355 Or 799

Or.

2014

STATE OF OREGON, Respondent on Review, v. STEPHEN WAYNE ZISKA, Petitioner on Review.

CC C092432CR; CA A145162; SC S060946 (Control)

STATE OF OREGON, Respondent on Review, v. MARGARITO GARZA, Petitioner on Review.

CC C092075CR; CA A146764; SC S060995

August 7, 2014

355 Or 799 (2014) | 334 P3d 964

Argued and submitted September 17, 2013, decisions of Court of Appeals and judgments of circuit courts affirmed August 7, 2014

Defendants were found guilty of menacing, ORS 163.190 and unlawful use of a weapon, ORS 166.220(1)(a) as a result of two separate incidents in which defendant Ziska threatened another person with a crowbar, and defendant Garza threatened another person with a folding knife. Defendants appealed their convictions for violating ORS 166.220(1)(a), arguing that threatening to use a weapon did not constitute the crime of unlawful use of a weapon. The Court of Appeals affirmed their convictions in two separate decisions. Held: as used in ORS 166.220(1)(a), “use” refers both to employment of a weapon to inflict harm or injury and employment of a weapon to threaten immediate harm or injury. In these cases, the evidence is undisputed that each defendant displayed a dangerous or deadly weapon against another person in a manner that threatened the other person with imminent serious physical injury. It is further undisputed that using those weapons in that manner was unlawful, in that it amounted to menacing under ORS 163.190. The evidence therefore established that both defendants violated ORS 166.220(1)(a).

The decisions of the Court of Appeals and the judgments of the circuit courts are affirmed.

En Banc

On review of decisions of the Court of Appeals*

Ernest G. Lannet, Deputy Public Defender, argued the cause and filed the brief for petitioners on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Matthew J. Lysne, Assistant Attorney General, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna Joyce, Solicitor General.

LANDAU, J.

The decisions of the Court of Appeals and the judgments of the circuit courts are affirmed.

LANDAU, J.

A person commits the crime of unlawful use of a weapon if he or she “[a]ttempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon.” ORS 166.220(1)(a). The issue presented in these two consolidated cases is the meaning of the term “use” in that statute. Defendants contend that the statute applies only when a person carries or possesses a weapon with the intent to “use” the weapon by actually employing it to injure another. The state argues that the statute also applies when a person carries or possesses a weapon with intent to “use” it to threaten or menace another unlawfully, without necessarily intending to injure the other person. The trial courts agreed with the state, as did the Court of Appeals. For the reasons that follow, we affirm.

I. BACKGROUND

A. State v. Ziska

Defendant Ziska got into an argument with a housemate. In the course of that argument, Ziska retrieved a crowbar, raised it, and told his housemate, “I‘m going to level you.” The housemate thought that Ziska was going to hit him with the crowbar. Others in the room disarmed Ziska and called the police. When the police arrived, they asked Ziska if he had wanted his housemate to know that he “meant business,” and Ziska nodded his head and said, “yes.” Defendant was arrested and charged with unlawful use of a weapon, ORS 166.220(1)(a), and menacing, ORS 163.190.

At his trial to the court, Ziska conceded that he had intended to threaten his housemate with a crowbar and that, as a result, he was guilty of menacing. He insisted that he was not guilty of unlawful use of a weapon, though, because the state failed to prove that he had intended to injure his housemate with the crowbar. The trial court found that, although the state failed to prove that Ziska intended to physically injure his roommate, it nevertheless proved that he unlawfully used a weapon. The court explained that,

“as I look at the language of the statute, it does say ‘use,’ and ‘use’ can include holding it up in a menacing manner. And, just from a common sense point of view, it makes sense that a statute would prohibit that because menacing someone with a dangerous weapon does create a very risky situation[.]”

Ziska appealed. He argued to the Court of Appeals that the trial court erred as a matter of law in finding him guilty of unlawful use of a weapon. According to Ziska, the evidence showed that he intended only to threaten his housemate with the crowbar and that such a threat does not constitute unlawful “use” of the weapon under ORS 166.220(1)(a). The Court of Appeals affirmed, holding that, under ORS 166.220(1)(a), the term “describes both the actual use of physical force and the threat of immediate use of physical force.” State v. Ziska, 253 Or App 82, 88-89, 288 P3d 1012 (2012).

B. State v. Garza

Defendant Garza lived in a group home. The group home held an annual yard sale and, during one such sale, displayed on a table several knives for sale. Garza walked up to the table, intoxicated, and grabbed a folding knife from the table. One of Garza‘s housemates told him to put the knife back. Garza, who was about three feet away, “flashed the knife open” and held it out to his housemate in a threatening manner. Others at the scene called the police. Garza relinquished the knife and was arrested and charged with menacing and unlawful use of a weapon.

