Defendant appeals from convictions for drug-related offenses based on evidence that officers discovered when they searched the parked vehicle that defendant had been driving after having questioned defendant and another person present in the vehicle. Defendant argues that the police officers’ questioning that led to the discovery of that evidence was the result of an illegal stop and, for that reason, the trial court erred in denying his motion to suppress. We are therefore called on to determine when the interaction between the arresting officers and defendant became a constitutionally significant seizure and whether, at that point, the police officer had reasonable suspicion of criminal activity. We affirm.
We state the facts consistently with the trial court’s findings of historical fact, which are supported by evidence in the record. State v. Hall,
Officers Newell and Lowe and two other officers were staking out the parking lot in unmarked cars, wearing plain clothes. Newell noticed a car driven by a woman arrive in the lot and park near a closed coffee kiosk. The woman who had been driving, Bennett, did not get out of her car but sat there observing the parking lot entrances for approximately five minutes, until defendant drove his taxi into the lot
Newell explained to Bennett — in a calm and casual tone — that their conduct seemed suspicious, and he told her that using the lot without patronizing one of the nearby businesses was trespassing. Newell noticed that the knuckles on Bennett’s hand were white and splotchy, as if she was clenching something in her fist. He asked Bennett if she had any drugs, which she denied, and then asked her what she had in her hand. Bennett was startled, and dropped four items, pretending that she had had nothing in her hand. Newell recognized the items as bindles of drugs and asked Bennett to step out of the cab. When he saw what had happened between Newell and Bennett, Lowe asked defendant to get out of the cab as well. Both defendant and Bennett then made incriminating statements. In addition, later examination revealed that the bindles did, indeed, contain drugs.
Based on several findings and conclusions that it made, the trial court denied defendant’s motion to suppress that incriminating evidence. First, the court concluded that a stop had occurred, at the latest, when Newell saw the bindles that Bennett dropped. Second, the court concluded that, regardless of when the stop occurred, the officers had reasonable suspicion concerning Bennett’s conduct when she entered defendant’s cab. According to the court, that suspicion was based on the totality of circumstances, including the reputation of the parking lot for drug activity, the fact that Bennett had parked and waited several minutes
After addressing the issue of reasonable suspicion, the court found that the officers conducted themselves in a “civil nonconfrontational [and non]coercive manner.” “There was no indication that they were coercive or * * * used some expression of excessive authority to prevent * * * or limit the liberties of the * * * [djefendant and the passenger.” The court noted that, in recent years, Oregon’s appellate courts “have expressed a different appreciation for the appropriateness of casual conduct, even as identified as detectives or police officers, such that simply the identification of themselves as law enforcement does not rise to the level of a seizure or a stop.” In making those findings, the court appeared to return to the question of whether the officers’ conduct had effected a stop before Newell observed the bindles. After the trial court denied his motion to suppress, defendant waived his right to a jury trial and proceeded by a stipulated facts trial to the court. The court found defendant guilty as charged. On appeal, defendant assigns error to the court’s denial of his motion to suppress.
We review a trial court’s ruling on a motion to suppress for errors of law, deferring to the trial court’s explicit and implicit factual findings. State v. Ehly,
In Ashbaugh, two police officers approached the defendant and her husband in a public park, took their identifications, and ran a warrant check on both of them. The warrant check revealed an active restraining order between the defendant and her husband, which led the officers to arrest the husband for violating the order. Then, after returning the defendant’s identification to her and leaving her alone for about five minutes to place her husband in a police car, the officers returned to the defendant’s location and, eventually, asked her for consent to search her purse. The defendant consented, and an officer discovered methamphetamine in the purse.
In determining whether the defendant had been seized before the search of her purse occurred, the Supreme Court reasoned that
“the officers had returned defendant’s identification to her and left her alone while completing the arrest and transportation of her husband. Thus, while it may have been true that defendant had been unlawfully detained by police some minutes before and had watched a clear show of authority directed at her husband, those circumstances had ended.”
Ashbaugh,
Defendant here contends that
“[a]ny reasonable person in [defendant’s circumstances] would believe that he was not free to ignore the officers’directions or exercise his freedom of movement by simply driving away. Rather, the detectives’ choreographed approach and intentional ‘contact’ had the very effect that the detectives intended. Both detectives testified that they had no intention of allowing Bennett or defendant to leave without satisfying their drug-activity and trespassing concerns. Every action of the officers — approaching a relatively isolated vehicle, interrupting a couple who had just met, taking positions that blocked both of the taxi’s exits, rapping the window, flashing badges, and making thinly-veiled accusations of deleterious behavior— constituted a show of authority over defendant. That show of authority forcefully conveyed to defendant that he was under the scrutiny of law enforcement officers who wanted him and his companion to justify their behavior. Simply put, the detectives’ actions constituted a seizure under either subsection (a) or subsection (b) of the [Ashbaugh\ test.”
Unsurprisingly, the state takes a very different view of the evidence:
“But what occurred was not a stop, instead, it was mere conversation. The officers did not order defendant or Bennett to do anything and did not raise their voices or act in a coercive manner. Their actions, even in combination, did not constitute a restraint on defendant’s liberty.”
Because the officers here had (at least) reasonable suspicion to detain defendant when Bennett dropped the bindles of drugs, in deciding whether defendant was unlawfully seized, we focus on the period of time before that occurred. That inquiry takes us on another partially charted voyage into a sea of factual cross-currents in the wake of Ashbaugh. The confluence of several facts suggest that, in the totality of circumstances, there was no constitutionally significant seizure of defendant before Newell saw Bennett drop the bindles of drugs. Among those facts are the following: (1) the officers engaged defendant and Bennett in a calm, casual, and conversational tone and manner; (2) the officers used no physical force and made no threats; (3) there were no flashing lights or drawn weapons; (4) the officers did not ask for or retain the identifications of the vehicle’s occupants; and (5) the officers did not direct the occupants to leave the vehicle or otherwise dictate or restrict their
In Ashbaugh, the court was particularly struck by the fact that the arresting deputy “did not, for example, position himself and his fellow officer in a way that would suggest to defendant that [he] was surrounded,” and, thus, the mere presence of a second officer was not a sufficient basis for us to conclude that the deputy’s “manner or action” involved a “show of authority.”
Moreover, questions from a police officer to a citizen — even questions an ordinary citizen would regard as offensive — do not, by themselves constitute a sufficient show of authority to effect a seizure. Ashbaugh,
Taken together, we conclude that the concerted interaction of the two officers and the nature of their engagement with the vehicle’s occupants did not constitute a sufficient show of authority to countervail all of the other facts that we have identified that suggest that no unlawful seizure occurred before Bennett dropped the bindles of drugs. It follows that, up to that point, (a) the officers did not significantly restrict, interfere with, or otherwise deprive defendant of his liberty or freedom of movement, and (b) in terms of the pertinent legal rubric, a reasonable person under the totality of the circumstances would not believe that (a) above had occurred. Because the police had not seized defendant before they had reasonable suspicion to believe that he and Bennett had committed a crime, the trial court did not err in denying defendant’s motion to suppress.
Affirmed.
Notes
The officers acknowledged that they did not intend to permit the occupants of the vehicle to leave without determining whether they were engaged in a drug transaction. However, there was no evidence that they communicated those intentions to the occupants or, as explained below, that they acted upon them so as to significantly restrict defendant’s liberty or freedom of movement. Accordingly, the officers’ subjective intentions are not dispositive in determining when a stop occurred. State v. Smith,