Lead Opinion
Dеfendant appeals a judgment of conviction for possession of methamphetamine in violation of ORS 475.894. He raises a single assignment of error on appeal, arguing that the trial court erred when it denied his motion to suppress methamphetamine that a police officer found after he detained defendant to investigate suspected illegal drug activity. Defendant contends that the officer lacked reasonable suspicion of criminal activity and, therefore, acted unlawfully when he stopped defendant. We conclude that the officer had reasonable suspicion. Accordingly, we affirm.
We review the denial of a motion to suppress for legal error, and we are bound by the trial court’s implicit and explicit findings of historical fact as long as the record includes constitutionally sufficient evidence to support those findings. State v. Ehly,
Shortly before 12 p.m., “dispatch” told Newberg Police Officer McCowan that a person had called to report a suspected drug deal in a parking lot near George Fox University. The informant gave dispatch his name and telephone number and explained why he believed that a drug deal was in process. The informant said that he had seen a white van driven by a woman pull into the parking lot and a man on a bicycle ride up and get into the van. Once inside the van, the man reportedly reached into his pants, pulled something out that he and the woman looked at while it was in the man’s lap, and then the man and woman “were smoking something” in the van. The informant described the van and said that the man who had been on the bicycle was wearing a red sweatshirt and a black hat. Dispatch gave that information to McCowan, who drove to the parking lot in response.
McCowan arrived at the parking lot within a minute or two after receiving the report from dispatch. When he arrived, defendant was still in the van, but he then got out and began walking toward his bicycle; at the same time, the woman in the van drove away. McCowan observed that defendant was wearing a red sweatshirt and a black hat, as the informant had reported. McCowan parked his patrol car near defendant and questioned him about what had happened inside the van. Defendant refused McCowan’s request to search his person. Ultimately, McCowan learned that defendant was on probation and spoke with a municipal court judge, who ordered McCowan to sеarch defendant. Defendant still refused to consent to the search; he then was arrested by another officer who had arrived at the parking lot. At that point, defendant acknowledged that he had methamphetamine in his pocket.
Defendant was charged with possession of methamphetamine. At the suppression hearing, the state conceded that McCowan had detained defendant at some point prior to the arrest, but it argued that the stop was justified because McCowan reasonably suspected that defendant had been engaged in illegal drug activity.
The trial court denied defendant’s suppression motion, concluding that McCowan had reasonable suspicion that justified the stop.
On appeal, defendant argues that the trial court erred by denying his suppression motion because the state did not establish that McCowan had reasonable suspicion that defendant was engaged in criminal activity. Defendant acknowledges that McCowan properly could rely on the informant’s report because the informant had identified himself, the informant’s report was based on his personal observations of what happened in the parking lot, and McCowan’s own observations corroborated the informant’s report. See State v. Villegas-Varela,
In response, the state asserts that “an assessment of all of the circumstances—the informant’s report, the officer’s own observations, and the officer’s training and experience”—establishes that McCowan had reasonable suspicion of criminal activity. We agree with the state.
We begin by reviewing basic principles regarding when police officers may conduct investigatory stops.
“Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen’s liberty with the degree of justification required for the intrusion. At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed ‘stops/ which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purpоses, while less restrictive encounters are not.”
State v. Fair,
The result in this case turns on a proper understanding of the “reasonable suspicion” standard, that is, what it means for an officer to reasonably suspect that an individual has committed, or is about to commit, a crime. That standard is “less than the standard of probable cause to arrest.” State v. Holdorf,
That an officer may briefly detain a person to investigate reasonably suspected criminal activity does not mean, of course, that an officer may interfere with the person’s liberty based only on intuition or a hunch. Id.; see State v. Guggenmos,
“[I]f an officer is able to point to specific and articulable facts that a person has committed a crime or is about to commit a crime, the officer has a ‘reasonable suspicion’ and may stop the person to investigate.”