At his trial to the court, Garza moved for a judgment of acquittal, arguing that the state failed to prove that he intended to “use” the knife in violation of the statute. According to Garza, the term “use” under ORS 166.220(1)(a) means “to stab or to slash or something of that nature” and merely “threatening to use is not ‘use‘” within the meaning of that statute. The trial court denied Garza‘s motion, concluding:

“In this case, the defendant, in the light most favorable to the State, was using the knife and I think in actually two different ways. One, he was using the knife in a threatening manner in order to retain the knife. * * *.

“In using that knife in order to commit a robbery, he‘s using it unlawfully. * * *. Is that an unlawful use of a weapon? I think it is.

“In addition, he was using it in order to place another individual in fear of serious physical injury. Again, I believe that that, in and of itself, also is an unlawful use of a weapon because he‘s attempted to use that weapon in an unlawful manner and was carrying it with that intent.

“Instead, in this case, in the light most favorable to the State, he turned around, opened that knife or opened it and then turned around, pointed it. He didn‘t just hold it or display it. He actually pointed it toward the victim who was only a couple of feet away.”

The trial court then found Garza guilty of both menacing and unlawful use of a weapon. Garza appealed, and the Court of Appeals affirmed in a per curiam opinion, citing its opinion in Ziska. State v. Garza, 253 Or App 551, 291 P3d 774 (2012).

II. ANALYSIS

On review, both defendants reprise their arguments that using a weapon merely to threaten another person does not constitute “use” of a weapon within the meaning of ORS 166.220(1)(a). Defendants concede that the phrasing of the statute, at least on its face, is capable of meaning any unlawful use of a weapon, and not just use to physically injure. They nevertheless argue that, taking into account the historical context of the statute, it becomes clear that the legislature intended the statute to refer more narrowly to use of a weapon to injure another person. According to defendants, the disputed wording of ORS 166.220(1)(a) originated in 1917—a time during which, defendants contend, the legislature did not make mere threats unlawful.

For its part, the state argues that defendants’ interpretation of ORS 166.220(1)(a) is contradicted by the wording of the statute itself, which broadly proscribes possession of a dangerous or deadly weapon with the intent to use it for any unlawful purpose, not just for the purpose of inflicting injury. Using a weapon for the purpose of committing the crime of menacing another person is just such an unlawful use, the state contends. See ORS 163.190 (defining offense of menacing). As for the historical context of the statute, the state argues that defendants are simply incorrect in their reading of the relevant statutes of the early twentieth century. In the state‘s view, the historical context for the original enactment now codified at ORS 166.220(1)(a) confirms that it was intended to mean what it says: namely, that an unlawful “use” refers to any unlawful use, certainly one that involves using a dangerous weapon in a threatening manner.

Thus, the question before us is one of statutory construction, governed by the familiar principles set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), and State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Our task is to examine the text in context and relevant legislative history, as well as applicable maxims of construction if necessary, to determine the meaning of “use” that the legislature most likely intended when it enacted ORS 166.220. Gaines, 346 Or at 171-73.

We begin, as always, with the text of the statute. Under ORS 166.220(1)(a), a person commits the crime of unlawful use of a weapon if he or she “[a]ttempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015.” The definitions of “dangerous weapon” and “deadly weapon” are set out in ORS 161.015:

“(1) ‘Dangerous weapon’ means any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.

“(2) ‘Deadly weapon’ means any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury.”

ORS 166.220 does not define what it means to “use” such weapons “unlawfully against another.” In the absence of any evidence to the contrary, we assume that the legislature intended to give those words their “plain, natural, and ordinary meaning.” PGE, 317 Or at 611. To determine that ordinary meaning, we begin with definitions from dictionaries that were in use at the time a statute was enacted. Vannatta v. Keisling, 324 Or 514, 530, 931 P2d 770 (1997) (using a “dictionary relevant to that time” in interpreting constitutional provision).

What is now ORS 166.220(1)(a) was first enacted in 1917. Or Laws 1917, ch 377, § 7. According to a dictionary of that era, the transitive verb “use” means:

”1. To make use of; to convert to one‘s service; to avail one‘s self of; to employ; as, to use a plow, a chair, a book * * * 2. To practice, esp. customarily; to make a practice of; as, to use diligence in business; as, to use haste. 3. To behave toward; to act with regard to; to treat; as, to use a beast cruelly. * * * 4. To accustom; to habituate; to render familiar by practice; to inure;—employed chiefly in the passive participle; as men used to cold and hunger.”

Webster‘s New Int‘l Dictionary 2258 (1910) (emphasis in original). Another dictionary of that time likewise defines the term to include a variety of senses, including “[t]o employ or make use of,” “[t]o act or behave to,” “[t]o have, possess, occupy, or enjoy for a time,” “[t]o behave, to comport, to demean,” and “[t]o frequent; to visit often or habitually.” The Encyclopaedic Dictionary 5018 (1894); see also The Century Dictionary 6674 (1904) (defining the verb “use” as, among other things, “[t]o employ for the attainment of some purpose or end; avail one‘s self of“).

