State v. Smith , 308 Or. App. 84 ( 2020 )

84
Argued and submitted May 29, 2019; conviction on Count 3 reversed, remanded
for resentencing, otherwise affirmed December 16, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JASON ALLEN SMITH,
Defendant-Appellant.
Clatsop County Circuit Court
16CR27682; A164510
479 P3d 553
In this criminal appeal, defendant challenges the denial of his motion for
judgment of acquittal on a charge of interfering with a peace officer (IPO), ORS
162.247(1)(b). The IPO charge stemmed from defendant’s refusal to remain at the
scene when a detective ordered him to do so. Defendant argues that the detec-
tive’s order was not a “lawful order” because it was not justified by an objectively
reasonable suspicion that defendant was committing or about to commit a crime,
and, therefore, the stop was unconstitutional. The state argues that the detective
had reasonable suspicion that defendant committed or was about to commit both
unlawful use of vehicle (UUV) and theft and, alternatively, if the stop was not
justified by reasonable suspicion, the detective constitutionally detained defen-
dant as a material witness to a crime. Held: The trial court erred in denying the
motion for a judgment of acquittal. The detective’s suspicion of defendant having
committed UUV or theft was not objectively reasonable. Further, the stop was
not justified as a material witness detention.
Conviction on Count 3 reversed; remanded for resentencing; otherwise
affirmed.
Cindee S. Matyas, Judge.
John P. Evans, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
Cite as 308 Or App 84 (2020) 85
POWERS, J.
Conviction on Count 3 reversed; remanded for resentenc-
ing; otherwise affirmed.
86 State v. Smith
POWERS, J.
In this criminal case, defendant appeals from a
judgment of conviction for one count of interfering with
a peace officer (IPO), ORS 162.247(1)(b), and one count of
resisting arrest, ORS 162.315. Defendant makes a plain-
error argument with respect to the resisting arrest charge,
and we reject that argument without discussion. Defendant
also assigns error to the trial court’s denial of his motion
for a judgment of acquittal on the IPO charge. Specifically,
he argues that the arresting officer did not have reasonable
suspicion to order defendant to remain at the scene, and,
therefore, the officer’s detention of defendant amounted to
an unconstitutional stop. The state argues that the officer’s
order was justified by reasonable suspicion and, alternatively,
if the officer did not have reasonable suspicion, the officer
was nonetheless justified to stop defendant as a “material
witness” to a crime. We reverse defendant’s IPO conviction.
In reviewing a trial court’s denial of a motion for a
judgment of acquittal, we examine the evidence in the light
most favorable to the state to determine whether a rational
trier of fact, accepting all reasonable inferences and rea-
sonable credibility choices, could have found the essential
elements of the crime beyond a reasonable doubt. State v.
Colpo, 305 Or App 690, 691, 472 P3d 277 (2020). We set out
the facts in accordance with that standard.
I. FACTS AND PROCEDURAL HISTORY
Defendant drove to the Seaside Police Department
lobby and immediately handed the receptionist, Burk, a cell
phone. Defendant was “agitated,” spoke very quickly and
loudly, and his face was red. He told Burk, “Here’s the phone.
I can’t deal with them anymore. I can’t go back there.” He
also told Burk that it was his mother’s phone and his mother
had been using it to “ruin [his] life.”
Burk told defendant that his mother had called 9-1-1
while defendant was on his way to the station and that offi-
cers were being dispatched to his mother’s residence. Burk
asked defendant whether he had permission to use the truck
that he had driven to the station, and defendant responded,
“Yes. I do.”
Cite as 308 Or App 84 (2020) 87
Detective Sergeant Knight, who was also in the
lobby assisting another individual in an unrelated matter,
overheard defendant’s conversation with Burk. As defen-
dant turned to leave, Knight turned his attention to defen-
dant, introduced himself, and said, “Hey, why don’t we hang
out here. Let’s find out what’s going on at your house, so we
can figure out—because officers are there.” Defendant told
Knight “no,” and turned to leave. Knight repeated: “Hey,
why don’t we just hangout. Let’s figure out what’s going on
at your house, stay here[.]” Again, defendant told Knight no.
Finally, Knight told defendant: “Look, * * * you’re not free
to go. You are being detained so we can investigate what’s
going on at your house.” Once again, defendant said “no,”
and attempted to leave. Knight testified that he “grabbed
[defendant’s] arm to try to get ahold of it, and that’s when
[defendant] ripped it from me and started pushing past me.”
Knight and defendant struggled until Knight was able to
handcuff defendant with the assistance of other officers.
