Defendant appeals a judgment convicting him of one count of identity theft, ORS 165.800, one count of unlawful possession of
We review a trial court’s denial of a motion to suppress for errors of law, and are bound by the trial court’s factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Ehly,
On the morning in question, Officer Moffitt was on patrol duty. He received a call from dispatch to respond to a disturbance at a home where a woman named Jennifer Velek resided. Velek’s mother had called the police and reported that Velek had called her and said that someone named Antwon Wilson was at her house and was threatening to break things. Velek’s mother reported that she could hear a lot of yelling in the background when she was speaking to her daughter, and she requested that the police go to Velek’s home. Moffitt knew Velek, had been to her home on numerous occasions, and was familiar with the layout of the residence. Corporal Welsh, an officer who also responded to the call, believed that the behavior Velek’s mother had reported could constitute menacing, assault, or criminal mischief.
Ten minutes after Velek’s mother called the police, Moffitt and Welsh arrived to investigate the disturbance. They parked a few houses away and walked on the sidewalk toward Velek’s home. When they were near the home, they saw defendant walking down Velek’s driveway. Based on his knowledge of the layout of Velek’s home, Moffitt was certain that defendant had come from the home. Defendant, who did not see the two officers, reached the sidewalk and turned in the direction away from the officers.
Moffitt believed that defendant might have been involved in the disturbance at Velek’s home, and he called out to defendant and asked to speak with him. Defendant looked toward the officers, put his hands in his pockets, and continued to walk away from them. Moffitt “began to address [defendant] more[,]” identifying himself as a police officer, and directing defendant to “come back” and speak to the officers. Defendant stopped and turned toward the officers, and Moffitt instructed defendant to take his hands out of his pockets. Defendant took his hands out of his pockets, and then he began to walk a little bit faster back towards the house, putting his hands in his pockets again.
Defendant’s actions led Moffitt to believe that defendant might have a weapon and that he would barricade himself inside Velek’s home. Moffitt called out to defendant at least three more times, and defendant finally stopped at the front porch of Velek’s home. The officers approached defendant, and Moffitt asked defendant if he had any weapons. When defendant denied that he had any weapons, Moffitt asked if he could search him, and defendant said that he could. Moffitt had defendant turn and face away from him and interlace his fingers behind his back. Moffitt took hold of defendant’s fingers and asked defendant if he had any weapons or drugs. Defendant said that he did not. Moffitt again asked defendant if he could search him, and defendant said that he could.
Moffitt searched defendant and felt a methamphetamine pipe in his front pocket. Defendant admitted to Moffitt that the pipe had methamphetamine residue in it. Defendant told Moffitt that he had taken the
The officers eventually questioned defendant, who gave them a false name and a false birth date. The officers also discovered a Mexican-issued identification card with the same false name in defendant’s wallet. Based on the false identification information that defendant provided, as well as the methamphetamine pipe, the methamphetamine residue, the scale, and defendant’s intention to remove those items from Velek’s house, the state indicted defendant for identity theft, unlawful possession of methamphetamine, giving false information to a police officer for a citation, and tampering with physical evidence.
Defendant moved to suppress all of the evidence derived from Moffitt’s search, arguing that the officers had stopped him without reasonable suspicion that he had committed a crime, thereby violating his rights under Article I, section 9, and under the Fourth Amendment to the United States Constitution.
On appeal, defendant argues that the trial court correctly concluded that the officers stopped him, but he asserts that the trial court erred in determining that the officers had reasonable suspicion to justify the stop. Defendant first asserts that the initial disturbance call to the police was unreliable, and, thus, could not support an objectively reasonable suspicion that a crime had been committed. Next, defendant argues that the call did not necessarily “indicate criminal activity.” Finally, defendant argues that the officers did not have objectively reasonable suspicion that defendant was the one involved in the disturbance.