Obviously, the verb “use” can be “used” in a variety of senses. And resort to dictionaries does not reveal which sense the legislature had in mind when it adopted the 1917 statute. For that, we look to the terms of the statute and how the words in dispute are used in context. State v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011) (dictionaries state “what words can mean, depending on their context and the particular manner in which they are used“) (emphasis in original); see also State v. Fries, 344 Or 541, 546-48, 185 P3d 453 (2008) (context determines which of multiple definitions is the one the legislature intended).

In this case, ORS 166.220(1)(a) refers to “intent to use” a “dangerous or deadly weapon.” In that specific context, we can safely eliminate several of the different senses listed in the dictionary and conclude that, most likely, the legislature intended the first of the listed senses, that is, “to make use of” or “to employ.” Even that, however, does not eliminate a multiplicity of possible meanings. In the abstract, a weapon may be employed or made use of in a variety of different ways. A weapon such as a firearm, for example, may be “used” by offering it as payment in a transaction, by employing it as a device to prop open a window, by swinging it as a club, by pointing it at another person in a threatening manner, or by discharging it. Each of the foregoing is consistent with the bare dictionary definition of the verb “use” in the sense of putting to use or employing.

ORS 166.220(1)(a), however, also refers to intent to use a dangerous or deadly weapon “unlawfully against another.” That narrows the definitional possibilities somewhat. Offering a weapon as collateral in an illegal drug transaction may be using it in a sense, but it is not doing so “against another person.” But even that qualification does not eliminate the possibility that intent to “use” a dangerous or deadly weapon unlawfully against another could mean either pointing it at another in a threatening manner or actually discharging it or otherwise employing it to a harmful purpose. Given the ordinary meaning of the word “use,” the wording of the statute appears to apply to either type of use, or both. As we have noted, defendants concede that much.

We cast a wider net in our contextual analysis to determine whether there is any evidence that the legislature intended ORS 166.220(1)(a) to mean something other than what the ordinary meaning of its terms suggests. Analysis of the context of a statute may include prior versions of the statute, Weldon v. Bd. of Lic. Pro. Counselors and Therapists, 353 Or 85, 92-93, 293 P3d 1023 (2012), including any wording changes in a statute over time, Harris and Harris, 349 Or 393, 402, 244 P3d 801(2010).

As we have noted, what is now ORS 166.220(1)(a) was first enacted in 1917 as part of a broader package of legislation that was intended to regulate the manufacture, sale, possession, and use of certain dangerous or deadly weapons. The 1917 statute made it a felony to use, or carry with intent to use, certain weapons that the legislature regarded as dangerous or deadly:

“Any person who attempts to use, or who with intent to use the same unlawfully against another, carries or possesses a dagger, dirk, dangerous knife, razor, stiletto, or any loaded pistol, revolver or other firearm, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, bomb or bombshell, or any other dangerous or deadly weapon or instrument, is guilty of a felony.”¹

Or Laws 1917, ch 377, § 7. The statute then provided that the mere possession of those weapons while committing, attempting to commit, or threatening to commit certain offenses created a presumption that the defendant intended to use those weapons in violation of the law:

“The carrying or possession of any of the weapons specified in this section by any person while committing, or attempting or threatening to commit a felony, or a breach of the peace, or any act of violence against the person or property of another, shall be presumptive evidence of carrying or possessing such weapon with intent to use the same in violation of this section.”

Id.

Nothing in that original version of the statute suggests that the legislature intended a narrow meaning of the term “use.” Interpreting ORS 166.220(1)(a) to apply to an attempt or intent to “use” a weapon both in the sense of actually employing it to commit injury or employing it to threaten such harm does not conflict with any of its terms.

Defendants disagree, arguing that the word “use,” as it appears in the original 1917 version of the statute, must be taken to refer to only actual—as opposed to threatened—

use because the statute itself draws a distinction between the two. Defendants point to the fact that the second sentence of the 1917 statute, which set out the presumption of intent to use, referred to actually committing, attempting to commit, or threatening to commit a crime while carrying or possessing a weapon. According to defendants, the phrasing of that sentence reveals that “[t]he legislature conspicuously discerned [a difference] between doing something, attempting to do something, and threatening to do something.” Because the legislature did not do the same thing when referring to attempting or intending to “use” a weapon, defendants reason, we must understand that to “use” a weapon is something different from threatening to use it. In a similar vein, defendants argue that the nature of the weapons listed in the 1917 statute suggests a legislative concern for the risk of harm that results from actually using those weapons, as opposed to merely threatening to use them.

