In this criminal case, defendant appeals the trial court’s judgment convicting and sentencing him for one count of carrying a concealed weapon, ORS 166.240.
Whether an officer has unlawfully extended an otherwise lawful traffiс stop in violation of Article I, section 9, is a question of law that we review for errors of law. State v. Ehly,
“rival gangs will come into another gang’s area and scratch out, you know, whoever is claiming the turf or the area, scratch out their logo and put up their own. So it’s a fight for power.”
Shortly after midnight on July 23, 2009, Galbreath, who was in uniform and driving a marked patrol car, saw defendant and another man, Delgado, walk across 172nd Avenue against the traffic light, which is a Class D traffic violation. ORS 814.020(l)(b), (3). Galbreath pulled over and got out of his patrol car to talk to defendant and Delgado. He asked them what they were doing out so late at night. Defendant and Delgado pointed out some fresh graffiti on a nearby garage door. They told Galbreath that they were part of a neighborhood patrol and had come out because they had received a telephone call that someone had been spraying graffiti in the area. Galbreath told them that he had seen them cross the street against the traffic light.
Galbreath noticed that Delgado had what appeared to be a gang tattoo and asked both Delgado and defendant what gang they were in. Defendant answered that they were members of the Paso Robles Boys (PRB). Galbreath was familiar with that gang and had seen “a lot” of their tags in the Gresham area. The fresh tag was not a PRB tag. Defendant told Galbreath that he and Delgado had been stopped earlier that night by the gang team and that they had already been checked for warrants. Galbreath asked defendant and Delgado for their gang nicknames, which they provided and he wrote down. Galbreath then asked defendant for his real name, which defendant also provided.
Sergeant Hernandez, who was part of the gang team, arrived. Like Galbreath, he was in uniform and driving a marked patrol car. He got out of his patrol car and stood next to Galbreath. He confirmed that the gang team had stopped defendant and Delgado earlier and they did not have any warrants.
About 10 minutes after he first contacted them, Galbreath asked defendant and Delgado if he could search them for guns. Delgado put his hands on his head, walked over to Galbreath, and turned around. Galbreath searched him, finding nothing. Galbreath turned to defendant and said, “How about you?” Defendant put his hands on his head and said, “I have my dagger in my left pocket.” With defendant’s hands above his head, Galbreath could see the hilt of the dagger, which had previously been concealed by defendant’s shirt. Galbreath seized the dagger and arrested defendant for carrying a concealed weapon.
Before trial, defendant moved to suppress all evidence obtained as a result of Galbreath’s request for consent to search. Citing Hall, defendant asserted that his cоnsent was invalid because it was the product of an unlawful seizure, specifically, an unlawful extension of the traffic stop. In response, the state contended that the encounter between defendant and Galbreath was not a stop and, even if it was, during its course, Galbreath developed reasonable suspicion that defendant was carrying a weapon.
At the hearing on the motion, the prosecutor questioned Galbreath about why he had asked to search defendant and Delgado and whether he had reasоnable suspicion that they were carrying weapons.
“[PROSECUTOR]: And why did you ask to search [them]?
“[GALBREATH]: Because there’s — their gang activity and gang involvement. A lot of times I run into the gang— people involved in gangs, they’ll have spray paint, a lot of graffiti coming up and down 172nd and there was graffiti*162 right behind them, looking for weapons, graffiti implements, guns, things they shouldn’t have.
“[PROSECUTOR]: Given the tagging that was going on and their stated reason for being out, did you think it was reasonable or did you have a reasonable suspicion that they were carrying weapons?
“[GALBREATH]: I’ve ran into many gangsters that carry weapons, especially knowing that the tagging behind them was not their own and they were out on their neighborhood patrol, which I don’t know of any neighborhood patrol there.
‘You know, I was getting to the point where I believed that it might be coming out for the retaliation tagging of their turf.”
Thus, Galbreath testified that he asked to search defendant and Delgado because of “their gang activity and gang involvement.” As to whether he had reasonable suspicion that defendant and Delgado were carrying weapons, Galbreath testified that he had encountered many gang members who carry weapons and that he thought defendant and Delgado might be coming out to retaliate for the tagging of their gang’s territory.
