State v. Roberts , 308 Or. App. 225 ( 2020 )

225
Argued and submitted September 24, affirmed December 30, 2020, petition for
review denied April 8, 2021 (367 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JODI MICHELLE ROBERTS,
Defendant-Appellant.
Washington County Circuit Court
18CR64689; A170270
480 P3d 1016
A witness observed a shoplifting suspect have a “slight conversation” with
people in defendant’s vehicle as the suspect fled the store immediately follow-
ing the theft. Based on that information and her experience as an officer that
shoplifters often work in teams, the responding officer suspected defendant was
involved in the theft and stopped her vehicle. Defendant consented to a search,
resulting in the discovery of methamphetamine. At trial, defendant moved to
suppress that evidence, but the trial court denied the motion and defendant was
convicted of unlawful possession of methamphetamine. Appealing that judg-
ment, defendant assigns error to the trial court’s denial of her motion to suppress.
She argues that the stop violated Article I, section 9, of the Oregon Constitution,
because it was not supported by objectively reasonable suspicion that defendant
had committed any crime related to the theft. Held: The trial court did not err in
denying defendant’s motion to suppress because the officer had reasonable suspi-
cion that defendant was involved in the theft.
Affirmed.
Ricardo J. Menchaca, Judge.
Nora Coon, 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.
Daniel Norris, 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 Shorr, Judge, and
Powers, Judge.
SHORR, J.
Affirmed.
226 State v. Roberts
SHORR, J.
Defendant appeals from a judgment of conviction
for unlawful possession of a useable quantity of metham-
phetamine, ORS 475.894(2)(a). She assigns error to the trial
court’s denial of her motion to suppress evidence obtained
after her car was stopped by police on suspicion of involve-
ment in a theft of merchandise from a nearby Home Depot.
Subsequent to the stop, defendant consented to a search of
her car, where methamphetamine was found. Defendant
argues that the stop violated Article I, section 9, of the
Oregon Constitution, because it was not supported by objec-
tively reasonable suspicion that defendant had committed a
specific crime or type of crime. Defendant contends that her
consent was the product of an unlawful stop. We conclude
that the trial court did not err in denying defendant’s sup-
pression motion. Therefore, we affirm.
We review the trial court’s ruling denying defen-
dant’s motion to suppress for legal error. State v. Maciel-
Figueroa, 361 Or 163, 165-66, 389 P3d 1121 (2017). We are
bound by the court’s factual findings if there is constitution-
ally sufficient evidence in the record to support them. State
v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). Where the court
did not make express findings, and there is evidence from
which the court could have found a fact in more than one
way, we presume that the court decided the facts consis-
tently with its ultimate conclusion. Id. We summarize the
facts in accordance with those standards.
On September 22, 2018, at approximately 5:50 p.m.,
Officer Bobier responded to a call of a “Theft In Progress” at
a Home Depot. Over her police radio, Bobier heard a report
from dispatch that a female suspect with “curly brown hair”
wearing an orange shirt had taken power tools from the
Home Depot. As the suspect ran from the store, a witness
observed her “stop[ ] and [make] contact in the parking lot
with a white Dodge Intrepid” that was marked in the back
with a temporary trip permit. The witness reported that the
vehicle was occupied by one male and one female, and that
the suspect had a “slight conversation” with the occupants. It
was unknown if the female theft suspect had either passed
items to the vehicle’s occupants or gotten into the vehicle
Cite as 308 Or App 225 (2020) 227
herself. However, Bobier understood that “[the theft suspect]
was last seen having a conversation with the people in this
vehicle.” The vehicle was then seen heading westbound on
TV Highway.1
As Bobier looked for the white Intrepid, Officer Voth
also made his way to the area. Although Bobier was only
receiving information via her police radio, Voth was also
reading the written dispatch notes as they appeared in his
computer system. Voth understood that the loss prevention
officer (LPO) had unsuccessfully tried to stop the suspect,
that the suspect was “running towards the Red Robin”
across the street, and that a white Dodge was “possibly
involved.” Voth believed that he was looking for “a vehicle in
the area and a female in the area, on foot.” Voth knew from
past dealings that this LPO would typically follow shop-
lifters outside and keep them in visual range for as long as
possible until police arrived.