The problem with both arguments is that they neglect to distinguish between threatening to use a weapon and using a weapon as a threat. The two are not—or at least, not necessarily—the same. One may threaten to use a weapon without ever touching it, as when, for example, a person says to another, “If you do not give me your money, I will get my gun and shoot you.” That does not constitute a current “use” of a weapon, as it is a threat to use it sometime in the future. In contrast, one also may use a weapon as a threat, as when one person points a gun at another and says, “Give me your money.” In a sense, that is a threat to use the weapon in the future; there is an implicit warning that, if the money is not forthcoming, the gun will be fired. But—and this is key—it is also a current use of the weapon as a threat.

With that distinction in mind, it can readily be seen that there is less significance to the phrasing of the 1917 statute than defendant draws from it. The fact that the legislature did not prohibit threatening to use a weapon in the future says nothing about whether the legislature intended to prohibit the current use of a weapon to threaten another person.

Defendants insist that using a weapon solely as a threat was not a criminal act in 1917. Defendants, however, are incorrect. For example, at that time, Oregon law made it a crime to intimidate voters by “menace, threat, or violence, whether armed or unarmed.” Lord‘s Oregon Laws, Title XIX, ch V, § 2059 (1910). The phrasing of the statute unambiguously refers to using a weapon as a threat without actually injuring another person. Similarly, at the same time, Oregon law included the offenses of riot, extortion, and coercion, all of which turned on “mere” threats. Id., ch VI, § 2068 (defining crime of “riot” in part as “[a]ny threat to use force or violence, if accompanied by immediate power of execution“); id., ch II, § 1929 (prohibiting a person from “threaten[ing] any injury to the person or property of another * * * with intent thereby to extort any pecuniary advantage * * * or with intent thereby to do any act against his will“).

Moreover, to read the 1917 statute more narrowly, as defendants suggest, introduces an unnecessary and unlikely redundancy into the state‘s criminal statutes at the time. See State v. Kellar, 349 Or 626, 636, 247 P3d 1232 (2011) (“Defendant‘s interpretation results in a redundancy, something that we seek to avoid in interpreting statutes.“). Defendants argue that, in essence, the 1917 statute‘s prohibition was limited to actually attempting to assault or carrying with the intent to actually assault another person. Oregon law at the time, however, already prohibited physical assaults with dangerous or deadly weapons. See, e.g., Lord‘s Oregon Laws, Title XIX, ch II, § 1923 (1910) (prohibiting “assault with a dangerous weapon“); id., § 1918 (prohibiting assaulting another person with a “cowhide, whip, stick, or other like thing,” while also possessing a “pistol, dirk, or other deadly weapon, with intent to intimidate and prevent such other from resisting or defending himself“).

In short, nothing in the earliest version of what is now ORS 166.220(1)(a) suggests that the legislature intended the word “use” to have the narrow meaning that defendants argue. To the contrary, the historical context suggests a broader interpretation that includes “using” a weapon either to injure another or to threaten injury.

The statute remained substantially unchanged until 1985.² At that point, the legislature amended the statute in response to this court‘s decision in State v. Delgado, 298 Or 395, 403-04, 692 P2d 610 (1984), in which the court concluded that a statute prohibiting the mere possession of a switchblade knife violated the right to bear arms guaranteed by Article I, section 27, of the Oregon Constitution

The legislature amended the statute in a number of ways, two of which are relevant for our purposes. First, the legislature eliminated the presumption that possession of dangerous or deadly weapons while committing, attempting to commit, or threatening to commit certain offenses alone is evidence of intent to use such weapons unlawfully. Or Laws 1985, ch 543, § 1. Second, the legislature eliminated the list of specific weapons and prohibited instead the possession of any “dangerous or deadly weapon,” defined in existing law, ORS 161.015, as something that, “under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious injury.” Neither of those amendments suggests that the 1985 legislature intended to alter the intended meaning of the statutory term “use.”

Defendants take a different view. They argue that, in defining a “dangerous weapon” as something that, “under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious injury,” the legislature once again shows that it knows the difference between using a weapon and threatening to use a weapon. Relatedly, defendants observe that a number of the crimes in the criminal code that the legislature adopted in 1971 drew a similar distinction between using a weapon and threatening to use a weapon, and nothing in the 1985 legislation suggests an intention to depart from that distinction. Those arguments, however, reprise defendants’ erroneous conflation of threatening to use a weapon and using it as an unlawful threat.

We conclude that, as used in ORS 166.220(1)(a), “use” refers both to employment of a weapon to inflict harm or injury and employment of a weapon to threaten immediate harm or injury. In these cases, the evidence is undisputed that each defendant displayed a dangerous or deadly weapon against another person in a manner that threatened the other person with imminent serious physical injury. It is further undisputed that using those weapons in that manner was unlawful, in that it amounted to menacing under ORS 163.190. The evidence therefore established that both defendants violated ORS 166.220(1)(a) and that the trial courts did not err in finding defendant Ziska guilty of that charge or in denying defendant Garza‘s motion for a judgment of acquittal on that charge.

