STATE OF OREGON, Appellant, υ. EUGENE W. JOHNSON, JR., Respondent. STATE OF OREGON, Appellant, υ. TRACY JOANN JOHNSON, Respondent.
C-90-09-35322; CA A69301 (Control); C-90-09-35323; CA A69302
Court of Appeals of Oregon
Argued and submitted June 5, 1992, judgment vacated; remanded for further proceedings May 12, 1993
reconsideration denied September 29, 1993
851 P2d 1160 | 318 Or 26
(Cases Consolidated)
Ernest Warren, Jr., Portland, argued the cause for respondent Eugene W. Johnson. With him on the brief was Walker & Warren, Portland.
William E. Gaar, Portland, argued the cause for respondent Tracy JoAnn Johnson. With him on the brief was Metropolitan Public Defender, Inc., Portland.
De MUNIZ, J.
Rossman, P. J., concurring.
Defendants are husband and wife. They were indicted for delivery and possession of a controlled substance.
The chronology of events that led to defendants’ consent to search is not in dispute. As part of his routine patrol, Officer Rhodes frequently stopped at local motels to ask the clerks if they had observed any suspicious activity that might be related to drug transactions. At 2:50 one morning, Rhodes stopped at the Cypress Inn in Portland. The night clerk told him about some suspicious activity related to room 110.2 Tracy Teixeira was listed as the registered guest in that room. Rhodes ran a records check and found that there was an outstanding warrant for Teixeira‘s arrest. He summoned another officer, Farr, to accompany him and his partner, Mickola, to room 110 to arrest Teixeira.
Rhodes and Mickola went to the door, while Farr watched the window. Rhodes knocked, and Tracy Johnson opened the door. Rhodes asked her if he could come in to speak with her, and she said yes. Rhodes asked her what her name was, and she answered, “Tracy.” Rhodes, believing that she was Tracy Teixeira, told her that she was under arrest and handcuffed her. He asked her what her last name was, and she “mumbled something that sounded like Johnson.”
As he was handcuffing Tracy, Rhodes saw Eugene Johnson lying on the bed. Eugene was on top of the covers and was fully dressed. One of his hands was underneath the
As he approached Eugene, Rhodes smelled an aroma that he associated with methamphetamine. Rhodes handcuffed Eugene and asked him why he smelled like a “meth lab.” Eugene said, “I don‘t know what you‘re talking about.” Rhodes than advised defendants of their “Miranda rights.” They told him that they understood those rights. Rhodes asked defendants if there were any drugs or guns in the room. They said that, to their knowledge, there were not. Rhodes asked if he could search the room, and defendants consented.
Rhodes searched the room and found half an ounce of methamphetamine and other drug paraphernalia. He found Tracy‘s identification in her purse. The officers then removed Tracy‘s handcuffs, and Mickola went with her into the hallway outside the room. Tracy came back and told Eugene that the officers wanted to search their car. According to Rhodes,
“[Tracy] says that Officer Mickola essentially has asked if it was okay to look in [defendants‘] car and [Eugene] responded that he didn‘t care because they‘re going to do what they want to anyway.”
Rhodes and Mickola searched the car and found a police radio scanner, a heating grill, a fan, some tubing and a bottle of peppermint extract.3
The court concluded that Rhodes had probable cause to arrest Tracy because “[s]he matched the description [of Tracy Teixeira in the warrant] close enough,” and it therefore concluded that her arrest was lawful. Next, the court concluded that Rhodes unlawfully arrested Eugene by handcuffing him, because he did not have probable cause to believe that Eugene had committed any crime. Finally, the court concluded that defendants’ consent to a search of their motel room was invalid, and it granted their motions to suppress.
“[W]hether or not the consents given to the search of the room were valid or invalid. [W]hen there‘s been illegal police conduct, the evidence obtained will be suppressed if [the] consent was obtained by exploitation of the illegality [or if] the defendant‘s free will was tainted by the illegal police conduct.
“The court‘s required in determining whether those exist to examine the totality of the circumstances. The burden is on the state to prove the voluntary consent by clear and convincing evidence. According to the case law the burden is even greater when the consent is given after illegal police conduct.”