Bobier had been in law enforcement for 14 years
and had responded to “at least 500 or more” calls involving
thefts from stores. Bobier testified that “it’s not unusual at
all” for retail thefts to involve multiple suspects, and that
“it is common” for one person to go inside a store and steal
while another person waits outside for them in a getaway
vehicle. Bobier testified that it was typical in her experience
that, if an LPO attempted to stop a shoplifter, the shoplifter
might try to get rid of the stolen merchandise. Voth testified
that, in his experience, that happens about 50 percent of the
time, particularly in cases where a shoplifter believes they
are about to be successfully stopped by an LPO.
Within about five to 10 minutes of hearing the
report over the radio, Bobier located a white Dodge Intrepid
with a trip permit in the back, occupied by one male and one
1
Bobier understood the reporting party to be a particular loss prevention
officer (LPO) at that Home Depot store with whom she had some familiarity.
In fact, the LPO did not have personal knowledge of all the facts relayed—an
unnamed independent witness had observed the interaction with the Intrepid in
the parking lot. At the time Bobier executed the stop, she was not aware that the
report included observations from multiple parties. Defendant argued at length
in the trial court that the unnamed witness’s report should not be treated as reli-
able for purposes of the court’s reasonable suspicion analysis. However, she does
not repeat those arguments on appeal.
228 State v. Roberts
female, headed westbound on TV Highway as the report-
ing party had described. The vehicle was “within a quarter
mile” of the Home Depot. Bobier initiated a stop. She testi-
fied that she did so because she
“believed that [the vehicle] was possibly involved with the
theft that had just occurred from the Home Depot, based
upon the description of the car, the occupants that were in
the vehicle. And that it was reported that the suspect had
approached that vehicle and it was unknown if she entered
it. And I believed that there was possibly an exchange of
stolen items and that the stolen items possibly were in that
car.”
Defendant was the driver of that car. Bobier testified that,
upon approaching the car, she did not see the theft sus-
pect in the vehicle. She did not see any Home Depot bags
either, although she could not see under the seats or in the
trunk. Approximately 20 to 30 seconds after Bobier initi-
ated the stop, Voth arrived on the scene. Voth spoke with
the backseat passenger while Bobier questioned defendant.
Voth noted that the single passenger in the car was sitting
directly behind the driver, rather than in the front passen-
ger seat, a seating arrangement he considered “unusual”
and which led him to believe that “there [were] people that
weren’t present in the car and, hence, we were still looking
for a couple of people.” Bobier asked defendant to step out of
the vehicle, read defendant her Miranda rights, and ques-
tioned her about the theft incident. Defendant admitted to
knowing the theft suspect by first name only and reported
that the suspect “walked up to her vehicle and said hi.” The
male passenger admitted to Voth that the theft suspect was
his wife. Bobier asked for defendant’s consent to search the
car, which was granted. During the search, Bobier located
a small bag of methamphetamine and a methamphetamine
pipe.2 Defendant was charged with one count of unlawful
possession of methamphetamine—usable quantity, a Class
A misdemeanor.3
2
No stolen merchandise was discovered in the vehicle. The theft suspect was
subsequently apprehended elsewhere with “some” of the merchandise still in her
possession.
3
Defendant was not charged with any crimes related to the theft from Home
Depot.