The decisions of the Court of Appeals and the judgments of the circuit courts are affirmed.

search and seizure provisions of the Oregon and federal constitutions. State v. Kennedy, 290 Or 493, 497, 624 P2d 99 (1981); see also State v. Toevs, 327 Or 525, 534, 964 P2d 1007 (1998) (so stating). In 1997, the legislature limited the authority of courts to exclude relevant evidence in a criminal action “on the grounds that it was obtained in violation of any statutory provision” unless exclusion is required by the Oregon or federal constitution, the rules of evidence governing privileges and hearsay, or the rights of the press. ORS 136.432. Accordingly, our review in this case is limited to whether Article I, section 9, of the Oregon Constitution requires exclusion of the evidence identified in defendant‘s motion to suppress.

In Valdez, this court considered an Article I, section 9, challenge after police officers stopped the defendant when the defendant and two other men placed a paper bag into the trunk of an automobile in a part of town that the officers considered “to be one with a high incidence of vice activity.” 277 Or at 623. The officers “had never seen any of the three men before and knew nothing of them,” but considered the suspects’ dress “like a typical pusher” and “not typical of persons found in the area.” Id. at 623-24. The court held that the instinct and experience of the officers did not provide a sufficient basis for “reasonable suspicion” under ORS 131.615(1), without articulable facts pointing to criminal activity that could be objectively evaluated. Id. at 628. The court contrasted those circumstances with the facts in Terry and Cloman, where the stops were based on a reasonable suspicion of criminal activity:

“It is apparent that in both Terry and Cloman the officers who stopped the defendants for questioning concerning criminal activity had a much greater fund of suspicious activity to justify objectively their suspicion of criminal activity than had the officers in the present case. Here there is insufficient evidence suggesting criminal activity which can be objectively evaluated. We do not have persons who ‘didn‘t look right’ repetitively taking turns conferring and looking surreptitiously into a store, nor do we have known copper wire thieves unloading copper wire into a private garage in the middle of the night. In this case we have persons who ‘didn‘t look right’ putting a paper bag into the trunk of an automobile—a not too remarkable action.

“We recognize that the statutory standard for the stopping and questioning of a person concerning his possible criminal activity was intended to be less than the standard for probable cause to arrest. We also recognize that experienced police develop what amounts to an intuitive sixth sense about matters of this kind. As the officer testified, ‘he *** looked real sharp *** like a typical pusher, to me.’ Such instinct and experience cannot, however, form the entire basis for ‘reasonable suspicion,’ because no practical control can be exercised over police by courts if, in the absence of any very remarkable activity, the officer‘s instinct and experience may be used as the sole reason to justify infringement upon the personal liberty sought to be protected by the statute.”

Valdez, 277 Or at 627-28. Thus, in Valdez, an objective review of the totality of the circumstances confronting the officers did not provide a basis for a reasonable suspicion that criminal activity was afoot.

We also reviewed the constitutionality of a stop in State v. Lichty, 313 Or 579, 835 P2d 904 (1992). In Lichty, a clerk in a convenience store found the defendant‘s wallet containing a plastic baggy of cocaine. The store owner told a police officer that “‘I just found this wallet in the store, *** a bag of coke fell out of it,‘” and that the defendant had claimed the wallet. Id. at 584. The court rejected the defendant‘s argument that, “because Storie [the store owner] was not an expert in drug identification and the officer knew that she was not such an expert, the officer could not reasonably rely on Storie‘s statement that she saw cocaine, at least without further inquiry.” Id. at 585. In concluding that the police officer had reasonable suspicion to stop the defendant, the court explained:

“People often speak in the shorthand of opinions or conclusions, not in the form of a recitation of pure fact. 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 [Officer] Derby that she saw ‘a bag of coke,’ she was

saying that she saw a transparent bag, small enough to be put in a wallet, that contained a white powdery 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. Defendant and his companion then drove up and claimed the right to possess the wallet. These facts gave Derby a reasonable suspicion that defendant‘s wallet contained cocaine and that defendant therefore was committing a crime.”

Id. (emphasis in original).

Finally, in State v. Ehly, 317 Or 66, 854 P2d 421 (1993), police officers who were called to a motel recognized the defendant, an unruly guest, as a convicted felon and ordered him to back away from a gym bag that he was reaching into. The state conceded, and the court agreed, that the defendant “was stopped and thus was ‘seized’ when Corporal Cleaves put her hand on her gun and ordered defendant to ‘back up,’ and he submitted to that show of police authority.” Id. at 79. The court explained its conclusion that the officers had reasonable suspicion to justify the stop:

