Dеfendant appeals a judgment of conviction for unlawful possession of cocaine, ORS 475.884, and unlawful possession of methamphetamine, ORS 475.894. In his sole assignment of error, defendant challenges the trial court’s denial of his motion to suppress, contending that the evidence at issue was the product of an unreasonable seizure. The trial court denied defendant’s motion because it concluded that the police had reasonable suspicion to stop defendant for second-degree criminal trespass. Defendant argues that the police officers that apрroached defendant and his companions in the parking lot of a strip club did not have reasonable suspicion to stop him. The state responds that the officers did not stop defendant. On review for errors of law, see State v. Holdorf,
“In reviewing a denial of a motion to suppress, we аre bound by the trial court’s findings of historical fact that are supported by evidence in the record.” Id. To the extent that the trial court did not make findings of fact, and there are facts that could be decided in more than one way, we presume that the court made factual findings consistent with its ultimate conclusion. Id. However, where the trial court has not ruled on an issue, we do not presume that it resolved factual inconsistencies related to that issue. See Pereida-Alba v. Coursey,
At about 11:30 p.m., members of the Portland Police Bureau’s gang enforcement team (GET) were searching for a suspect in an area near two Portland strip clubs—Club 205 and Mystic. That area is known for substantial gang-related criminal activity, including shootings, and there had recently been a gang-related homicide in the parking lot of Mystic. Officers Billard and Asheim entered Club 205, across the street from Mystic, to search for the suspect, but did not find him there. While at the club, an employee asked Billard and Asheim to check the parking lot for “persons using it for illеgal activity or reasons other than club patronage.” The parking lot was marked with signs specifying that parking was for club customers only.
While Billard and Asheim were inside Club 205, Sergeant Duilio, the team’s supervising officer, drove his unmarked police car slowly through the club’s parking lot. Duilio saw three men standing near a car that was backed into a parking space, with a fence directly behind the space. Defendant was standing by the open driver’s side door of the car, and the two other men, Lawrence and Harwood, were standing behind the car. Duilio thought that the men were “kind of loitering,” because they appeared to be staying in one place without “walking towards or away from the [club], for several minutes.” Duilio decided that he would meet up with the other GET officers inside the club and, if the men were still there after he did that, he would go talk to them to make sure that they were patronizing the club and not loitering.
Duilio, Billard, and Asheim were then joined by three other members of the GET, and the six officers “approached the defendant!] from varying vantage points.” Most of the officers walked toward defendant, Lawrence, and Harwood “from the front, but at least one officer,” Murphy, “approached the men from the left side of the vehicle.” However, another officer, Polas, testified that he moved to the right to get a better look at defendant and his companions. Lawrence later testified that he felt “boxed in” and “surrounded” by the officers. All of the officers were in uniform, and they were directing their flashlights at the men as they walked toward them. The officers testified that they were using their flashlights to illuminate the area, but Lawrence testified that they were shining them in his and the other men’s eyes.
As the officers approached, defendant was standing by the driver’s side door, and Lawrence and Harwood were standing behind the trunk of the car, which was open. When defendant saw the officers, he walked around to the back of the car and joined the other two men behind the open trunk. The open trunk blocked the officers’ view below the men’s upper chests. However, Polas saw a gang tattoo on defendant’s neck that read “EBK.” Polas knew from his experience with the GET that that tattoo stood for “everybody killer” and that it signified defendant’s willingness to kill members of any rival gang.
Duilio called out to the men in a “loud enough voice” so that “everybody could hear,” identifying himself and his team as police officers and asking the men what was going on. The men did not respond to Duilio’s initial question, and hе repeated it several times in a “louder” voice to no avail. Defendant and his companions then started to rummage in the trunk of the car, appearing to pass something back and forth to one another, while looking from side to side. The officers were alarmed because they could not see what defendant and the other men were doing with their hands, but their movements were consistent with loading a weapon. They also found it suspicious that the men completely ignored Duilio’s questions, because, in their experience, very few people completely ignore a question from a police officer.
The officers then ordered defendant, Lawrence, and Harwood to come out from behind the car and show their hands. The men did not immediately comply, and the officers repeated the order several times. Defendant was the first to come forward, followed by Lawrence, but neither abided by the order to keep their hands visible. Defendant allowed his hands to disappear into the sleeves of his large coat several times as he walked forward, and Lawrence moved his hands in and out of his pockets. The officers were concerned that those movements might have been “indexing” behavior, unconsciously checking a weapon to make sure that it was still present and was not visible.