Holdorf,
In Holdorf, the court emphasized that an officer may not detain a person based solely on the officer’s intuition or experience. Id. at 829. Nor may an officer rely solely on observing that a person has engaged in a “not too remarkable action.” Valdez,
In cases like this one, where the facts known to the officer include information received from an informant who meets the standard for reliability under Villegas-Varela, another question sometimes arises: May the informant’s conclusion that unlawful activity is taking place contribute to the reasonable-suspicion analysis? In at least some circumstances, the answer is “yes.” For example, in State v. Mitchele,
True, in holding that the reasonable-suspicion analysis can take into account an informant’s conclusion that a person is engaged in unlawful activity, courts sometimes have observed that the informant’s belief was based on matters of common knowledge. For example, in State v. Lichty,
In neither Lichty nor Bybee, however, did the courts conclude that—absent evidence that the subject of the informant’s report was a matter of common knowledge—the police officers involved could not have relied on those reports as a contributing factor in the reasonable-suspicion analysis. In some circumstances, an informant’s unexplained conclusion that criminal activity is afoot will not, standing alone, give rise to objectively reasonable suspicion that a person has committed a crime. See, e.g., State v. Greer,
In this case, the facts known to McCowan, evaluated in light of his training and experience, gave him reasonable suspicion that defendant was engaged in unlawful conduct. McCowan had received a report from an identified informant that a bicyclist and a person driving a van met in a parking lot, the bicyclist entered the van, he then pulled something from his pocket, and he and the van’s driver then smoked something. The informant not only described those facts, but he explained the conclusion that he had drawn from his observations—that the two people were involved in a drug deal. In other words, the informant suggested that the “something” that the people were smoking was an illicit drug and that the people had met in the parking lot for that purpose. See State v. Clink,
In light of his training and experience regarding how drug deals happen, McCowan could reasonably rely on both the informant’s description of the events he had observed and the unsurprising conclusion that the informant reached from those observations in developing a suspicion that defendant was engaged in criminal activity. McCowan’s suspicion reasonably could be heightened when he personally observed that both parties promptly left the parking lot after interacting only briefly. That is, McCowan’s personal observations, his knowledge of the informant’s report to dispatch, and his personal training and experience combined to allow him to describe the “observable” and “articulable” facts that led him to suspect that defendant and the van’s driver had engaged in illegal drug activity. Thus, McCowan did not detain defendant based on a hunch or intuition; nor did he stop defendant based solely on actions that were “not too remarkable.” Valdez,
Affirmed.
Notes
The state adheres to that approach on appeal. It argues only that any stop was justified by reasonable suspicion; it does not dispute that a stop occurred.
Dissenting Opinion
dissenting.
The majority holds that Officer McCowan reasonably suspected that defendant had been engаged in illegal drug activity based on “McCowan’s personal observations, his knowledge of the informant’s report to dispatch, and his personal training and experience.”
In this case, the state was unable to show (1) that McCowan himself observed anything suspicious; (2) that the informant had observed or was competent to identify illegal drug activity; or (3) that McCowan’s training and experience would permit him to draw any reasonable inferences regarding illegal drug activity. In the absence of such proof, this is a case in which the officer effectively deferred to the intuition of a civilian informant. Our state constitution demands more than that to justify pоlice intrusion on a person’s liberty interest.
Around noon, McCowan was told by dispatch that a named informant reported what he believed to be a drug deal in the George Fox University parking lot. The informant reported that a woman drove a van into the parking lot and then a man on a bicycle rode up and got into the van. The man reportedly “pulled something out of * * * either his pocket or his pants,” they both looked into his lap, and then “they were smoking something.” Within a couple of minutes, McCowan arrived in the parking lot, defendant got out of the van, and the van drove off. Both defendant and the van matched the description given by the informant, but McCowan did not see any of the activities described by the informant in the report. As defendant walked toward his bicycle, McCowan parked his patrol car near defendant and began questioning him about what he was doing inside the van. During that questioning, the state concedes that defendant was stopped. When defendant eventually admitted to possessing methamphetamine, he was arrested and charged.