“Applying the reasonable suspicion standard to the facts in this case, the specific and articulable facts that support the officers’ reasonable inference that defendant had committed a crime are the following: Immediately before Corporal Cleaves put her hand on her gun and ordered defendant to ‘back up,’ the officers were confronted by a person whom they knew had prior felony convictions, whom they knew to be a methamphetamine user, and who appeared at that time to be under the influence of methamphetamine. Corporal Cleaves knew that many people who use illegal narcotics possess guns. When she saw defendant reaching into the gym bag with both his hands concealed, she thought that he had a gun. The officer knew that defendant was a friend of Gene Gammond and that defendant and Gammond were ‘running together.’ They also had reason to believe that Gammond was armed with an automatic handgun, and they had seen him drive out of the motel parking lot only minutes earlier. The officers reasonably could have believed that the gym bag belonged to Gammond and that it contained Gammond‘s automatic handgun. The gym bag was large enough to have contained a weapon. When Officer Emerson asked defendant why he

did not just dump the gym bag‘s contents on the bed and look for the key, defendant did not respond. Moreover, after telling the officers that the gym bag was not his, defendant continued to rummage through the gym bag with both his hands concealed. Considering the totality of those circumstances, we conclude that Corporal Cleaves had an objectively reasonable suspicion that defendant had committed the crime of felon in possession of a firearm.”

Id. at 80-81 (footnote omitted).

In concluding that the officers reasonably suspected criminal activity, the court observed that “[w]hether the suspicion is reasonable often will depend on the inferences drawn from the particular circumstances confronting the officer, viewed in the light of the officer‘s experience.” Id. at 80 (citing Terry, 392 US at 21-22, 27-30). The court made its determination based on the “specific and articulable facts that support[ed] the officer‘s reasonable inference that defendant had committed a crime.” Id. The court concluded that the officers “held a belief that was objectively reasonable under the totality of the circumstances existing at that time and place, that defendant had committed a crime.”⁴ Id. at 79 (emphasis added).

To summarize: The people have a liberty interest to be free from unreasonable searches and seizures that is

protected by provisions of the Oregon and federal constitutions. The standard of “reasonable suspicion” justifying a police intrusion on that liberty interest when a person is stopped was intended to be less than the standard of probable cause to arrest. A stop is unlawful unless it meets an objective test of reasonableness based on observable facts. Officer intuition and experience alone are not sufficient to meet that objective test. However, if 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.

B. Salang‘s Reliance on Information from Other Officers

With the above understanding in mind, we turn to the specific questions before us on review. We begin with our first question: Could Salang, in stopping defendant, rely on the factual information provided to him by other police officers to establish reasonable suspicion?

As previously mentioned, Salang relied on information provided to him by Davis, who had observed defendant as a passenger in a blue SUV driven by Watts. Davis was familiar with Watts as a current suspect in an ongoing investigation of a local methamphetamine distribution ring. Davis also knew that Watts was wanted on an outstanding warrant for violating parole following a felony conviction. Davis put out a call to alert officers that Watts should be pulled over, and he provided the above background information to Salang, who responded to the call and pulled Watts over after he observed Watts commit a traffic infraction.

The trial court concluded that Salang had reasonable suspicion to stop defendant for a suspected drug crime.⁵ Thus, the trial court implicitly credited the information from Davis that Salang relied upon as part of the totality of the circumstances justifying the stop. The Court of Appeals, however, rejected that information from Davis and the other officers:

“[W]e conclude that Salang did not have reasonable suspicion that defendant was involved in criminal activity at the time he was stopped. The only fact cited by Salang that relates to defendant himself, as opposed to the SUV or Watts, is his nervous, fidgety demeanor. *** And as for Watts and the extent to which being in his proximity might indicate ongoing criminal activity by defendant, it is significant that the only criminal activity that Salang knew Watts was engaged in was being in violation of his parole. He apparently had heard second-hand information that Watts was suspected of methamphetamine distribution. The information about the parking-lot drug transaction was something that Salang heard from Davis who heard it from a third officer who was not even certain about what he had seen. The information about the SUV was similarly indirect and speculative.”

Holdorf, 250 Or App at 514-15 (emphasis in original).

Read strictly, the above analysis appears to reject any information pointing to criminal activity that did not “relate[] to defendant himself” or was not personally observed by Salang. Id. at 514. However, our case law does not require such a truncated approach to judicial review for “reasonable suspicion.” Rather, our case law requires an objective review of observable facts to determine whether a police stop is justified by “reasonable suspicion.” That judicial review looks to the totality of the circumstances confronting a police officer and not just those circumstances that directly relate to a suspect or are personally observed by the police officer stopping a suspect.

In considering the totality of the circumstances confronting them, police officers often reasonably rely on information provided to them by other officers to determine whether to stop a suspect. We have recognized that there are circumstances where a police officer may act based on the shared knowledge of the police when effectuating an arrest:

“The collective knowledge doctrine focuses on the shared knowledge of the police as a unit rather than merely on the knowledge of the officer who acts. The doctrine therefore permits a police officer to act if the officer reasonably relies on instructions from an officer who has probable cause.”