Defendant was taken into custody and transported to the
hospital where X-rays revealed that defendant’s leg was bro-
ken in three places. Ultimately, defendant was charged with
IPO and resisting arrest.1
At trial, Knight testified that he had reasonable
suspicion that defendant may have committed theft or unau-
thorized use of a motor vehicle:
“Well, based off the information—the only information
that I had, that there was a 9-1-1 call, that he admitted tak-
ing his mother’s cell phone, possibly the crime of theft. 9-1-1
calls are an emergency situation, so it could have been a
domestic disturbance. * * * And then he’s being asked about
the truck. I did not know what information the dispatcher
had. However, she’s asking if he has permission to have the
truck, so in my eyes—or in my mind, I’m thinking maybe
something to do with the call was about that.
So I—possibly he was about to commit unauthorized
use of a motor vehicle * * *.”
Knight acknowledged that, at the time he detained defen-
dant, he did not know whether defendant had permission
1
Defendant was also charged with attempted assault of a public safety offi-
cer, ORS 163.208, but was acquitted of that charge.
88 State v. Smith
to use the truck and did not know why defendant’s mother
called 9-1-1.
At the close of the state’s case, defendant moved for
a judgment of acquittal, arguing with respect to the IPO
charge that Knight did not have probable cause or reason-
able suspicion to stop defendant. The trial court denied
defendant’s motion:
“There are plenty of facts in dispute. And everything—
at least at this point—leading up to the encounter suggests
an alarming event has occurred. A highly agitated [defen-
dant], a lot of loud voices, a talk of 9-1-1 from a family mem-
ber. Questions about a phone. A lot of nonsensical commu-
nication. Questions about a truck.
“And I think, considering those facts in the light most
favorable to the State here, I think there’s plenty for the
jury to consider. They may disagree with its interpretation,
but at least at this point, I think it survives a motion for
judgment of acquittal on each count.”
Subsequently, the jury found defendant guilty of IPO and
resisting arrest and defendant filed this appeal.
II. DISCUSSION
On appeal, there is no dispute that Knight stopped
defendant as he was trying to leave the police station;
rather, the dispute hinges on whether the stop was justified
by reasonable suspicion. The parties agree that, for Knight’s
order to be a “lawful order” under the IPO statute and in
the context of this case, it must have been justified by rea-
sonable suspicion to detain defendant. The parties diverge,
however, on whether Knight reasonably suspected defen-
dant of committing (or having recently committed) a crime.
In a footnote, the state also argues that, under the princi-
ple described in Outdoor Media Dimensions Inc. v. State of
Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001), this court
should affirm on the alternative basis that Knight did not
need reasonable suspicion to stop defendant because defen-
dant was a material witness to a crime. For the reasons
explained below, we conclude that Knight lacked reasonable
suspicion to stop defendant, and we further reject the state’s
alternative basis for affirmance.
Cite as 308 Or App 84 (2020) 89
A. State v. Kreis and Lawful Orders
The Supreme Court recently has discussed what
constitutes a “lawful order” for purposes of interfering with
a police officer as described in ORS 162.247(1)(b).2 In State
v. Kreis, 365 Or 659, 667-69, 451 P3d 954 (2019), which was
decided after briefing and argument of this case, the court
held that an order is not a “lawful order” if it is not supported
by reasonable suspicion and thus violates an individual’s
rights under Article I, section 9, of the Oregon Constitution.3
In Kreis, officers spotted the defendant in the park-
ing lot of a restaurant—which had recently been the site of
multiple thefts—after midnight, standing near one of the
few cars in the parking lot. Officers suspected that the defen-
dant was trying to break into one of the cars or attempt-
ing to drive under the influence of intoxicants (DUII). One
of the officers ran the vehicle’s license plate number, and,
although the defendant matched the description of the
owner of that vehicle, the officer remained suspicious. One
officer approached the defendant to initiate a conversation,
but the defendant did not respond, turned away, and started
to walk away from the parking lot. Id.Both officers caught up with the defendant and
informed him that he was not free to leave until he told
them “his name, whether the car that he had been standing
near was his, and whether he was a restaurant employee.”
Id. at 661. Defendant refused and was arrested for IPO.
Id. at 662.
At trial, the defendant moved for a judgment of
acquittal on the IPO charge and argued that the arresting
2
ORS 162.247 provides, in part:
“(1) A person commits the crime of interfering with a peace officer or
parole and probation officer if the person, knowing that another person is a
peace officer or a parole and probation officer * * *:
“* * * * *
“(b) Refuses to obey a lawful order by the peace officer or parole and pro-
bation officer.”
3
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[.]”