Asheim and Duilio asked for and received Lawrence’s consent to conduct a patdown search. During the search, Asheim discovered a loaded semiautomatic handgun in Lawrence’s right front pocket. Asheim called out that Lawrence had a gun, and Polas and another officer, Dale, who were conducting a patdown search of defendant, decided to put defendant in handcuffs to complete the search, conсerned that he might also be armed. During the search, Polas discovered a baggie containing methamphetamine and cocaine on the ground next to defendant’s feet. Polas believed that the drugs fell out of defendant’s clothing during the search.
Defendant was subsequently charged with one count of unlawful possession of cocaine and one count of unlawful possession of methamphetamine. Defendant moved to suppress the evidence discovered in the patdown search, arguing that he was unlawfully seized without reasonable suspicion when the six officers approaсhed him and the other men in
The trial court did not rule on whether defendant had been seized when the group of police officers first approached him in the parking lot but, instead, concluded that the officers had reasonable suspicion of second-degree criminal trespass at that time.
“-Lot was marked for customers only.
“-Police were asked by club employees to check lot for loiterers and other non-patrons.
“-Defendants were hanging around their vehicle, with the door and trunk open, for аpproximately ten minutes.
“-Defendants were not observed as walking towards or away from the business.
“-When contacted by police, defendants walked away from the business, towards the back of their vehicle.”
The court then concluded that the patdown search leading to the discovery of the evidence was justified by officer safety concerns.
Defendant then proceeded to a jury trial. The jury found him guilty of possession of cocaine and methamphetamine, and the trial court entered a judgment to that effect. This appeal followed.
On appeal, defendant reiterates his argument that he was seized without reasonable suspicion when the officers approached him and his companions and asked what they were doing. The state does not defend the trial court’s ruling on reasonable suspicion. Instead, the state responds that we should affirm the trial court’s ruling under the “right for the wrong reason” doctrine, because, according to the state, defendant was not stopped when the police officers first approached him.
We first address defendant’s contention that the trial court incorrectly concluded that the officers had reаsonable suspicion to stop him for criminal trespass. We assume, like the trial court, that defendant was stopped when the officers approached defendant and his companions as they stood near their car in the parking lot of Club 205. Article I, section 9, of the Oregon Constitution prohibits “unreasonable searches and seizures.”
“Reasonable suspicion of criminal activity exists if [a police] officer subjectively suspects that an individual has committed, or is about to commit, a crime, and that belief is ‘objectively reasonable under the totality of
Defendant does not dispute that the officers subjectively believed that he and his companions were guilty of second-degree criminal trespass when the officers approached them in the Club 205 parking lot. Accordingly, the issue is whether, on the basis of specific and articulable facts known to the officers at the time of the stop, it was objectively reasonable to suspect that defendant and his companions were trespassing.
ORS 164.245(1) provides that a “person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully * * * upon premises.” ORS 164.205, in turn, provides the following relevant definitions:
“(3) ‘Enter or remain unlawfully’ means:
“(a) To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so;
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“(4) ‘Open to the public’ means premises which by their physicаl nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required.”
Here, there is no doubt that the Club 205 parking lot was open to the public at the time that defendant was discovered there by the GET officers. Defendant was in the lot during Club 205⅛ ordinary business hours, when a reasonable person would believe that they did not need permission to enter and remain in the lot for the purpose of patronizing the club. Instead, at issue is whether the officers reasonаbly believed that defendant was not “licensed or permitted” to be in the lot. Because the club restricted use of the lot to customers, whether the police reasonably believed that defendant was not licensed or permitted to be there depends on whether it was objectively reasonable for them to believe that he was not a customer of the club.
As found by the trial court, the specific and articu-lable facts known to the officers at the time they encountered defendant were as follows: (1) the Club 205 parking lot was clearly marked with “for customers only” signs; (2) the GET officers wеre asked by a club employee to check the parking lot for people committing illegal acts and nonpatrons; (3) defendant and his companions were hanging around their vehicle, with the door and trunk open, for at least 10 minutes; (4) the officers did not see defendant and his companions walk toward or away from the club; (5) when defendant saw the officers approaching him and his companions, defendant walked toward the back of the car, away from the club. Those facts do not provide reasonable suspicion.