State v. Soldahl, 331 Or 420, 427, 15 P3d 564 (2000). That recognition “in no way undermines the probable cause requirement. The doctrine merely views law enforcement agencies as a unit.” Id. at 428. We hold that the collective knowledge doctrine also applies when a police officer reasonably relies on information from other officers in making a determination that a stop is justified based on articulable facts that criminal activity is afoot. See generally Lichty, 313 Or at 585 (totality of circumstances considered by police officers included reasonable reliance on information from informant).

To be sure, a court must ultimately determine whether a police officer has “point[ed] to specific and articulable facts that give rise to a reasonable inference that a person has committed [or is about to commit] a crime” to justify a stop. Ehly, 317 Or at 80. However, courts must consider the “totality of the circumstances” confronting an officer in making that determination. Id. at 79. Thus, the Court of Appeals erred to the extent that it did not consider the information that Salang had received from other officers as circumstances to weigh in its ultimate determination of whether there was reasonable suspicion for Salang to stop defendant. That information included the shared knowledge of Davis and other officers about Watts and the SUV. See Soldahl, 331 Or at 427.

C. Salang‘s Opinion That Defendant was Under the Influence of Methamphetamine

We now turn to our second question on review: Was Salang‘s observation that defendant appeared to be under the influence of methamphetamine, based on his training and experience, together with other information on which the officer properly relied, sufficient to establish a reasonable suspicion that defendant had or was about to commit a crime?

As mentioned, Salang testified that, in his opinion, defendant was under the influence of methamphetamine at the time of the stop. Salang stated that defendant was nervous and fidgety, avoided eye contact with him, and looked like he was “tweaking“:

“Q. And do you make any—you identify that he‘s male, any other things that you recognize or that you notice about the passenger?

“A. He was appearing very nervous when I first contacted him, making minimal eye contact with myself when I was talking to Mr. Watts at first, and then when I‘d talk to him. He was very fidgety.

“Q. Fidgety?

“A. Yeah.

“Q. When *** making eye contact, not making eye contact, describe that for us, what you mean by he‘s not making eye contact. Is it—is it out of the ordinary?

“A. It‘s out of the ordinary when you speak to a person for them not to look at you. He kept kind of looking down or straight when I was asking him for his name. Kind of would just look at me for a second and then look away. I also noticed that his hands were—he was kind of doing this (indicating) a little bit, which appeared—for me it appeared that he was nervous about something.

“Q. Did he appear to be under the influence of methamphetamine?

“A. Yes.

“Q. You used previously the term ‘tweaking‘?

“A. Mmm-hmm.

“Q. Did it appear he was tweaking?

“A. Yes.”

Salang also testified about his training and experience as a police officer and, in particular, about his experience with users of methamphetamine:

“Q. Can you give us a thumbnail sketch of your background, training and experience in law enforcement?

“A. I‘ve been with the Albany Police Department for almost five years. I am now a school resource officer. Prior to that I was a patrol officer for about four and a half years. Prior to being a patrol officer, I was a corrections deputy for Lincoln County for almost two years serving in the jail. Prior to that about ten years experience in juvenile corrections in different capacities as a juvenile probation officer, detention worker, and various types of work.

“Q. And in each of those jobs have you come in contact on a fairly regular basis with people who possess methamphetamine, may be under the influence of methamphetamine, and are you familiar with the patterns and practices of methamphetamine dealing and possession and use?

“A. Yes, both in my patrol duties and corrections when they come in in the booking.

“Q. And what kinds of behaviors do you see when you see someone who is under the influence of methamphetamine?

“A. Someone that might be fidgety, we have a term, tweaking, someone that might not have been sleeping for days because of the [sic] under the influence of the methamphetamines.

“Q. Is it a pretty distinct look?

“A. Yes.”

By concluding that Salang‘s stop of defendant was supported by reasonable suspicion, the trial court implicitly credited Salang‘s observations of defendant‘s distinct behavior and Salang‘s training and experience related to methamphetamine use by criminal suspects.⁶ Those were articulable facts that the court considered along with other specific and articulable facts relating to Watts, a current suspect in an ongoing investigation of a local methamphetamine distribution ring.

From its inception, the “reasonable suspicion” standard has included a proper regard for the experience that

police officers bring with them when they encounter criminal suspects. The “reasonable suspicion” standard applies to a police officer acting in his or her official capacity when stopping a person that the officer reasonably suspects “has committed or is about to commit a crime.” ORS 131.615(1); see also ORS 131.605 (peace officer defined as the meaning given in ORS 133.005). This court has quoted the following from the commentary to the final draft of the Proposed Oregon Criminal Procedure Code:

“‘***[W]hen an officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity is afoot and when he is able to point to specific and articulable facts which give rise to the inference that criminal activity is afoot, the officer has ‘reasonable suspicion’ and hence can stop the individual for investigation.‘”

Valdez, 277 Or at 626 (emphasis added).