90 State v. Smith
officer did not have reasonable suspicion to issue a “lawful
order” for the defendant to turn around to be handcuffed.
The state argued the opposite: that the arresting offi-
cer had reasonable suspicion, and that, alternatively, “his
order that defendant turn and be handcuffed was justi-
fied by reasonable officer-safety concerns.” The trial court
denied the motion, and the defendant appealed. Id. at
663. We affirmed the trial court on the basis that “orders
issued to protect officer safety were lawful orders.” Id. at
664.
On appeal to the Supreme Court, the defendant
renewed his argument that the officer’s order was not a “law-
ful order.” The parties disputed whether the order was sup-
ported by reasonable suspicion. Id. at 664-65. Ultimately,
the court concluded that the order was not supported by rea-
sonable suspicion of DUII or attempted DUII. Id. at 667.
The remaining question was whether the order
was lawful. The court noted that a lawful order is one
that is “authorized by, and is not contrary to, substantive
law.” And, to aid in that determination, “a court must con-
sider the authority granted, and the restrictions imposed,
by the substantive law[.]” The court also noted that con-
stitutional provisions are included in the ambit of “sub-
stantive law.” Id. at 669 (discussing State v. Illig-Renn,
341 Or 228, 238, 142 P3d 62 (2006), which held that the
IPO statute does not encompass “any refusal to follow an
order that is inconsistent with the substantive law, includ-
ing constitutional provisions” (internal quotation marks
omitted)).
Ultimately, the court held that “[a]n order that
restrains an individual’s liberty in violation of Article I,
section 9, is not a ‘lawful order[.]’ ” Id. at 677. Furthermore,
because the arresting officer “did not have reasonable suspi-
cion that defendant had committed or was about to commit
DUII or attempted DUII, his seizure of defendant violated
Article I, section 9.” Therefore, the officer’s “subsequent order
that defendant turn and be handcuffed also was not consti-
tutionally justified and was therefore inconsistent with that
constitutional provision.” Id. at 678.
Cite as 308 Or App 84 (2020) 91
Thus, if Knight did not have reasonable suspicion
that defendant had committed or was about to commit a
crime, then his order for defendant to remain at the scene
was not a “lawful order,” and, consequently, Knight’s stop of
defendant would be unconstitutional.
B. Reasonable Suspicion
In State v. Maciel-Figueroa, 361 Or 163, 182, 389
P3d 1121 (2017), the Supreme Court articulated that rea-
sonable suspicion is necessary for an investigative stop. The
court explained:
“For police officers to make a stop, they must reason-
ably suspect—based on specific and articulable facts—that
the person committed a specific crime or type of crime or
was about to commit a specific crime or type of crime. For
a court to determine that an investigative stop was law-
ful under Article I, section 9, the court (1) must find that
the officers actually suspected that the stopped person had
committed a specific crime or type of crime, or was about
to commit a specific crime or type of crime, and (2) must
conclude, based on the record, that the officers’ subjective
belief—their suspicion—was objectively reasonable under
the totality of the circumstances existing at the time of the
stop.”
Id. The court also noted that
“the state need not prove that the articulated facts give rise
to a conclusion with certainty that a crime has occurred or
is about to occur; instead, based on the specific facts known
and articulated by the officer, a reviewing court must con-
clude that the officer’s subjective belief could be true, as a
matter of logic.”
Id. at 184 (emphasis omitted). “The state has the burden of
establishing that an officer had both subjective and objec-
tive reasonable suspicion.” State v. Westcott, 282 Or App
614, 618, 385 P3d 1286 (2016), rev den, 361 Or 486 (2017)
(internal quotation marks and citation omitted). Further, as
the court described in Kreis, “[a]n officer’s suspicion must be
particularized to the individual based on the individual’s
own conduct,” and that reasonable suspicion “requires less
than probable cause but more than mere speculation.” 365
Or at 665.
92 State v. Smith
As noted above, Knight testified that he had rea-
sonable suspicion that defendant committed two crimes:
UUV and theft. We take each suspected crime in turn.
1. Unlawful use of a vehicle
With respect to UUV, the state asserts that Knight
had reasonable suspicion that defendant did not have per-
mission to use his mother’s vehicle, based on the 9-1-1 call,
the fact that the police were on their way to her residence
in response to that call, defendant’s agitation, and the dis-
patcher’s question whether defendant had permission to use
the truck. As explained below, we conclude that those cir-
cumstances were not sufficient to justify Knight’s seizure of
defendant because they do not support reasonable suspicion
of UUV.
