issues under that provision.
We note that the trial court did not identify the point at which the encounter became a "stop,” i.e., a seizure requiring police justification. To the extent the parties’ arguments to the trial court addressed that issue, they assumed that the stop occurred when the officers ordered defendant and his companions out of the car.
We recognize that reasonable suspicion has both a subjective and objective component.
See Lay,
We understand defendant to argue only that an objectively reasonable person in his circumstances would believe that the officer had interfered with his liberty or freedom of movement.