Indeed, this court has expressly stated that “[w]hether [a police officer‘s] suspicion is reasonable often will depend on the inferences drawn from the particular circumstances confronting the officer, viewed in the light of the officer‘s experience.” Ehly, 317 Or at 80 (citing Terry, 392 US at 21-22); see also id. at 79 (totality of circumstances for officers included observation that suspect appeared to be under the influence of methamphetamine); Lichty, 313 Or at 585 (“Having heard that statement [from an informant], it was reasonable for [Officer] Derby to add his own expertise concerning the way illegal drugs are carried and to infer that the white powdery substance could be cocaine.” (Emphasis in original.)).

Further, this court has given weight, as appropriate in criminal cases, to officer‘s training and experience when we have reviewed probable cause determinations. See State v. Heckathorne, 347 Or 474, 485, 223 P3d 1034 (2009) (“[The] individual expertise and training [of a police officer] may provide the knowledge that turns various sensory clues into probable cause.“); State v. Goodman, 328 Or 318, 328, 975 P2d 458 (1999) (police officer‘s training and experience in drug investigations contributed to necessary factual nexus between a residence, the defendant, and a

remote marijuana grow location in establishing probable cause for search); State v. Herbert, 302 Or 237, 243, 729 P2d 547 (1986) (police officer, based upon his experience, had probable cause to believe that a paperfold contained contraband); State v. Westlund, 302 Or 225, 231-32, 729 P2d 541 (1986) (same with respect to police officer‘s belief that a vial contained a controlled substance). We conclude that a police officer‘s training and experience may, depending on the factual circumstances, also be given appropriate weight when a stop is reviewed under the less exacting standard of “reasonable suspicion.”

How much weight a reviewing court will give to a police officer‘s training and experience in assessing the officer‘s testimony in such a review will, of course, depend on the circumstances of each case. We emphasize that 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. Rather, that training and experience must be established, as it was here, through admissible evidence of specific articulable facts that permit an officer to make a reasonable inference based on the officer‘s pertinent training and experience.

III. CONCLUSION

Here, Salang testified that defendant was nervous and fidgety and avoided eye contact. Salang also testified that, in his substantial experience as a police officer, he had observed a distinctive behavior associated with methamphetamine use that is popularly referred to as “tweaking” and that, in his opinion, defendant was tweaking. Salang also testified that another police officer had told him that the driver of the blue SUV in which defendant was riding was a known felon with an outstanding warrant who was under investigation as a suspect in a local methamphetamine distribution ring.⁷ We conclude that the above facts, considered in their totality, gave rise to a reasonable inference that defendant committed the crime of possession of methamphetamine, ORS 475.894. Thus, Salang‘s stop of

defendant was justified by “reasonable suspicion.” See Ehly, 317 Or at 80.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

Notes

Some of the weapon terms in the 1917 statute are no longer in common use today. As defined in the 1910 edition of Webster‘s New International Dictionary, a “blackjack” is a “small leather-covered club or billy weighted at the head and having an elastic shaft.” Webster‘s New Int‘l Dictionary 232 (1910). A “slungshot” is defined as a “small mass of metal or stone fixed on a flexible handle, strap, or the like, used as a weapon.” Id. at 1978. A “billy” is a “bludgeon; a club; esp., a policeman‘s club.” Id. at 223. A “sandbag” is a “bag filled with sand for use as a weapon” and typically attached to the end of a staff. Id. at 1876-77. A “dirk” is defined as a “kind of dagger or poniard” or a “short sword.” Id. at 631. A “stiletto” is a “kind of dagger with a slender, pointed blade.” Id. at 2045.

Before 1985, the 1917 law was amended only in minor ways. For instance, the legislature amended ORS 166.220 in 1975 to add “nunchaku sticks” to the original list of prohibited weapons. Or Laws 1975, ch 700, § 1.

That standard mirrors the rationale of Terry:

“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. And simple good faith on the part of the arresting officer is not enough. *** If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers, and effects, only in the discretion of the police.”

392 US 21-22 (footnotes, internal citations, and internal quotation marks omitted; omission in original).

The trial court did not make detailed findings of fact on the issue of Salang‘s reasonable suspicion. However, as we explain, the findings made by the trial court were sufficient to support its conclusion that the stop was justified by reasonable suspicion.

In addition to testifying that defendant‘s behavior, particularly defendant‘s “tweaking,” was consistent, based on Salang‘s training and experience, with the behavior of methamphetamine users that he had previously observed, Salang gave his opinion that defendant was under the influence of methamphetamine at the time of the stop. That opinion was received by the trial court without objection. Therefore, Salang‘s competency as a witness to give that opinion was not raised as a contested issue in this case.

We agree with the Court of Appeals that Fandrem‘s explanation that he had observed an occupant of the same SUV engage in an apparent drug deal two weeks earlier is too speculative to be considered in this analysis.