Concluding that Galbreath had stopped defendant, the trial court stated that defendant was “not free to go” and “[defendant] knew it and it was objectively reasonable for him to know it.” The trial court also concluded that Galbreath’s request to search extended the traffic stop “beyond its legitimate purpose.”
Turning to the question of whether the extension of the stop was lawful, the trial court concluded that the extension was not justified as an officer safety measure, stating that “[t]here’s no officer safety discussion here at all.” But, the trial court concluded that the extension was justified as a criminal investigatory stop because the officer, in the trial court’s view, had reasonable suspicion that defendant was carrying a concealed weapon.
The trial court acknowledged that there was no evidence that defendant or members of his gang had carried weapons in the past. But, the trial court focused on
“[T]here is at least a suggestion that we’re in [PRB’s] territory because the[y’re] doing a neighborhood patrol and the[y’re] concerned with some other gang, so we got that. It’s their territory or the officer rеasonably believes that.
“So [the officer] knew *** by the time he asked for consent to search for weapons, that the defendant was responding to a call about tagging. He knew from his training and experience that tagging is the focus of gang violence.
“And he knew from statements of the parties he was confronting that they were responding to such a call and concerned about such an event. I think the State gets there.
“*** [I]t is a particularized suspicion that these gang members under these circumstances at this time and place, responding to a call of a rival gang members tagging, would come armed.”
The trial court noted that Galbreath could have “done a bit more to articulate” the bases for his suspicion but that it understood Galbreath to have meant that defendant and Delgado were gang members “responding to a rival gang’s tag” and that “gang members often resort to violence about such things.” Thus, the trial court concluded that Galbreath suspected that defendant and Delgado were armed and that Galbreath’s suspicion was objectively reasonable.
On appeal, the parties renew the arguments they made in the trial court. Defendant argues that Galbreath’s request to search defendant for weapons unlawfully extended the traffic stop because it was not supported by objectively reasonable suspicion that he was carrying a concealed weapon. In response, the state makes two arguments. First, the state argues that Galbreath did not
As mentioned, whether an officer has unlawfully extended an otherwise lawful traffic stop in violation of Article I, section 9, is a question of law that we review for errors of law. Ehly,
We turn first to the issue of whether Galbreath stopped defendant. For Article I, section 9, purposes, a stop is a type of seizure. State v. Ashbaugh,
“[a] ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movemеnt; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.”
Ashbaugh,
An officer stops a person when the officer engages in conduct that would cause the person to believe that the officer is conducting an investigation that could result in the person’s citation or arrest at that time and place. State v. Thompkin,
Likewise, we have held that, when an officer tells a person that the person has committed a violation or crime, the officer has stopped the person. For example, in State v. Terhear/Goemmel,
“[The officer] began the encounter by telling [the defendant] that he had just seen him break the law. An ordinary citizen, faced with such a statement by a uniformed police officer, would not believe that he or she was free to leave. Rather, a person in [the defendant’s] position would reasonably believe that he or she was not free to go until the officer took some further action, such as issuing a citation or telling the individual that he or she could move on. Common experience and common sense permit no other answer.”
Id. at 458 (emphasis added).
Similarly, in State v. Allen,
In this case, the state contends that the trial court’s conclusion that Galbreath stopped defendant is “certainly debatable.” However, under Terhear / Goemmel and Allen, it is not. Galbreath told defendant that he had seen defendant and Delgado cross against the light. That is, he told them that he had just seen them break the law. As in Terhear! Goemmel and Allen, a reasonable person in defendant’s position would believe that he was the subject of an ongoing investigation and was not free to leave until Galbreath either gave him a citation or indicated that he was free to go. Thus, like the trial court, we conclude that Galbreath stopped defendant.
Defendant acknowledges that Galbreath lawfully stopped defendant for the traffic viоlation. See State v. Matthews,
An officer conducting a traffic stop may not extend the duration of the stop by inquiring about unrelated matters unless the inquiry is supported by reasonable suspicion that the person has engaged in criminal activity, State v. Rodgers,
Applying that rule, we conclude that, in this case, Galbreath extended the traffic stop by requesting consent to pat down defendant for weapons. The request was not relаted to the reason for the stop, and it did not occur during an unavoidable lull in the stop. Instead of investigating the traffic violation, issuing a citation, or releasing defendant, Galbreath asked defendant if he would consent to a patdown. Thus, the final — and dispositive — issue in this case is whether Galbreath’s request to pat down defendant was supported by reasonable suspicion.