The state concedes that “Moffett stopped defendant when he called out for defendant to stop so that the officers could speak with him[,]” but it argues that the stop was supported by reasonable suspicion. The state asserts that the disturbance call was sufficiently reliable to establish reasonable suspicion. Additionally, the state argues that “although Velek’s mother did not specifically report that [Wilson] was committing a crime inside her daughter’s residence, it was reasonable for Moffitt to believe that a crime of some sort had occurred or was about to occur.” Finally, the state contends that, because Moffitt — based on his previous visits to Velek’s home — was certain that defendant had just left the home and because defendant avoided the officers, there was reasonable suspicion that defendant was the one who had caused the disturbance.
“Article I, section 9, requires the police, before stopping an individual, to have reasonable suspicion that the individual is involved in criminal activity. In the absence of reasonable suspicion (or some other permissible concern, such as officer safety), the individual has the right to be free from police interference and may terminate an encounter with police at will.” State v. Unger,
“When reasonable suspicion is based solely on a citizen informant’s report, that report must contain some indicia of reliability.” State v. Villegas-Varela,
“One is whether the informant is exposed to possible criminal and civil prosecution if the report is false. That factor is satisfied if the informant gives his or her name to law enforcement authorities or if the informant delivers the information to the officer in person. The second factor is whether the report is based on the personal observations of the informant. An officer may infer that the information is based on the informant’s personal observations if the information contains sufficient detail that it is apparent that the informant had not been fabricating the report out of whole cloth and the report is of the sort which in common experience may be recognized as having been obtained in a reliable way. The final factor is whether the officer’s own observations corroborated the informant’s information. The officer may corroborate the tip either by observing the illegal activity or by finding the person, the vehicle and the location substantially as described by the informant.”
Id. (internal quotation marks and citations omitted). However, even if the second factor is not satisfied, the reliability of the report is not necessarily undermined. See State v. Mitchele,
“ [t]he report’s details, including the description of defendant’s clothing, location, and actions, are sufficient to show that neither the caller nor the caller’s wife had fabricated the report. Further, defendant fail[ed] to present a reason why either the caller or the caller’s wife would fabricate the information, and their spousal relationship suggests that the caller would and did believe the source of the information and that the information had been reliably obtained.”
Id. at 92.
Here, because Velek’s mother provided her name to the police when making her report, defendant concedes that the first factor is satisfied. See id. at 91-92. As for the second factor, defendant points out that “the tip in this case was not based entirely on [Velek’s mother’s] own personal observations [,]” and, the tip “did not provide a detailed description of the alleged perpetrator or * * * the alleged criminal activity.” Defendant concedes that “the second-hand nature of the information did not trouble the court in Mitchele” but he asserts that “this case is distinguishable” because, as compared to the “highly detailed” report in Mitchele, “which supported an inference that it was based on personal observations [,] [h]ere, *** the information supplied to [Velek’s mother] by [Velek] * * * indicated only that someone named [Wilson] was yelling and threatening to break things.” For its part,
Despite the parties’ focus on Velek’s mother’s report, we need not determine whether the report was sufficiently reliable, because, even assuming that it was, the facts known to the officers at the time of the stop — including the information from Velek’s mother — were not sufficient to support an objectively reasonable conclusion that a crime had occurred. On this point, Moore,
In Moore, a landowner whose property was in a rural and densely wooded area contacted the police to report that two “suspicious” individuals had “parked a vehicle on her property.” The landowner described the individuals’ vehicle and license plate to the police dispatcher but did not report that she had told the individuals that they were on her property or that she had asked them to leave. Rather, she reported that she had asked them if they needed help; they had declined and told her they were working at a nearby Christmas tree farm. Id. at 87. A deputy responded to the call and found the defendant’s car — which matched the landowner’s description — on the shoulder of a paved, public road. The deputy could not determine whether the vehicle was on the landowner’s property. Id. at 87-88. Shortly after the deputy arrived, the defendant walked out of some nearby woods and returned to the car. When questioned, the defendant told the deputy that he had been hunting mushrooms on the property and that he had permission from the owner — someone other than the landowner who initiated the report — to be there. The deputy proceeded to stop the defendant and ultimately obtained the defendant’s consent to search him for weapons. During the search, the deputy found drugs. Id. at 88.
