State v. Soto , 252 Or. App. 50 ( 2012 )

ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for unlawful possession of a firearm, ORS 166.250, arguing that the trial court erred in denying his motion to suppress evidence obtained as a result of an unlawful seizure and the subsequent search of defendant’s pants pocket. We disagree with defendant’s premise that he was unlawfully seized, and, accordingly, we affirm.

We review a court’s denial of a motion to suppress for legal error and defer to the court’s findings of historical fact if there is evidence to support them. State v. Mitchele, 240 Or App 86, 88, 251 P3d 760 (2010). So far as the court did not make express findings, we resolve any factual disputes in a way that is consistent with the court’s ultimate conclusion. State v. Hall, 339 Or 7,10, 115 P3d 908 (2005).

Consistently with that standard, we take the following facts from the court’s ruling and the record of the suppression hearing. While on gang interdiction duty on an afternoon,¹ Portland Police Officer Taylor and his partner were patrolling an area in Northeastern Portland that is subject to gang activity. The officers noticed a group of three men, including defendant, passing in front of their marked patrol car as the officers were stopped at an intersection. Because Taylor recognized one of the men other than defendant from a previous encounter — during which the man had talked openly about being a member of a gang— and noticed that all of the men wore clothing that, to Taylor, suggested gang affiliation, he decided that he wanted to talk to them. Taylor turned the car and drove it in the direction that the men were heading, parked behind the group, and— without turning on the car’s lights, using its siren, or yelling at the men — got out of the car and started walking with his partner to catch up to the group.

As the officers were following the men, Taylor said, “Hi, guys,” and two of them stopped and began talking with Taylor’s partner; however, defendant continued walking. Taylor briskly followed behind defendant and said to him, “Hey there.” Defendant did not respond but, rather, continued walking until Taylor caught up to him and said, “We were hoping to talk [to] you guys. Is that okay?” At that point — about 30 feet away from where Taylor’s partner was talking with the other men — defendant stopped walking, turned toward Taylor, nodded his head, and said, “Yeah.” Taylor then asked, “Would it be okay if we walked back to where your friends are?” Defendant replied, “Okay.”

Defendant and Taylor began to backtrack, and, just before they reached the group — but after defendant had told Taylor his name — Taylor asked defendant, “Do you have any weapons on you?” Defendant nodded,² and, after Taylor asked him whether he was answering his question affirmatively, defendant said, “Yeah.” Taylor testified that, up to that point in the encounter, he had maintained a conversational tone with defendant and was being neither directive nor demanding. He also testified that his question about the weapon was merely him being “nosey” in the hopes that he would “get an opportunity to search and find a weapon.”

Taylor then instructed defendant to put his hands behind his head and asked him where the weapon was located. Defendant shook his right leg and looked down at it, and Taylor felt the outside of defendant’s right pants pocket. He immediately felt a handgun and pulled it out of the pocket. As a result of the encounter, the state charged defendant with one count of unlawful possession of a firearm.

Before defendant’s case was tried to the court, he moved to suppress, under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, the evidence obtained after Taylor’s search — viz., the gun and statements that defendant had made after discovery of the gun and his receipt of Miranda warnings. After a hearing at which Taylor testified, the court denied defendant’s motion, concluding that the encounter was “mere conversation all the way up to where [Taylor] asked him [if] he ha[d] a weapon” and, once defendant admitted that he did have a weapon, Taylor’s subsequent search of his pants pocket was justified by reasonable suspicion that defendant unlawfully possessed a firearm.

The determinative inquiry in this case is at what point during defendant’s encounter with Taylor was defendant seized under Article I, section 9.³ On the one hand, defendant contends that he was seized at various points during the encounter: when Taylor followed him; attempted to get his attention; asked him to walk 30 feet in the opposite direction; and asked him for his name and whether he was carrying a weapon. On the other hand, the state predictably responds that Taylor’s actions during the parts of the encounter on which defendant relies were insufficient to effect a seizure under the test articulated in State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010). As explained below, the state has the better of the argument.

A limitless variety of encounters may occur between citizens and police officers, but, for purposes of Article I, section 9, those encounters are shoehorned into one of two well-established, and oft-repeated, categories: (1) a mere conversation, an officer’s casual encounter that has no constitutional import and, hence, for which the officer need not have any justification, or (2) a seizure, an encounter characterized by an officer’s restraint of a person for investigative purposes and for which the officer needs some type of justification, depending on the type of seizure, so as not to offend Article I, section 9. Id. at 308-09.

To differentiate between mere conversation and a seizure, the Supreme Court has instructed courts to undertake the following fact-specific evaluation of the totality of the circumstances in a case:

“A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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.”