The court indicated that it was “not persuaded the state has carried its burden of proof that the consent was a product of the defendants’ free will and not obtained by coercion.” State v. Wolfe, 295 Or 567, 572, 669 P2d 320 (1983); State ex rel Juv. Dept. v. Fikes, 116 Or App 618, 624, 842 P2d 807 (1992).
The searches were not pursuant to a warrant. Consequently, the state had the burden of proving, by a preponderance of the evidence, that they were lawful.
The state contends that the officers were authorized to arrest Tracy when she told them that her name was Tracy.
An arrest warrant must
“(2) Specify the name of the person to be arrested, or if the name is unknown, shall designate the person by any name or description by which the person can be identified with reasonable certainty [and]
*****
“(6) Command any peace officer to arrest the person for whom the warrant was issued[.]”
ORS 133.140 . (Emphasis supplied.)
The warrant commanded the arrest of Tracy Teixeira. It neither commanded nor authorized the arrest of any other person.
The state contends that the officers were authorized to arrest Tracy Johnson, because she “generally matched the physical description shown in police records and said her name was ‘Tracy.’ ” However, the officers’ belief that Tracy was the person who was named in the warrant did not authorize them to arrest her. In Pierson v. Multnomah County, 301 Or 48, 718 P2d 738 (1986), there was a valid warrant to arrest Ronald Pierson. Multnomah County police officers stopped his identical twin brother, Robert, for a traffic infraction. They believed that Robert was Ronald, and arrested him. Robert sued the county for false imprisonment. In deciding whether the officers’ conduct was privileged, the court weighed “the inherent conflict between persons who are wrongfully arrested and officers who are charged with the duty to arrest persons under a warrant.” 301 Or at 55. (Emphasis supplied.) It is clear that the court considered Robert‘s arrest unlawful, even though the police may have believed, in good faith, that he was the person named in the warrant.
Other than the warrant, the officers had no information that would suggest that Tracy Johnson had committed any crime. Article I, section 9, does not have a “good faith” exception. See State v. Devine, 307 Or 341, 345, 768 P2d 913 (1989); State v. Davis, 106 Or App 546, 552, 809 P2d 125
We do not mean to suggest that the officers had no authority to stop Tracy for a reasonable time to determine her identity.
After unlawfully arresting Tracy, Rhodes handcuffed Eugene “for officer safety purposes.” He then asked defendants if there were any guns or drugs in the motel room and asked for permission to search. Defendants consented. During that search, Rhodes found Tracy‘s identification, which proved that she had been telling the truth when she said her name was Johnson.
The state contends that handcuffing Eugene did not constitute an arrest. It argues that Eugene was lawfully stopped and that handcuffing him was a reasonable alternative to frisking him. Alternatively, the state contends that handcuffing Eugene was a reasonable procedure to ensure the officers’ safety while arresting Tracy. See State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). Before handcuffing Eugene, Rhodes detected the distinct aroma of methamphetamine emanating from Eugene. That aroma was sufficient to arouse a reasonable suspicion that Eugene was either in possession of the drug, or had recently been in a place where it was manufactured. He was authorized to stop Eugene for the purpose of investigating possible violations of
Rhodes knew that Eugene had been arrested on weapons charges before, and he saw that Eugene‘s hand was concealed underneath the pillow on the bed. He reasonably suspected that Eugene was armed and dangerous. The question in this case is whether Rhodes’ handcuffing of Eugene was reasonable under the circumstances. State v. Bates, supra.
“when a stop is authorized, a restraint that goes beyond the scope of a stop will result in an illegal arrest, if it is not based on probable cause. *** [O]nce defendant was taken out of [his] car and frisked, any concern about immediate danger dissipated, especially in light of [the officer‘s] description of defendant as ‘polite and cooperative.’ ” 106 Or App at 141.
The facts in this case are not significantly different from those in Morgan. According to Rhodes, the atmosphere was relaxed, “[a]s much as it could be for people that are being taken into custody.” Rhodes asked Eugene to take his hand out from underneath the pillow, and Eugene complied.