The defendant moved to suppress all evidence from the search, and the trial court denied the motion. Id. at 88-89. Similar to this case, the defendant argued on appeal that (1) the landowner’s report was not sufficiently detailed to be reliable; (2) the deputy’s observations did not sufficiently corroborate the report; and (3) the report and the deputy’s observations did not establish the elements of the offense of trespassing. We concluded that the defendant’s third argument was correct, and did not address the first two. Id. at 90.
We examined the elements of criminal trespass, noting that the crime requires an individual “‘[t]o enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so.’” Id. (quoting ORS 164.205(3)(a)). We stated that “property is open to the public — and not subject to criminal trespass — when some characteristic of the property objectively would cause a reasonable person to believe he or she is free to enter or remain on the property without permission, even if the owner intends the property to be private and requires permission to be there.” Id. at 91.
Against that backdrop, we first noted that the location of the defendant’s vehicle on the side of the road did not support a reasonable belief that the defendant was trespassing, because it was customary for vehicles to park on the shoulder of the road and there were no characteristics of the shoulder that might have communicated to a reasonable person that it was private property instead of part of the public road. Id. at 91-92. We then stated that the landowner’s description of the individuals as “suspicious” and as refusing help did not make it any more likely
In this case, Welsh believed that the disturbance could involve the crimes of menacing, assault, or criminal mischief. We examine each crime in turn. A person commits the crime of menacing “if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.” ORS 163.190. However, Velek’s mother did not report that Wilson had placed Velek or anyone else in fear of physical injury; rather, she reported that Wilson was threatening to break Velek’s belongings. For an individual to commit any degree of assault, the individual must cause physical injury to another person. See ORS 163.160; ORS 163.165; ORS 163.175; ORS 163.185. But Velek’s mother did not report any violence, physical injuries, or any imminent violence. Finally, for a person to commit any degree of criminal mischief, the person must damage, interfere, or tamper with in some way the property of another. See ORS 164.365; ORS 164.354; ORS 164.345. Thus, without more, Wilson “threatening” to break things and yelling could not constitute criminal mischief. Additionally, the officers did not observe anything that would lead to a reasonable inference that menacing, assault, or criminal mischief was occurring or had recently occurred. For example, they did not witness any violence, encounter any injured people, hear items breaking, or observe broken objects. As such, similar to Moore, although the officers had received a call from an identified person, the information that the caller provided, in context with the circumstances that the officers observed, was insufficient to give rise to an objectively reasonable suspicion that defendant had committed any of the crimes Welsh mentioned.
The state itself does not identify any crimes for which reasonable suspicion existed at the time of the stop. The state asserts that the officers had reasonable suspicion that defendant may have committed a “number of possible crimes [,]” and that “although Velek’s mother did not specifically report that [Wilson] was committing a crime inside her daughter’s residence, it was reasonable for Moffitt to believe that a crime of some sort had occurred or was about to occur [,]” but the state does not identify what crime or crimes the officers could have reasonably suspected.
The cases the state cites to support its argument that Moffitt had reasonable suspicion to stop defendant are distinguishable because, unlike the facts presented here, in each of those cases, the officer had information that the defendant had committed a specific crime. See State v. Belt,
Accordingly, we conclude that, even assuming that Velek’s mother’s report was reliable, the report did not give rise to an objectively reasonable suspicion that a crime had been committed. Given that conclusion, we need not address whether the officers reasonably suspected that defendant was the one who had engaged in the reported conduct.
Our determination that defendant was unlawfully stopped for purposes of Article I, section 9, means that the evidence must be suppressed unless the state proves “that the consent was voluntary and was not the product of police exploitation of that illegality.” State v. Musser,
Reversed and remanded.
Notes
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!.]”
The Fourth Amendment to the United States Constitution provides that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Because we conclude that the evidence should have been suppressed under Article I, section 9, we need not address defendant’s arguments under the Fourth Amendment.