Thе state appeals from a trial court order suppressing evidence acquired as the result of a motor vehicle stop. The state contends that the trial court erred in concluding that the deputy who performed the stop did not have reasonable suspicion to believe that defendant had committed a crime. ORS 131.615(1). We review fоr errors of law, ORS 138.220, and reverse.
At 2:51 a.m. on April 24, 1998, a named citizen informant telephoned the Washington County Sheriffs Office and reported a “car prowl” in progress at the parking lot of the Tapióla Manor Apartments on 180th Avenue in Aloha. She reported that she was observing two people breaking into a car and described the suspects аs two 20- to 25-year-old males with dark hair, and wearing dark clothing. Deputy Branch was nearby and
Branch turned on his overhead lights, and defendant pulled his vehicle to the side of the road. Branch approached the driver’s side of the vehicle and told the suspects to keep their hands in sight. Branch testified that he recognized the two men in the vehicle based on his prior experience as a gang enforcement officer. He recognized defendant, in particular, because he had once arrested him. Within a short time of the stop, Deputy Obenauf arrived at the scene and walked to the passenger side of the car. The deputies, who could see into the vehicle, observed surgical gloves and various tools on the floor of both the passenger and the driver’s sides of the car. Branch asked defendant to step out of the car and patted him down while Obenauf spoke with the passenger. 2 In Branch’s pat-down of defendant, he discovered another pair of surgical gloves, a screwdriver and a pair of surgical scissors. The deputies then searched the car, its glove box and trunk, and discovered an amplifier, a CD changer with no serial numbers, a glasscutter, a flashlight, a “Leatherman” multi-purpose tool, and another screwdriver. At some point, a third deputy, Kisor, arrived at the scene, accompanied by thе citizen informant who had reported the alleged crime. The informant identified the suspects as the men she had observed breaking into the car in the Tapióla Manor parking lot.
At trial, defendant moved to suppress the evidence that was obtained as á result of the stop, including the identification by the citizen informant, arguing that Branch did not have reasonable suspicion for the stop. The trial court granted defendant’s motion, finding that Branch had a subjective belief that defendant had committed the reported crime, but that his belief was not objectively reasonable. Specifically, the court found:
“[T]here were numerous apartments and homes in the neighborhood. The court finds it was dark on the evening in question. The Court finds Dep. Branch did not get a good look at the vehicle’s occupants. The Court finds Dep. Branch based his stop on the description of two young males, 20-25, with dark hair and dark clothes. However, the Court finds Dep. Branch could not have been able to tell whether the occupants were wearing dark clothing or whether thеy were male or female. The Court finds that the startled appearance of the suspects was not unusual under the circumstances. The court finds the suspects were the only individuals on the road at that time.”
The state assigns error to the trial court’s granting of defendant’s motion to suppress.
A peace officer may stop a person temporarily in order to make a reasonable inquiry of that person if the officer “reasonably suspects” that the person has committed a crime. ORS 131.615(1). “ ‘Reasonably suspects’ means that a peace officer hоlds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts as authorized in ORS 131.605 to 131.625.” ORS 131.605(5). A law enforcement officer has reasonable suspicion and, thus, is permitted to stop an individual for investigation, if the officer can point to specific and articulablе facts that gave rise to the officer’s suspicion that the individual committed a crime.
State v. Ehly,
The trial court concluded that Branch was not reasonable in relying on the above facts to infer that the suspects were the same individuals that the citizen informant had observed prowling, because Branch “could not have been able to tell whether the occupants were wearing dark clothing” or “whether they were male or female,” and “the startled appearance of the suspects was not unusual under the circumstances.”
In reviewing the record in this case, accepting only those facts that the trial court found, we are satisfied that Branch identified specific and articulable faсts that were “sufficient as a matter of law to give rise to an inference that a reasonable officer would hold the required subjective belief.”