Cite as 308 Or App 225 (2020) 229
In advance of trial, defendant moved to suppress
“the stop * * *, as well as the seizure of any and all evidence
obtained as a result therefrom, including all oral deriva-
tive evidence.” As relevant to this appeal, defendant argued
that the mere fact that the theft suspect had “some kind of
interaction” with defendant’s car was not sufficient to sup-
port Bobier’s suspicion that defendant committed any crime
related to the theft. The state argued that, under the total-
ity of the circumstances, Bobier did have reasonable suspi-
cion that defendant was involved in the theft and may have
taken possession of the stolen property or provided trans-
portation to the theft suspect. The trial court denied the
motion, concluding that “there was reasonable suspicion and
that both officers were able to describe specific articulable
facts.” The court noted certain specific facts in making its
ruling: that a white Dodge Intrepid with a trip permit “was
described as possibly being involved” in a theft in progress;
that the suspect had made contact with that vehicle; and
that “the seating arrangement was unusual” when the offi-
cer stopped the car a quarter of a mile from the theft site.
Defendant was tried before the court on stipulated facts and
convicted of possession of methamphetamine. This timely
appeal followed.
Defendant reiterates her argument that the cir-
cumstances in this case are not enough to meet the reason-
able suspicion standard for the police to stop her car. She
posits that her mere association with the theft suspect and
their short exchange of words is insufficient to show rea-
sonable suspicion that defendant committed a crime. The
state argues that the totality of circumstances in this case
is more than a mere association or exchange of words, and
that, when the actual totality of circumstances is consid-
ered, it was reasonable for Bobier to have suspected that
defendant aided and abetted the theft and that defendant’s
car could contain the merchandise or the suspect.
We turn to the law that applies to Bobier’s stop of
defendant. Article I, section 9, protects individuals against
unreasonable searches and seizures. A stop, or temporary
detention for investigatory purposes, is a seizure that must
be supported by reasonable suspicion of criminal activity to
comply with Article I, section 9. See Maciel-Figueroa, 361
230 State v. Roberts
Or at 169-70. A stop is supported by reasonable suspicion
when the officer subjectively believes that the person has
committed or is about to commit a specific crime or type of
crime, and that belief is objectively reasonable in light of the
totality of the circumstances existing at the time of the stop.
Id. at 182.
Reasonable suspicion must be supported by spe-
cific and articulable facts. Id. at 165. The standard does not
require that those facts “conclusively indicate illegal activ-
ity but, rather, only that those facts support the reasonable
inference” that the person committed or was about to com-
mit a specific crime or type of crime. State v. Semore, 298
Or App 341, 345, 445 P3d 895 (2019) (citing State v. Hiner,
240 Or App 175, 181, 246 P3d 35 (2010)). An officer can draw
on his or her training and experience to make reasonable
inferences under the circumstances, but “training and expe-
rience alone are not an adequate substitute for objectively
observable facts.” State v. Oller, 277 Or App 529, 534, 371
P3d 1268 (2016), rev den, 361 Or 803 (2017). Where “reason-
able suspicion is based upon a chain of interlocking infer-
ences, we assess whether those inferences are individually
and collectively reasonable.” Id. at 535. The reasonable sus-
picion standard includes “a proper regard for the experience
that police officers bring with them when they encounter
criminal suspects.” State v. Holdorf, 355 Or 812, 827-28, 333
P3d 982 (2014). Overall, reasonable suspicion “is a relatively
low barrier.” State v. Jones, 245 Or App 186, 192, 263 P3d
344 (2011), rev den, 354 Or 838 (2014).
The state does not dispute that Bobier stopped
defendant when she pulled over the car defendant was driv-
ing. Further, defendant does not dispute that Bobier subjec-
tively believed that defendant was involved in the theft from
the Home Depot. The only issue, then, is whether Bobier’s
suspicion was objectively reasonable.