Id. at 316 (emphasis in original). Under that test, the touchstone for determining whether a seizure has occurred is whether an officer has restricted the defendant’s liberty or freedom of movement by a show of authority. State v. Rodgers/Kirkeby, 347 Or 610, 621-22, 227 P3d 695 (2010). Such a restriction may be accomplished through purely verbal means, as shown, for example, by the content of an officer’s questions to the defendant, Ashbaugh, 349 Or at 317; however, an officer does not seize a person merely by asking the person questions that most people would not ordinarily ask another person, State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991). In addition to the words used by an officer, the officer’s conduct during the encounter may manifest the necessary show of authority that gives rise to a seizure, especially if the officer physically restrains the defendant or acts in a threatening or coercive manner toward the defendant. Ashbaugh, 349 Or at 317; Rodgers /Kirkeby, 347 Or at 622. Moreover, if the defendant would know, in light of an officer’s actions, that he or she is the subject of a criminal investigation, then a reasonable person in the defendant’s position would believe that his or her freedom of movement had been significantly restricted. State v. Radtke, 242 Or App 234, 238-39, 241, 255 P3d 543 (2011).

Even though the fact-intensive nature of the seizure inquiry does not lend itself to generalization, the Supreme Court has articulated certain precepts that courts should keep in mind when evaluating whether an encounter, such as the one in this case, between officers and pedestrians— that is, not the more typical officer-motorist encounter — are seizures under Article I, section 9. In that regard, the court has explained that

“officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful. A street or public place encounter does not amount to an Article I, section 9[,] ‘seizure’ merely because the encounter may involve inconvenience or annoyance for the citizen and the other party to the encounter is known to be a law enforcement officer. Even physical contact does not transform the encounter into a ‘seizure’ if it is a normal means of attracting a person’s attention (e.g. [,] policeman tapping citizen on the shoulder at the outset to get a citizen’s attention). *** Rather, the encounter is a ‘seizure’ of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse. The pivotal factor is whether the officer * * * has * * * conducted himself [or herself] in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.”

Holmes, 311 Or at 410 (citation omitted; emphasis added). With that rubric in mind, we turn to the pertinent circumstances of defendant’s encounter with Taylor in search of the requisite show of authority.

We begin at the outset of the encounter, at which time Taylor parked his patrol car behind defendant and the other men in the group and got out of the vehicle. By parking where he did in relation to the group, Taylor avoided creating the impression that the officers were impeding the group’s ability to continue walking in the direction in which they were originally headed without interacting with the officers. See, e.g., Ashbaugh, 349 Or at 317 (explaining that, if the officers were to position themselves in a way that suggests that they have surrounded a defendant, that conduct could be a show of authority); State v. Wood, 188 Or App 89, 94, 69 P3d 1263 (2003) (concluding that the defendant was seized under Article I, section 9, in an officer-driver encounter when, among other circumstances, the uniformed officer “to whom [the] defendant had related his plan to leave the car [that the defendant was driving], stood so as to make that exit impossible and then asked [the] defendant a question”). Moreover, Taylor did not use the patrol car’s overhead lights or its siren to get the group’s attention, but rather, he chose a less intrusive and confrontational means, calling out to the men after the officers had gotten out of their car. Therefore, none of the initial circumstances of the encounter establishes any show of authority.

Next, without reacting to Taylor’s two attempts to get his attention in some manner that would show that he had heard Taylor’s calls — for example, by turning toward or looking back at Taylor — defendant continued to walk down the street with Taylor in tow. Taylor finally caught up to defendant, got his attention, and asked him only once if he would be willing to talk to the officers. On appeal, defendant contends that his lack of response and act of continuing to walk away from Taylor clearly demonstrated that he had no interest in talking with the officers and that Taylor’s persistent questioning despite defendant’s purportedly manifest lack of interest would lead a reasonable person in defendant’s position to conclude that he or she was not free to continue walking away without answering Taylor’s questions.

That contention falters for at least two reasons. First, defendant had not “clearly” demonstrated that he did not want to talk to Taylor by continuing to walk away. Taylor’s final question to defendant — “We were hoping to talk [to] you guys. Is that okay?” — was the first definite indication that Taylor wanted to talk with defendant— rather than get his attention for some other reason — and defendant stopped after Taylor asked the question and immediately agreed to talk — rather than continuing to walk away, which, in light of Taylor’s specific question, would have been a reaction consistent with the inference advanced by defendant that he did not want to talk with Taylor. Therefore, contrary to defendant’s argument, Taylor was not trying to overcome defendant’s clear exercise of his freedom of movement. Moreover, although Taylor’s persistence in trying to get defendant’s attention, which lasted the short time that it took to walk roughly 30 feet, may have inconvenienced or annoyed him, Taylor did not act beyond — much less substantially beyond, as Holmes requires — what a reasonable person in defendant’s position would expect in normal social intercourse. Accordingly, a reasonable person at that point in the encounter would not believe that his or her freedom of movement had been restricted by a show of authority.⁴

Next, at Taylor’s request, to which defendant readily agreed, defendant and Taylor changed directions and began to return to where the two other members of the group had stopped — about 30 feet away. On appeal, defendant seizes on that circumstance and, relying on State v. Johnson, 105 Or App 587, 805 P2d 747 (1991), contends that the change in direction initiated by Taylor was a show of authority. However, Johnson does not bear the weight that defendant has sought to place on it.

