On appeal from a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894, defendant assigns error to the trial court’s denial of his motion to suppress. Defendant concedes that police officers stopped him lawfully to investigate possible criminal activity, but he contends that officers unlawfully extended that stop past the point at which the justification for it dissipated, thereby effecting an unlawful seizure. Defendant further contends that a police officer obtained the evidence in question through exploitation оf that unlawful seizure and the trial court should, therefore, have granted his suppression motion. We agree. Accordingly, we reverse and remand.
Except as noted below, we state the facts consistently with the trial court’s explicit and implicit factual findings that the record supports. State v. Culley,
Defendant’s son Levi was driving the car and defendant, who owned the car, was in the front passenger seat.
Sergeant Weaver arrived at the scene shortly after the stop and began to act as a cover officer for Dodds. Weaver assisted Dodds in arresting Levi and placing him in the back of Dоdds’s patrol car. Weaver, who had extensive experience as a narcotics officer, saw what appeared to be scabbed injection sites on Levi’s arms that were consistent with intravenous methamphetamine use.
While Dodds processed Levi’s arrest paperwork in his patrol car, Weaver went to the passenger side of defendant’s car and spoke with defendant, who remained in the passenger seat. Weaver, who was continuing to investigate potential car prowls, asked for defendant’s name and date of birth, checked his information, and found no indication of criminal activity. Weaver described the conversation with defendant as “very low key.” Weaver looked in the car through the windows for anything dangerous or related to potential car prowls, and he noticed a butane torch behind the driver’s seat on the back floorboard. Weaver described the torch as “not huge”; such torches usually are “about six, seven inches” and have a metal tube where the flame comes out, linked by a valve assembly to a bottle of butane or propane. Weaver knew that people frequently use such torches in conjunction with smoking methamphetamine; he also knew that the torches may be used for other purposes.
Weaver also saw a small, black bag on the driver’s side floorboard. He asked defendant for consent to search the bag. Defendant replied, “Yeah, that’s not a problem.” Weaver retrieved the bag from the vehicle and examined its contents. As he explained at the suppression hearing, Weaver found the bag’s contents — binoculars, two-way radios, and make up — to be “weird” and “curious,” but he did not view
A third officer, Bledsoe, arrived as additional backup while defendant and Weaver were talking. After Bledsoe arrived, Weaver asked defendant for permission to search the car, and defendant consented. Weaver asked defendant to step out of the car and continued to speak with defendant while Bledsoe searched the vehicle. Defendant told Weaver that he and Levi had just dropped off Levi’s girlfriend at her parents’ apartment. By then, Bledsoe had finished searching the car. He did not find any evidence of criminal activity.
At that point, Weaver testified, defendant would have been free to leave. However, Weaver did not tell defendant that he could leave. Rather, he continued to converse with defendant, asking him if Levi and his girlfriend had “some kind of a drug thing going on.” Defendant indicated that both Levi and his girlfriend had a “problem” with methamphetamine. Weaver then noticed that defendant also had marks consistent with intravenous methamphetamine use on his аrms. Weaver asked defendant about his arrest history, and defendant responded that he had been arrested four years earlier for possession of methamphetamine.
Weaver then asked defendant, “Is there anything on you I should be worried about?” to which defendant replied, “No.” Weaver acknowledged at the suppression hearing that he had not believed that defendant possessed a weapon or posed a danger to Weaver or anybody else present. Nonetheless, Weaver asked to search defendant’s pеrson to determine whether he possessed illegal drugs. Defendant consented. However, instead of waiting for Weaver to conduct a search, defendant emptied his pockets, placing items on the ground in front of Weaver and immediately stepping backwards. In Weaver’s experience, people who empty their own pockets after consenting to a search are typically trying to prevent the police from discovering something concealed on their person, so Weaver asked to search defendant himself, which defendant allowed.
Weaver patted the front coin pocket of defendant’s pants and felt something “mushy” that, in his experience, was consistent with a small bag of methamphetamine.
At no point during the encounter did the officers make demands of defendant or use threats or promises to gain defendant’s consent to search. Nor did the officers point their weapons at dеfendant or otherwise threaten him. However, although Weaver later testified that defendant could have left the scene, the officers never told defendant that their initial suspicion of possible criminal activity had abated or that he was free to leave.