Under ORS 164.135, for use of a vehicle to be unlaw-
ful, the use must be without (or beyond the scope of) the
owner’s consent.4 See State v. Gibson, 268 Or App 428, 430,
324 P3d 168 (2015) (noting that the person using the vehicle
“must know that he or she does not have the owner’s con-
sent” to do so).
Here, Knight did not offer any specific and artic-
ulable facts particularized to defendant’s conduct that he
used his mother’s vehicle without her consent. All Knight
knew at the time that he detained defendant was that
(1) the police had been called to defendant’s mother’s house
for an unknown reason because of her 9-1-1 call; (2) Burk
had asked defendant if he had permission to use the vehicle;
and (3) defendant had given an affirmative reply to Burk’s
question. Knight testified that he was dubious of defendant’s
response because “unfortunately[,] not everybody tells the
truth.”
4
ORS 164.135 has been amended since defendant committed his crimes.
Or Laws 2019, ch 530, § 1. Because of that amendment, we refer to the version of
the statute in effect during the events in question. ORS 164.135 (2015) provides,
in part:
“(1) A person commits the crime of unauthorized use of a vehicle when:
“(a) The person takes, operates, exercises control over, rides in or other-
wise uses another’s vehicle, boat or aircraft without the consent of the
owner[.]”
Cite as 308 Or App 84 (2020) 93
The interaction between Burk and defendant—Burk
asking whether defendant had permission to use the truck
and defendant stating, “Yes. I do.”—carries little, if any,
weight in the reasonable suspicion calculus. We conclude
that a mere question and answer that denies the existence of
criminal conduct, without more, cannot provide the basis for
reasonable suspicion. Notwithstanding Knight’s skepticism
as to the truthfulness of the answer, which was not based
on anything defendant said or did, there was nothing else
to the interaction between Burk and defendant to suggest
criminal activity was afoot.5 Indeed, even if defendant had
answered the question in an evasive or nonresponsive way,
that still would not have amounted to reasonable suspicion.
See State v. Frias, 229 Or App 60, 66, 210 P3d 914 (2009) (“It
was not objectively reasonable to suspect present criminal
drug activity solely because defendant had been involved in
drugs in the past and did not want to fully answer police
questions.”).
In short, because there were insufficient specific
and articulable facts to support a conclusion that defendant
committed or was about to commit UUV, Knight’s suspicion
was not objectively reasonable.
2. Theft of the cell phone
With respect to theft, defendant argues that
Knight’s suspicion that defendant committed theft of his
mother’s phone was not objectively reasonable. Specifically,
defendant contends that the facts known to Knight at the
time of his interaction with defendant were insufficient to
establish reasonable suspicion of theft, because there were
no facts suggesting that defendant intended to permanently
deprive his mother of the phone. The state remonstrates
that “because defendant admitted to taking his mother’s cell
phone—a person who had called 9-1-1 prior to defendant’s
arrival at the police station—Sergeant Knight was justified
in stopping defendant to determine whether a theft had in
fact been committed.” We agree with defendant’s position.
5
To the extent that the state relies on Knight’s suspicion about defendant’s
truthfulness, we reject the notion that an officer can form objectively reasonable
suspicion that someone is lying based solely on testimony that “not everybody
tells the truth.”
94 State v. Smith
ORS 164.015 describes the crime of theft.6 One of
the elements of theft is an “intent to permanently deprive
a person of property[.]” State v. Browning, 282 Or App 1, 6,
386 P3d 192 (2016), rev den, 361 Or 311 (2017). And, as the
state acknowledges, the focus is on the intent at the time
of the taking. See State v. Spears, 223 Or App 675, 677, 196
P3d 1037 (2008) (concluding that “for purposes of the crime
of theft, a person who acts with the requisite intent ‘takes’
the property of another when he or she moves that property,
however slightly”).
When Knight confronted defendant, Knight knew
only that (1) defendant had had possession of his mother’s
phone and had given it to Burk; and (2) defendant’s mother
had called 9-1-1 and officers were being sent to her home.
Knight did not know the substance of the 9-1-1 call, nor did
he know any of the circumstances that led defendant to hand
the phone over to police as he entered the police station. The
facts known by Knight, as they pertain to defendant’s con-
duct, do not give rise to an objectively reasonable suspicion
that defendant intended to permanently deprive his mother
of the phone.
Specifically, Knight did not testify to any facts that
would lead to any reasonable inferences regarding defen-
dant’s intent at the time that defendant took his mother’s
phone. At best, Knight had a hunch that defendant intended
to permanently deprive his mother of her phone. See State
v. Walker, 277 Or App 397, 401, 372 P3d 540, rev den, 360
Or 423 (2016) (law enforcement may not “interfere with [a]
person’s liberty based only on intuition or a hunch”).