Our task on appeal is to consider (1) the facts that
were known to Bobier at the time that she stopped defen-
dant4 and (2) whether, as a matter of law, those facts gave
4
In considering the “unusual” seating arrangement inside the Intrepid, the
trial court appears to have considered a fact that Bobier learned after she stopped
the vehicle. However, we do not consider that fact in our analysis because, for
Cite as 308 Or App 225 (2020) 231
Bobier objectively reasonable suspicion that defendant was
aiding and abetting or otherwise involved in a theft. When
Bobier stopped defendant, she knew the following facts:
(1) that dispatch was reporting a “Theft in Progress” involv-
ing a described female suspect who had just stolen power
tools from the Home Depot; (2) that a witness had observed
the suspect stop in the Home Depot parking lot and exchange
words with someone in a vehicle as she left the store; (3) that
the vehicle was described as a white Dodge Intrepid with a
trip permit and one female and one male occupant, heading
west on TV Highway; (4) that a vehicle matching that descrip-
tion exactly was quickly found one-quarter mile away; and
(5) that it is common for shoplifters to hand off stolen mer-
chandise to third parties and use getaway cars. We conclude
that those facts are sufficient to support Bobier’s reasonable
suspicion that defendant was involved in the theft from the
Home Depot, possibly by receiving the stolen merchandise
or acting as a getaway driver for the theft suspect.
We start by considering the most significant artic-
ulable fact in this case, that a witness reported to police
that they had observed the shoplifting suspect stop and
have a “slight conversation” with the occupants of the white
Intrepid. Admittedly, the exchange of a few words with a
shoplifting suspect is a somewhat innocuous fact on its own,
especially when we do not know the content of that conversa-
tion, or whether defendant, rather than her passenger, was
a party to it. As we have said before, mere association with
a person who has committed a crime is not itself sufficient to
establish reasonable suspicion. See, e.g., State v. Kingsmith,
256 Or App 762, 772, 302 P3d 471 (2013) (summarizing
cases). Even if defendant was a party to the conversation,
there could be entirely innocent reasons why a person would
exchange words with a shoplifting suspect separate from
criminal activity or aiding and abetting behavior. However,
our standard is a relatively low one.
“[T]he 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
purposes of the reasonable suspicion inquiry, we must only consider the facts
known to Bobier at the time she developed suspicion and began the stop.
232 State v. Roberts
facts known and articulated by the officer, a reviewing
court must conclude that the officer’s subjective belief could
be true, as a matter of logic.”
Maciel-Figueroa, 361 Or at 184 (emphasis in original). When,
as explained below, this “slight conversation” is viewed in
context with the surrounding circumstances, that standard
is met.
Here, the suspect’s brief conversation with the occu-
pants of the car cannot be divorced from two surrounding
circumstances. First, and most significantly, the suspect
proceeded to talk to the car’s occupants as she was actively
fleeing the Home Depot during a “Theft In Progress.”
Second, defendant drove away and left the parking lot
soon after that interaction. When these factors are viewed
together, through the lens of Bobier’s training and experi-
ence that shoplifting is often done with the assistance of a
getaway car, we conclude that Bobier’s subjective belief that
the suspect and defendant were working together and that
the car could contain the merchandise or the suspect herself
meets the low threshold of “could be true, as a matter of
logic,” and is therefore objectively reasonable. First, it was
reasonable for Bobier to infer that the suspect’s interaction
with defendant’s vehicle was likely not a casual encounter.
Considering the circumstances known to Bobier that the
suspect had made a quick departure from the store mere
moments before, it is reasonable to infer that a suspect in
that position would want to make a quick getaway or at
least separate herself from evidence of her crime. At a mini-
mum, the officer had a reasonable suspicion that the suspect
and the occupants of the vehicle may have been working
together. Second, the fact that the Intrepid left the Home
Depot parking lot following the interaction further supports
the inference that the suspect and the occupants of the vehi-
cle may have been working together. While defendant is cor-
rect in pointing out that no one could say how quickly the
Intrepid drove away, the record does establish that the car
was located one-quarter mile away within five to 10 min-
utes of dispatch first receiving and broadcasting the theft
report. That information allows a reasonable inference that
the car started driving away soon after the interaction.