The state argues that Galbreath had reasonable suspicion that defendant was engaged in criminal activity.
To be objectively reasonable, an officer’s suspicion must be based on specific and articulable facts. Ehly,
Thus, as we have held in the context of cases involving searches for officer safety purposes, general information that gang members carry weapons is insufficient to give rise to a reasonable suspicion that a particular gang member is carrying a weapon. State v. Pope,
But, general information can combine with particular information about a person’s conduct to give rise to reasonable suspicion. See Miglavs,
Galbreath knew that rival gangs were involved in disputes in the area, including disputes about their territories. He also knew that gangs marked their territories with graffiti tags and that, if one gang marked another’s territory, it caused conflict. Tagging was, in Galbreath’s words, part of “a fight for power.” Galbreath also knew that many gang members carried weapons — he personally had found a variety of different types of weapons on gang members — and that their conflicts sometimes involved violence, including stabbings and shootings. Thus, Galbreath had information from which he could reasonably infer that gangs regard tagging by other gangs as intrusions into their territory, that the intrusions prompt retaliation, and that, because many gang members carry weаpons and their conflicts sometimes involve violence, gang members presently engaged in retaliation for an intrusion into their territory will be prepared for conflict, including violent conflict.
In addition to the general information Galbreath had about gangs, he also had particular information about defendant. Galbreath knew that defendant was a gang member, that he and Delgado had received a call about a fresh tag and had responded by coming to the location of the tag, and that they were, in their own words, out on “neighborhood patrol.” In addition, Galbreath knew that the fresh tag had not been placed by defendant’s gang.
Considering both the general information Galbreath had about gangs and tagging and the particular information he had about defendant and his activities, Galbreath could reasonably infer that defendant’s gang would regard the fresh tag as an intrusion into their territory. He could also infer that defendant, who had received a call about the tag and had come out in response to that call with another gang member, would be preрared to respond to the intrusion.
In so doing, we emphasize that the issue in this case is whether Galbreath had objectively reasonable suspicion to request consent to search, not probable cause to search or arrest. And, like the trial court, we emphasize that our conclusion is based on the evidence about gangs and tagging in general together with the evidence about defendant’s particular activities, most notably that, together with another gang member, he had been called to respond, and was responding tо, a fresh tag by a rival gang.
Affirmed.
Notes
ORS 166.240(1) provides:
“Except as provided in subsection (2) of this section [which applies to certain peace officers], any person who carries concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force, any dirk, dagger, ice pick, slungshot, metal knuckles, or any similar instrument by the use of which injury could be inflicted upon the person or property of any other person, commits a Class B misdemeanor.”
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[.]”
Terhear/Gommel involved a violation of the statute, ORS 810.410(3)(b), governing traffic stops. But, as we have held, its reasoning is “equally applicable” in an Article I, section 9, analysis. State v. Allen,
We distinguished the facts oí Allen from those in State v. Baker,
The state also argues that Galbreath had reasonable suspicion that defendant posed an officer safety threat. That argument is not supported by the record. There is no evidence that Galbreath’s request for consent to patdown defendant was based on officer safety concerns. As the trial court stated at the hearing on defendant’s motion to suppress, there was “no officer safety discussion here at all.” Indeed, as the prosecutor himself said at the hearing, “I don’t think [Galbreath] had officer safety issues ***. [H]e didn’t express officer safety concerns ***.”
Even assuming Galbreath had expressed such concerns, they would not have been objectively reasonable because there is no evidence that defendant and
To the extent that defendant argues that the earlier check by the gang team made Galbreath’s suspicion of defendant less reasonable, we reject that argument. There is evidence in the record that the earlier “check” by the gang team included a “check” for outstanding warrants, but no evidence that it included a patdown for weapons. In addition, there is no evidence in the record about how much time had elapsed between the two encounters. Even if the gang team had patted down defendant for weapons earlier, he could have obtained a weapon in the interval.