There may be circumstances in which the interests of officer safety could justify handcuffing a dangerous person who refuses to submit to a frisk during a lawful stop. But when an officer fails to follow the procedure outlined in
In determining whether defendants voluntarily consented to a search of their motel room, the court was required to make inferences about their mental states when they gave their consent. In drawing those inferences, the court was
Additionally, we cannot review the lawfulness of defendants’ consent to a search of their car, because the trial court never made a ruling on that issue. Accordingly, we remand to the trial court with instructions to make a finding, under the proper standard, whether defendants’ consent to a search of their motel room and their car was the product of their free will. The court shall restrict its findings to evidence that is contained in the existing record. See State v. Gaunce, supra, 114 Or App at 196.
Judgment vacated; remanded for further proceedings not inconsistent with this opinion.
ROSSMAN, P. J., concurring.
Because Oregon does not recognize a good faith exception to the warrant requirement, I am compelled to agree with the majority that the arrest of Tracy was unlawful. Because the trial court applied the wrong burden of proof, I also agree that we must remand for a finding regarding whether defendants’ consents to search their motel room and car were voluntary. However, under the circumstances of this case, I believe that handcuffing Eugene was a reasonable step to protect Rhodes and his fellow officers from serious physical injury. Consequently, I do not believe that the cuffing constituted illegal police activity that should be considered in determining whether the consents were voluntary.
The majority, citing State v. Bates, 304 Or 519, 747 P2d 991 (1987), properly frames the issue as “whether
The majority bases it holding on State v. Morgan, 106 Or App 138, 806 P2d 713 (1991), rev den, 312 Or 235 (1991). There, the police received a report that someone had taken a person from a car at gunpoint. Defendant, who was driving a car that matched the description of the vehicle in the report, was stopped and ordered to leave the car. He was frisked, handcuffed and placed in a patrol car. After acknowledging that State v. Bates, supra, permits an officer to take reasonable steps for his or her own protection, we held that
“once defendant was taken out of the car and frisked, any concern about immediate danger dissipated, especially in light of [the officer‘s] description of defendant as ‘polite and cooperative.’ On these facts, we find that when defendant was handcuffed and placed in the patrol car, he was arrested within the meaning of
ORS 133.005(1) .” 106 Or App at 142. (Emphasis supplied.)
The striking factual differences between Morgan and this case compel the conclusion that, here, the officers’ concern for their safety had not dissipated when Eugene was handcuffed. In Morgan, the defendant was removed from his car and placed in a secure area - the back of a patrol car - that was not in immediate proximity to the officers. Eugene, on the other hand, remained in close proximity to the officers within the confines of a small motel room where a weapon could have been hidden and easily retrieved, especially in light of the fact that the officers were primarily focused on arresting Tracy. In addition, unlike the defendant in Morgan, Eugene was never frisked for weapons before he was handcuffed. Under the facts of this case, I do not believe that we
The primary flaw in the majority‘s analysis is that it fails to analyze the issues in the correct order. In State v. Morgan, supra, we held that the defendant was illegally arrested only after we had concluded that the handcuffing was an unreasonable officer safety measure. If we had instead determined that the cuffing was a reasonable safety precaution, then we never would have decided whether the handcuffing amounted to an illegal arrest because police conduct that is justified on the basis of safety concerns never constitutes an “unreasonable” search or seizure under Article I, section 9. State v. Bates, supra, 304 Or at 524. See also State v. Redmond, 114 Or App 197, 834 P2d 516 (1992) (warrantless seizure of weapons from defendant‘s person upheld as reasonable safety measure); State v. Kemp/Haworth, 112 Or App 522, 831 P2d 37 (1992) (warrantless seizure of rifle and search of front passenger area of car were reasonable steps for officer‘s protection); State v. Anfield, 100 Or App 692, 788 P2d 480 (1990), aff‘d, 313 Or 554, 836 P2d 1337 (1992) (warrantless seizure of bag sustained as reasonably necessary to ensure officer‘s safety); State v. Schellhorn, 95 Or App 297, 769 P2d 221 (1989) (warrantless seizure of purse justified as reasonable safety precaution). Consequently, the handcuffing of Eugene is not a “seizure” that offends Article I, section 9, if it is justifiable as a reasonable safety measure.1 Our initial focus therefore should be on whether the handcuffing was permissible under State v. Bates, supra. If it was, then the officers did not violate the constitutional protections embodied in Article I, section 9. If it was not, only then do we decide whether the handcuffing amounted to an illegal arrest.