Although defendant’s departure from the parking lot at that
Cite as 308 Or App 225 (2020) 233
time could have been coincidental, the reasonable suspi-
cion standard does not require that an officer forgo a stop
because there may be alternative, innocent explanations
for suspicious activity. “The possibility that there may be a
non-criminal explanation for the facts observed or that the
officer’s suspicion will turn out to be wrong does not defeat
the reasonableness of the suspicion.” State v. Braukman, 246
Or App 123, 127, 265 P3d 28 (2011), rev den, 351 Or 675(2012) (citing State v. Kolendar, 100 Or App 319, 323, 786
P2d 199, rev den, 309 Or 698 (1990)). Considering the above
facts known to Bobier and the reasonable inferences drawn
from those facts, Bobier had at least a reasonable suspicion
that the occupants of the car were working with the suspect
to aid and abet the theft, or were otherwise involved in the
theft from the Home Depot, and that she may find either the
suspect or the stolen merchandise in the car.
Referring to State v. Fuller, 296 Or App 425, 438
P3d 431 (2019), defendant argues, as we understand it,
that the trial court improperly used Bobier’s knowledge
that shoplifters work in teams, as supplied by her training
and experience, as a replacement for specific and articula-
ble facts that defendant in particular committed a specific
crime. We do not agree.
In Fuller, the officer observed a truck driving with
a bed full of cut wood rounds at 2:15 a.m., with no permit or
tag visible on the load. Id. at 426. The officer believed, based
on his training and experience, that individuals who remove
firewood from the forest illegally are likely to cut the wood
during the day but drive it out of the forest at night to avoid
detection. Id. at 426-27. Based on a mistaken understand-
ing of the permit tag requirements, the officer executed a
stop. Id. at 427. We concluded that the specific and artic-
ulable facts that the officer observed “could not support a
nonspeculative inference that defendant was transporting
wood in violation of [Oregon law].” Id. at 433. We explained:
“[A]lthough Childers testified that, in his training and
experience, individuals who remove wood from forests with-
out the required permits often do so at night, nothing about
that knowledge was specific to defendant or otherwise sug-
gested that he was engaged in that activity. Rather, the
only specific information Childers knew about defendant
234 State v. Roberts
was that he was conveying firewood in the early morning
hours, a practice Childers evidently knew to be common
among wood thieves. And while that information may have
contributed to reasonable suspicion that defendant was
hauling the wood without a required permit, in our view,
that information standing alone gave rise to nothing more
than a mere speculation that defendant was unlawfully
transporting special forest products.”
Id. at 433-34 (emphasis in original).
The case before us is distinguishable from Fuller. In
Fuller, the defendant’s behavior was objectively innocuous
when not viewed through the lens of the officer’s experience
regarding illegal wood harvesting practices. Specifically,
when the officer’s experience was left out of the analysis,
the defendant’s actions—driving at night with a truck full
of wood—did not imply any sort of criminal activity. Thus,
we concluded in Fuller that the officer’s suspicion was “mere
speculation.” Here, in contrast, defendant’s (or her passen-
ger’s) brief conversation with an actively fleeing theft suspect,
and defendant’s subsequent departure from the parking lot,
are at least notable, even without the added context that
shoplifters often work in teams. “Officer experience might
explain legal but otherwise suspicious behavior to place it
in context for the factfinder, but it cannot be a substitute for
specific and articulable facts.” State v. Aguilar, 307 Or App
457, 470, 478 P3d 558 (2020). In this case, Bobier pointed to
specific and articulable facts that defendant or her passen-
ger had exchanged words with a fleeing theft suspect, and
that defendant then drove away. Bobier’s experience helps
explain this “legal but otherwise suspicious behavior.”
In sum, we reject defendant’s challenge to the trial
court’s denial of her motion to suppress evidence. The trial
court did not err in denying defendant’s motion to suppress
because the officer had reasonable suspicion that defendant
was involved in the theft. Accordingly, we affirm.
Affirmed.