First, that stop was based on information provided by an informant, and the state failed to prove that McCowan observed anything suspicious that would be related to drug activity. In State v. Clink,
Here, McCowan never observed any of the activities described by the informant in the report or any other circumstances that would make his suspicion objectively reasonable. See State v. Hames,
Furthermore, McCowan’s observation that when he pulled into the parking lot defendant got out of the van and walked toward his bicycle carries minimal weight. McCowan testified that he was not sure whether defendant and the driver began to leave because of his arrival. Even if it is reasonable to infer that defendant sought to avoid McCowan, as we explained in State v. Espinoza-Barragan,
Moreover, McCowan never testified that the area of the arrest was known for drug activity, which would support an inference that what defendant was smoking or transferring was illegal. See State v. Rudnitskyy,
Second, the state failed to prove that the informant observed any illegal drug activity or was competent to identify illegal drug activity based on what the informant had observed. This case is distinguishable from State v. Lichty,
“There was evidence presented in this case that members of society have a general knowledge regarding the appearance of cocaine. Storie testified that she believed that the powdery substance in the bag that she saw was cocaine because of her knowledge as to the appearance of cocaine from £[w]atching the news, [and] watching t.v. programs. You see it every day on the news.’ When Storie, a named informant, told Derby that she saw ⅛ bag of coke,’ she was saying that she saw a transparent bag, small enough to be put in a wallet, that contained a white pоwdery substance. Having heard that statement, it was reasonable for Derby to add his own expertise concerning the way illegal drugs are carried and to infer that the white powdery substance could be cocaine.”
Lichty,
There are far more innocent explanations for two people meeting briefly around lunchtime in а university parking lot than innocent explanations for carrying around in one’s wallet a small transparent bag of white powder. Furthermore, unlike the informant in Lichty, the informant in this case did not base his factual conclusion that defendant
Third, and as just noted, the state failed to prove how McCowan’s pertinent training and experience permitted him to make a reasonable inference—based on his personal observations or his knowledge of the informant’s report to dispatch—that illegal drug activity had occurred. The state must prove the relevance of the officer’s training and experience “through admissible evidence of specific articulable facts that permit an officеr to make a reasonable inference based on the officer’s pertinent training and experience.” Holdorf,
At trial, the state asked McCowan about his training and experience with illegal drugs. McCowan testified that, during 16 weeks of basic police training, he spent “a significant amount of time” learning about the “habits of drug users and people that possess drugs, places they frequent, [and] things like that,” but could not recall how much of that time was spent learning about drug detection. After McCowan testified that he had investigated drug crimes in the one and one-half years that he had been on patrol, the state asked whеther McCowan himself was “familiar with the appearance of or the ways and manners in which methamphetamine is used” and “the method of transferring methamphetamine or delivering methamphetamine from one person to another.” McCowan replied, “[y]es, I am,” but did not elaborate any further. On cross-examination, defendant asked McCowan, “You said you have experience with [methamphetamine] so therefore you have knowledge of how drugs are transferred. Have you ever seen a drug transaction occur in front of you?” McCowan responded, “not one that I can recall in partiсular.”
Here, as noted above, no evidence was presented to show that drug deals are a matter of common knowledge, and the purpose of McCowan’s testimony was to establish that he was able to recognize more from the informant’s reported facts and his observations than a person would commonly recognize. Consequently, further explanation of the basis of McCowan’s belief that defendant was involved in illegal drug activity and further explanation of the pertinent training or experience that guided that belief were needed. At no point did the state offer testimony to draw a factual nexus between McCowan’s pertinent training or experience and specific articulable facts. See Holdorf,
As previously noted, “a police officer’s training and experience, as relevant to proving particular circumstances, is not presumed based solely upon a police officer’s employment status.” Holdorf,
The majority’s holding departs from the principles articulated by the Supreme Court in Holdorf and Lichty, which require more than an informant’s speculation and an officer’s general references to training and experience. In this case, police stopped defendant based on a report that defendant met someone in a parking lot and smoked something. In my view, those circumstances did not justify police intrusion on defendant’s liberty interest, and I respectfully dissent.