In Johnson, three uniformed police officers were investigating a report of a fight in an apartment building’s parking lot. The officers saw the defendant walking near the parking lot, and one of the officers, Tercek, asked the defendant if he would talk with him. The defendant stopped behind a bush and responded affirmatively. Tercek told the defendant about the nature of the investigation and asked the defendant whether he knew anything about any fighting in the parking lot. The defendant replied, “No.” Despite that response, Tercek told the defendant that he could not see him very well and eventually said, “I can’t see you back there, can you step out [from behind the bush]?” Id. at 589 (brackets in Johnson). In response, the defendant changed course and walked roughly 15 feet toward the officer.

The issue on appeal in Johnson was whether the defendant was seized at some point during the encounter with Tercek. We concluded that the encounter began as a mere conversation when Tercek approached the defendant and posed the noninvasive question about whether the defendant knew anything about a fight. Id. at 590-91. But the encounter transformed into a seizure after the defendant had responded that he did not know anything about what the officers were investigating, because Tercek persisted in requesting that the defendant alter his direction and walk 15 feet toward him so that Tercek could continue to question him. Id. Put differently, Tercek’s persistence in the face of the defendant’s denial of wrongdoing demonstrated that the defendant was the subject of a continuing investigation about the reported fight, and “a reasonable person in [the] defendant’s position would conclude that he [or she] was being summoned by the officers and was not free to continue walking back to the apartment.” Id. at 590; see also State v. Scatchard, 208 Or App 315, 320-21, 145 P3d 237, rev den, 342 Or 254 (2006) (“For instance, in Johnson, what started out as mere conversation was converted into a stop *** when police requested that the defendant alter his course of travel to facilitate continued questioning after an initial inquiry did not furnish reasonable suspicion.”).

Here, unlike in Johnson, the encounter between defendant and Taylor did not transform from a mere conversation to a seizure. Rather, at the point at which defendant and Taylor had changed direction at Taylor’s request, Taylor had merely asked defendant if he would be willing to talk, without explaining why Taylor wanted to do so. Therefore, without any indication about the subject of the conversation, a reasonable person in defendant’s position would not have thought that Taylor had restricted his or her freedom of movement by indicating that he or she was the subject of a criminal investigation.

Finally, Taylor asked defendant what his name was and whether he was carrying a weapon. As to the former question, unlike cases in which we have concluded that an officer’s request for identification would lead a reasonable person to think that he or she was the subject of a criminal investigation and thus not free to leave,⁵ Taylor did not write down defendant’s name, ask for some tangible form of identification, or otherwise indicate that he was going to run a warrants check on defendant. Rather, the purpose of Taylor’s question was merely to figure out to whom he was talking — something a reasonable person engaged in a conversation with a stranger would expect the stranger to ask — and not to initiate a criminal investigation of defendant. As to the question about the weapon, the content of the question, asked in a conversational tone and unaccompanied by some outward show of authority, plainly did not effectuate a seizure. See Ashbaugh, 349 Or at 317 (concluding that the officer’s question whether the defendant had anything illegal in her purse did not in itself cause her to be seized); State v. Jones, 241 Or App 597, 604, 250 P3d 452 (2011) (same).

In conclusion, none of the individual circumstances of defendant’s encounter with Taylor support defendant’s contention that Taylor restricted defendant’s freedom of movement by a show of authority. Further, we conclude that all of Taylor’s actions, considered as a whole, were tailored to be minimally intrusive and did not constitute a show of authority that would lead a reasonable person to believe that his or her freedom of movement had been restricted.⁶

Accordingly, defendant had not been seized until after Taylor had reasonable suspicion to believe that defendant unlawfully possessed a firearm, and, therefore, the court did not err in denying defendant’s motion to suppress.

Affirmed.

1 In the course of gang interdiction duty, police officers are responsible for taking certain actions, including talking to people affiliated with gangs, to establish a police presence in a neighborhood for the purpose of trying to prevent gang-related activity there.

2 According to Taylor, defendant was free to end the interaction and leave until he indicated that he had a weapon.

3 As explained below, 252 Or App at 59 n 6, the answer to that inquiry also resolves defendant’s federal constitutional argument.

4 There may very well be a point at which an officer’s persistent questioning of a pedestrian who is walking away from the officer could effectuate a seizure under Article I, section 9, but this is not that case.

5 E.g., Radtke, 242 Or App at 241 (“We conclude that a reasonable person in [the] defendant’s position would have believed that an investigation began when [the officer] took note of her name and date of birth; thus, *** she was under the impression that the police had begun an investigation of her and had not given her any reason to believe that it had ended. *** [T]hose facts add up to a seizure.” (Emphasis added.)); State v. Parker, 242 Or App 387, 394, 255 P3d 624 (2011) (concluding that reasonable person would believe that he or she was not free to leave when the officer “wrote down [the] defendant’s name and date of birth and *** then immediately returned to his vehicle and ran a [warrant] check”).

6 On appeal, defendant advances a cursory argument under the federal constitution in which he asserts, in essence, that the analytical framework for determining whether a seizure has occurred under the Fourth Amendment in this case is coextensive with the same framework under Article I, section 9. In light of that argument, we reject defendant’s federal constitutional argument for the same reasons that we reject his state constitutional argument.