In State v. Bates, supra, the Supreme Court held that Article I, section 9, permits a police officer
“to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific
and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.” 304 Or at 524. (Emphasis supplied.)
On judicial review, our inquiry is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the officer‘s action was taken. 304 Or at 525. See also State v. Faccio, 114 Or App 112, 115-16, 834 P2d 485 (1992).
It is indisputable that Rhodes did lawfully encounter Eugene in the motel room. The arrest warrant authorized the officers to arrest Tracy Teixeira.
It is also incontrovertible that the circumstances confronting Rhodes supported a reasonable suspicion, based on particularized facts, that Eugene might pose an immediate threat of serious physical injury to him and his fellow officers. As the trial court found:
“[Officer Rhodes] was in [the motel] room, he had arrested Mrs. Johnson, there was also another, unsecured person in the room. And though the attendant described it as large, we all know a motel, it was a single room and everybody was in the same space. And [Eugene] had his hand under the pillow. I‘m not saying there was anything in and of itself that suggested that [Eugene] was doing anything with his hand, but it certainly raises concern for the officer.
“And in particular this officer had information from a fellow officer, after he concluded what the identity was of [Eugene], to know that [he] had had a prior police contact that involved weapons taken off [him]. So I think [Rhodes] certainly had specific and articulable reasons to be concerned for his safety.”
In addition to those observations, I note that the officers were executing a felony drug-possession arrest warrant, which is an inherently highly dangerous operation. Indeed, Rhodes testified at trial that he found weapons on drug arrestees “anywhere from 25 percent of the time to maybe 40 percent of the time.” Moreover, as discussed previously, the warrant
Eugene argues, and the majority seems to agree, that it would have been more reasonable to frisk him rather than handcuff him. Bates, however, does not require that the officers choose the most reasonable alternative; it only requires that the steps taken are reasonable under the circumstances. In this case, they were. In any event, as the state points out in its brief, handcuffing a person may have distinct advantages over frisking him:
“Handcuffing does not involve the officer running his or her hands over the subject‘s body; thus it may be more palatable when the officer and the subject are of different sexes. A good thorough frisk takes time and, because dangerous hypodermic needles commonly are encountered on drug users, a frisk subjects the officer to the risk of being punctured and infected. Handcuffing, on the other hand, can be done quickly and involves little risk of encountering needles. A suspect, once frisked, remains a threat: He may attack with his hands or — particularly in the confines of a small room where the officers’ primary attention is on arresting someone else — he may grab an officer‘s gun. A handcuffed person is substantially disabled from doing these things.”
I recognize that an arrest is a significant invasion of a person‘s liberty and, as such, constitutes a “seizure” of the person under Article I, section 9. See State v. Gerrish, supra n 1. When it appears that such a seizure may have occurred, it is incumbent upon us to ensure that it was permissible. However, once we decide that the deprivation of a citizen‘s liberty is justifiable as a reasonable officer safety precaution, our inquiry is at an end and any seizure that may have resulted from the officer‘s conduct will not be found to have violated the Oregon Constitution. Thus, in balancing the individual‘s right to be free from restraint against the officer‘s right to take reasonable steps to protect himself and
“[I]t is not [the function of the courts] to uncharitably second-guess an officer‘s judgment. A police officer in the field frequently must make life or death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry is therefore limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made.” State v. Bates, supra, 304 Or at 524.
Because handcuffing Eugene was a reasonable step to protect Rhodes’ and his fellow officers’ safety, I conclude that any “seizure” of Eugene that may have occurred was not “unreasonable” within the meaning of