First, the signs stating that the parking lot was intended “for customеrs only” do not add anything to the reasonable suspicion calculus. Those signs help to define what constitutes trespassing at the Club 205 parking lot— i.e., entering or remaining in the lot for purposes other than patronizing the club. But, defining who is and is not a trespasser—noncustomers and customers—does not tell us anything
Next, the club employee’s request that Asheim and Billard check the parking lot for people loitering or engaging in criminal activity adds little to our analysis. Importantly, the employee’s request did not refer to defendant and his companions, and there is no evidence that employee was aware of their presence in the lot. Cf. State v. Walker,
That fact is of limited value. Although not irrelevant, the fact that a person is in an area assоciated with a high level of criminal activity “is insufficient to support an objectively reasonable belief that that person is himself or herself engaged” in criminal activity. State v. Bertsch, 251 Or App 128, 134,
As discussed above, the officers approached defendant and his companions primarily because they had been in the parking lot for 10 minutes, with the doors and trunk of the car open, and without entering Club 205 or leaving the lot. Defendant’s behavior was consistent with that of a trespasser. However, it was also innocuous on its facе; Club 205 does not restrict the amount of time that its customers may spend in its parking lot, and defendant’s behavior was consistent with a customer lingering in the parking lot before entering or after leaving the club.
Although “[t]he fact that there might be innocent explanations for conduct does not mean that the conduct cannot also give rise to reasonable suspicion of criminality, * * * an officer may not stop a person simply because the person’s conduct is consistent with criminal conduct; the nature of the conduct matters.” Martin,
Here, the officers who testified at the hearing did not offer an adequate explanation as to why they suspected that defendant was a trespasser rather than a customer to demonstrate that there was reasonable suspicion for a stop. They did not draw on their specialized training and experience to explain why they believed that defendant was acting like a trespasser rather than a patron of the club. See Alvarado,
As previously noted, the state argues that we should nevertheless affirm the trial court’s ruling on the alternative basis that defendant was not stopped when the officers approached him and his companions in the parking lot and Duilio asked them what they were doing. We may affirm a trial court on alternative grounds if certain conditions are met. See Outdoor Media Dimensions Inc. v. State of Oregon,
We begin by briefly reviewing the law related to determining whether the police have stopped a person. Although police-citizen encounters are of “infinite variety,” the determination of whether an encounter “implicate [s] the prohibition in Article I, section 9, against unrеasonable seizures” depends on which of three defined categories of encounters is implicated. Backstrand,
“ ‘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 purposes, whilе less restrictive encounters are not.’”
Id. at 399 (quoting State v. Fair,
The first unresolved factual issue relates to Duilio’s tone of voice when he asked defendant and his companions what they were doing. Among the considerations relevant to determining whether officers have engaged in a show of authority is the “content or manner” of any questions that the officer asked the defendant. Backstrand,
Additionally, there is an unresolved factual issue about how thе police officers used their flashlights. If an officer uses a flashlight to block a person’s view, and thereby hinders his or her ability to leave an encounter, it could contribute to a conclusion that the officer engaged in a show of authority because a reasonable person might feel that he or she is not free to terminate the encounter. See State v. Aronson,
Finally, there is an inconsistency in the record about the way that the officers were positioned as they approached defеndant and his companions. That inconsistency is significant because, if the officers positioned themselves “in a way that would [have] suggest [ed] to defendant that [he] was surrounded,” then the encounter was more likely a stop. Ashbaugh,
In reviewing a trial court’s ruling on a motion to suppress, we generally view the facts in the light most favorable to the trial court’s ruling, presuming that the court implicitly resolved any factual disputes consistent with that ruling. Where, as here, the trial court has not made a ruling on a dispositive issue, we cannot apply that presumption, because there is no reason to assume that the court resolved factual issues to reach any particular conclusion on that issue. See Pereida-Alba,
In sum, we conclude that the trial court erred in denying defendant’s motion to suppress on the ground that the officers had reasonable suspicion to stop defendant for criminal trеspassing. We remand to the trial court to determine whether defendant was stopped when he was initially approached by the police, and to determine the other issues raised by the parties on the motion to suppress.
Reversed and remanded.
Notes
Defendant contends that the trial court implicitly concluded that defendant was stopped when it ruled that the police had reasonable suspicion to stop him for trespassing. However, the trial court’s written conclusions of law omit any discussion of whether a stop occurred. And, in context, that omission is telling because, during oral argument at the supprеssion hearing, the parties and the court devoted substantial attention to whether a stop had occurred. Therefore, we read the trial court’s decision to assume, without deciding, that defendant was stopped.
Article I, section 9, provides, in part 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.”
During oral argument on the motion to suppress, the trial court appeared to accept that Duilio used a “calm” or “mild” tone in asking his question. However, when the court issued its written findings of fact, it did not make a finding on Duilio’s tone of voice.