The state charged defendant with unlawful possession of methamphetamine. Defendant moved to suppress the methamphetamine discovered in his pocket, as well as his subsequent statements. He argued that, by the time Weaver asked for consent to search defendant’s person, any reasonable suspicion of potential car prowls had abated and Weaver did not have enough information to support reasonable suspicion of drug possession. Therefore, defendant argued, Weaver’s request for consent to search constituted an illegal seizure under Article I, section 9, of the Oregon Constitution and evidence found as a result of that seizure should be suppressed.
The trial court denied defendant’s motion. The court first ruled that Weaver’s request for consent did not unlawfully extend the seizure, because it occurred during an “unavoidable lull” in the processing of Levi’s arrest. Alternatively, the court reasoned that Weaver “had reasonable suspicion at the time he requested consent to search Defendant’s person that Defendant was in possession of controlled substances.” After the court issued a written order denying defendant’s suppression motion, defendant entered a conditional guilty plea that reserved his right to appeal the suppression issue.
On appeal, defendant concedes that the officers acted lаwfully in stopping the car and investigating possible criminal activity — car prowling — but he renews his argument that the stop was unlawfully extended past the point at which reasonable suspicion of that criminal activity had dissipated. Specifically, defendant contends that Weaver’s
The state responds that the officers detained defendant for a reasonable period of time to investigate the reported criminal activity, suggesting that defendant’s seizure ended when Weaver and Bledsoe stopped their investigation into possible car prowls. In the state’s view, the officers then engaged defendant in “mere conversation,” during which defendant voluntarily consented to the subsequent seаrches. Further, the state argues that, even if the initial seizure was unlawfully extended, the officers’ discovery of the evidence was sufficiently attenuated from that illegality because defendant’s consent to search was voluntary.
We begin our analysis by considering (1) whether defendant was seized within the meaning of Article I, section 9, (2) if so, at what point in time, and (3) whether any such seizure was lawful. In doing so, we are bound by the trial court’s factual findings to the extent that the record supports them, and we review the trial court’s conclusions of law for legal error. State v. Williams,
Article I, sеction 9, guarantees that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure [.]” A constitutionally significant seizure occurs “(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 movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh,
In contrast to a stop or arrest, a noncoercive encounter — or “mere conversation” — between рolice officers and other individuals is not a seizure and it requires no justification. Id. Differentiation between a “stop” and a constitutionally insignificant “mere conversation” requires a fact-specific inquiry into the totality of the circumstances. State v. Paskar,
In arguing that he was seized throughout his interaction with the officers, defendant challenges the trial court’s analysis as applied to him, a passenger in the vehicle. He asserts that the trial court erred “in limiting its analysis to that of a conventional ‘traffic stop’ focused on the driver”— that is, in analyzing the lawfulness of the officers’ interactions with defendant by considering whether they occurred during an unavoidable lull in processing Levi’s arrest.
We agree with defendant that our analysis must focus on the stop of defendant, not on the stop of Levi. “[W]e analyzed whether a passenger had been unlawfully seized during the course of a traffic stop as a question separate from the stop of the driver.” State v. Knapp,
On appeal, the state does not dispute that defendant was seizеd when Dodds pulled the vehicle over and told defendant and Levi that he was investigating a report of possible car prowls. Instead, the state challenges defendant’s contention that defendant remained seized during the entire encounter with the officers, arguing that, after the officers finished searching defendant’s car, their seizure of defendant ended and the further interaction between Weaver and defendant was “mere conversation.”
We disagree. Defendant was subjected to a consistent show of authority by the officers throughout the encounter, with no apparent break in his detention. Specifically, and unlike in cases involving defendants who were merely bystanders to stops directed at other occupants of a vehicle, defendant knew that he was the subject of the investigation into possible car prowls. The officers searched his black bag and his car in association with that investigation. The
Mоreover, the surrounding circumstances would not have indicated to defendant that the investigation into possible car prowls had concluded. Specifically, Weaver continually asked defendant probing questions throughout the encounter, never indicating that he had concluded the car-prowl investigation or that defendant was free to leave. In addition, Weaver stayed outside defendant’s door or by his side throughout the encounter, three officers and three patrol cars were at the scene at about 2:40 a.m., and the overhеad lights on Dodds’s patrol car remained activated. That persistent show of authority — continuing after what indisputably began as a criminal investigation — would lead a reasonable person, at whom the authority was directed, to believe that he was the subject of an ongoing criminal investigation and was not free to leave. Thus, defendant was subject to a seizure throughout the encounter.