State v. Belt,
It is true that there are possible lawful explanations for defendant’s behavior that Branch observed. Again, however, the fact that there are possible lawful explanations for behavior does not mean that it may not also give rise to reasonable suspicion of criminal activity.
Crites,
Defendant argues, alternatively, that the trial court was correct in granting his motion to suppress because the citizen informant’s report lacked sufficient reliability to justify the stop. Defendant is correct that, “when reasonable suspicion is based solely on a citizen informant’s report, thаt report must contain some indicia of reliability.”
State v. Villegas-Varela,
In a cross-assignment of error, defendant argues that the deputies did not have probable cause to search his persоn and the car that he had been driving. That deficiency, defendant contends, provides an alternative basis to affirm the trial court’s grant of defendant’s motion to suppress. The state responds that the deputies were permitted to search defendant as a search incident to a lawful arrest. 3
A warrantless search is unreasonable unless it fаlls within one of the few recognized exceptions to the warrant requirement of Article I, section 9, of the Oregon Constitution.
State v. Nagel,
“when it relates to a crime which there is probable cause to believe that the arrestee has committed, and when it is reasonable in all the circumstances. This probable cause requirement properly limits the objects to be sought in searches incident to arrest, and thus limits the intensity of the search.”
State v. Owens,
Both Branch and Obernauf testified that the citizen informant’s description of the suspects, the tools and surgical gloves that the officers observed in plain view, the officers’ experience, and Branch’s familiarity with defendant, led them to believe that it was more probable than not that defendant had committed the crime. Evidence in the record supported the trial court’s finding that Branch had subjective probable cause to arrest defendant.
State v. Corning,
Defendant’s second cross-assignment of error concerns the trial court’s ruling
The determination of whether an identification should be excluded as unreliable involves a two-step process:
“First, the court must determine whether the process leading to the offered identification was suggestive or needlessly departed from procedures!.] If so, then the prosecution must satisfy the court that ‘the proffered identification has a sоurce independent of the suggestive confrontation’ or photographic display, or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure.” State v. Classen,285 Or 221 , 232,590 P2d 1198 (1979) (citation and footnote omitted).
See also State v. Najibi,
We have held, on facts analogous to those presented here, that on-scene identifications were nоt overly suggestive or unlawful.
See State v. Ott,
Here, there was nothing impermissibly suggestive about the identification of defendant. The witness told Deputy Kisor that she could identify the men if she saw them again. Shortly after she had reported the car prowling to the police, Kisor took her to the location where defendant was stopped. Kisor slowly drove her by the suspects. The overhead lights of the patrol cars were not illuminated. Although the suspects’ hands were cuffed behind their backs,
Reversed and remanded.
Notes
As noted below, the trial court found that Branch could not have determined whether the car’s occupants were wearing dark clothing or whether they were male or female.
In Obenaufs conversation with the passenger, he learned that the car belonged to defendant’s mother. The deputies ultimately called defendant’s mother, who spoke Vietnamese and had only a cursory understanding of English. Although she consented to a search of the car, the trial court found that hеr consent was invalid. The court agreed, however, with the prosecutor’s alternative argument that the search was valid as a search incident to a lawful arrest. On appeal, the state concedes that defendant’s mother’s consent was invalid. Accordingly, we do not consider that issue.
The state also argues that the search of the car was a valid warrantless search under the “automobile exception.” In light of our disposition, we do not address the state’s alternative argument.
Although the trial court orally rejected defendant’s argument on this issue, the court’s written order grants the motion to suppress without specifically identifying which evidence was suppressed under the order. Accordingly, although the trial court apparently did not intend to suppress this evidence, technically the written order did suppress the evidence.
See, e.g., State v. Swain/Goldsmith,
On cross-examination, Branch adhered to his opinion that, while he might have reached the conclusion that the suspects were handcuffed, upon seeing the two men with their hands behind their backs, he did not believe that the witness would logically draw that same conclusion. It is unclear from the record whether the witness believed that the men were handcuffed.