To the extent that the state relies on defendant
admitting that he was in possession of his mother’s phone,
mere possession of someone else’s phone, without more, is
6
ORS 164.015 provides, in part:
“A person commits theft when, with intent to deprive another of property
or to appropriate property to the person or to a third person, the person:
“(1) Takes, appropriates, obtains or withholds such property from an
owner thereof[.]”
ORS 164.015 has been amended since defendant committed his crimes. Or Laws
2016, ch 47, § 7. Because that amendment does not affect our analysis, we refer to
the current version of the statute in this opinion.
Cite as 308 Or App 84 (2020) 95
not inherently suspicious of criminal conduct. We have pre-
viously stated that
“a set of facts will not always create reasonable suspicion
just because those facts are consistent with, but do not
necessarily suggest, a crime being committed. Wearing
clothing while driving, to use an extreme example, is
also consistent with the transportation of narcotics. Less
extremely, so too (for all we know) is wearing cologne. This
consistency, however, would not be enough to support rea-
sonable suspicion.”
State v. Alvarado, 257 Or App 612, 629, 307 P3d 540 (2013).
Here, the bare fact that defendant admitted possession of
his mother’s phone is an example of a fact consistent with,
but not necessarily suggestive of, a crime currently being
committed or having recently been committed.
In short, the facts known to Knight based on defen-
dant’s behavior are insufficient to establish that defendant
was attempting to permanently deprive his mother of her
phone. Accordingly, we conclude that Knight’s suspicion that
defendant committed a theft of his mother’s phone was not
objectively reasonable.
C. “Material Witness” Stop
The state alternatively argues in a footnote that,
if Knight did not have reasonable suspicion of a crime,
Knight’s stop of defendant was nonetheless justified because
defendant was a material witness to a crime. Citing State
v. Fair, 353 Or 588, 302 P3d 417 (2013), and Outdoor Media
Dimensions Inc., 331 Or at 659-60 (describing the “right for
the wrong reason” doctrine), the state argues that we should
affirm on the alternative basis that, because “the [9-1-1]
call discussed defendant, coupled with defendant’s agitated
state and * * * Knight’s concern about a domestic dispute, it
was reasonable for * * * Knight to stop defendant in order to
investigate what required the [9-1-1] call in the first place.”
In Fair, the Supreme Court held that “officers con-
stitutionally may, in appropriate circumstances, stop and
temporarily detain for questioning a person whom they
96 State v. Smith
reasonably believe is a potential material witness to a
crime.” 353 Or at 609. That kind of “material witness” stop
will be constitutional if
“(1) the officer reasonably believes that an offense involv-
ing danger of forcible injury to a person recently has been
committed nearby; (2) the officer reasonably believes that
the person has knowledge that may aid the investigation
of the suspected crime; and (3) the detention is reasonably
necessary to obtain or verify the identity of the person, or
to obtain an account of the crime.”
Id.Here, even if the Outdoor Media Dimensions Inc.
conditions were met, the requirements discussed in Fair
are not. That is, this is not a situation where the material
witness stop would apply because it was not reasonable for
Knight to believe that defendant had been recently involved
in an offense involving danger of forcible injury. See State
v. Chittenden, 305 Or App 483, 490-91, 470 P3d 424 (2020)
(concluding that the material witness exception did not apply
because there was “no indication” that the officer reason-
ably believed that the defendant had witnessed any recent
crime “ ‘involving danger of forcible injury to a person’ ”
(quoting Fair, 353 Or at 609)). Knight had no knowledge of
the contents of the 9-1-1 call, nor had the state established
any other facts that would support an officer’s reasonable
belief that an offense involving danger of forcible injury
had recently occurred. Further, other than impermissible
conjecture, there is nothing to suggest that defendant had
any knowledge of any purported crime. Rather, all Knight
knew was that defendant’s mother had called 9-1-1 and
that officers were dispatched to her residence based on that
call. Accordingly, we reject the state’s alternative basis for
affirmance.
III. CONCLUSION
In sum, Knight’s suspicion of defendant having
committed UUV or theft was not objectively reasonable;
therefore, his order to defendant to remain at the scene was
unlawful. Further, his stop of defendant was not justified as
a “material witness” detention. Thus, because defendant was
Cite as 308 Or App 84 (2020) 97
unconstitutionally stopped, the trial court erred in denying
his motion for judgment of acquittal on the IPO charge.
Conviction on Count 3 reversed; remanded for
resentencing; otherwise affirmed.