The trial court held, as an alternative basis for denying defendant’s suppression motion, that the officers had reasonable suspicion that defendant possеssed controlled substances. We turn to that question, viz., whether the ongoing seizure of defendant was justified by reasonable suspicion of criminal activity, as Article I, section 9, requires. State v. Rodgers/Kirkeby,
“The reasonable suspicion standard has a subjective component — that is, the officer must subjectively suspect that a person has committed a crime — and an objective component — that is, the officer must identify specific and articulable facts from which he or she formed an objectively reasonable suspicion that a person has committed оr is about to commit a crime.”
State v. Kentopp,
Here, defendant does not dispute that the stop and detention were, at the outset, supported by reasonable suspicion that defendant was stealing or attempting to steal items from cars. Rather, he contends that, when the officers’ suspicion of that crime dissipated, they had not yet developed
Accordingly, we must answer three questions in determining whether reasonable suspicion supported the stop of defendant through the point at which officers took steps that led to discovery of the evidence that defendant seeks to suppress: (1) When, if ever, did Weaver’s reasonable suspicion that defendant was committing or attempting to commit car prowls dissipate? (2) What facts were known to Weaver at that point? (3) As а matter of law, did those facts give Weaver reasonable suspicion that defendant possessed methamphetamine? We consider each question in turn.
The resolution of the first issue, when reasonable suspicion of possible car prowls abated, is simple because the state acknowledges that Weaver’s reasonable suspicion dissipated after Bledsoe searched defendant’s vehicle. As the state puts it: “After the officers searched defendant’s car and found nothing related to car clouts, they ended the criminal investigation and defendant was free to leave.” We conclude that reasonable suspicion of possible car prowls abated when the search of defendant’s car was complete.
We turn to the second question, which requires us to determine what facts were available to Weaver when he
We previously have held that the presence of a butane torch, without more, does not give an officer reasonable suspicion of criminal activity. State v. Gomes,
Only one other pertinent fact contributes to the totality of the circumstances we evaluate when considering whether Weaver reasonably suspected that defendant possessed methamphetamine: Weaver’s suspicion that Levi was a methamphetamine user. But mere association with a drug user, without more, generally is not sufficient to establish reasonable suspicion. State v. Clink,
Thus, the totality of the circumstancеs known to Weaver at the pertinent time amount to the presence of one item consistent with — but not exclusively associated with— methamphetamine use (the butane torch) and evidence that defendant’s companion, his son, was a methamphetamine user. “Reasonable suspicion is a less demanding standard than probable cause,” State v. Hames,
Comparison with other cases makes the point. Consider, for example, State v. Holdorf,
Here, unlike in Holdorf and McHafi'fie, no evidence— such as association with drug dealing or current intoxication, nervousness, or indexing movements — sufficiently suggests current drug possession in a way that establishes reasonable suspicion of that crime. Consequently, considering the totality of the circumstances, we conclude that Weaver’s suspicion that defendant currently possessed methamphetamine was not objectively reasonable. It follows that Weaver unlawfully extended his seizure of defendant when he started investigating defendant’s possible involvement with drugs. Kentopp,
The remaining question is whether defendant’s voluntary consent to the search of his person — culminating in the discovery of methamphetamine and the other evidence that defendant sought to suppress — derived from that unlawful extension of thе seizure. Our determination that defendant was unlawfully stopped for purposes of Article I, section 9, means that the subsequently discovered evidence must be suppressed unless the state proves “that the consent was voluntary and was not the product of police exploitation of that illegality.” Musser,
Here, in arguing that defendant’s consent did not result from the illegal seizure, the state relies exclusively on the fact that defendant’s consent was voluntary. In Unger, however, the Supreme Court “rejected * * * the state’s view that voluntary consent generally curеs any taint that might have arisen from prior police misconduct[.]” Musser,
Reversed and remanded.
Notes
Both parties refer to defendant’s son as “Levi” in their briefs; we do the same in this opinion to avoid confusion with defendant, who has the same last name.
The trial court mistakenly found that Levi told Dodds that the report from the named caller referred to him (Levi). However, the record does not support
After we determined, in Knapp, that police officers had unlawfully detained the defendant passenger, we then analyzed, under State v. Hall,