State v. Lora ( 2021 )

666
Argued and submitted November 23, 2020, reversed and remanded
June 30, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ERIK RUBEN LORA,
Defendant-Appellant.
Jackson County Circuit Court
19CR07526; A170898
492 P3d 757
Defendant appeals a judgment of conviction for one count of unlawful deliv-
ery of methamphetamine, ORS 475.890(2). On appeal, defendant contends that
the trial court erred in denying his motion to suppress. He argues that police
unlawfully arrested him when they handcuffed him without a sufficient officer-
safety justification, and that that unlawful arrest directly resulted in the discov-
ery of two objects containing methamphetamine. The state responds that officer
safety concerns justified handcuffing defendant. Alternatively, the state argues
that, even if defendant is correct that he was unlawfully arrested when the offi-
cers handcuffed him, that illegality did not lead to the discovery of the first object
containing methamphetamine. Held: The trial court erred. The state did not
meet its burden to establish that the officers’ subjective safety concerns were
objectively reasonable. Thus, officer safety concerns did not justify handcuffing
defendant. Additionally, it was only after handcuffing defendant that officers dis-
covered that first object contained methamphetamine.
Reversed and remanded.
David J. Orr, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
TOOKEY, J.
Reversed and remanded.
Cite as 312 Or App 666 (2021) 667
TOOKEY, J.
Defendant appeals a judgment of conviction for
one count of unlawful delivery of methamphetamine, ORS
475.890(2). Defendant entered a conditional no contest
plea reserving his right to seek appellate review of the
trial court’s denial of his motion to suppress evidence—
viz., two objects that contained methamphetamine. On
appeal, defendant assigns error to that denial, arguing
that police unlawfully arrested him when they handcuffed
him “without a sufficient officer-safety justification,” and
that that “unlawful arrest directly resulted in the discov-
ery” of the two objects containing methamphetamine. The
state responds that “officer safety concerns justified hand-
cuffing defendant.” The state also contends that, in any
event, “even if defendant is correct that he was unlawfully
arrested when the officers handcuffed him * * * that ille-
gality did not lead to the discovery of the first package of
methamphetamine.”
For the reasons that follow, we conclude that offi-
cer safety concerns did not justify handcuffing defendant.
We also reject the state’s argument that the unlawful hand-
cuffing defendant did not lead to the discovery of the first
package of methamphetamine. Therefore, we reverse and
remand.
I. BACKGROUND
“We review the denial of a motion to suppress for
legal error and are bound by the trial court’s explicit and
implicit factual findings if evidence in the record supports
them.” State v. Bailey, 307 Or App 782, 783, 479 P3d 304
(2020) (internal quotation marks omitted). We state the
facts in accordance with that standard.
Medford Police Detective Schwab received informa-
tion that defendant was transporting a “large amount” of
methamphetamine from Bakersfield, California, to Medford,
Oregon, and that he would be doing so in a white Honda SUV
or minivan. Schwab reviewed defendant’s Facebook profile
and criminal history. He learned that defendant “had gang
ties” and also had been “arrested for gang involvement and
firearms.”
668 State v. Lora
Around 1:00 a.m., a different officer located a van
matching the description of defendant’s vehicle and saw it
turn without signaling. Several police cars pursued the van
and initiated a traffic stop. The van pulled into a parking lot
and parked. At least six officers were on scene to assist with
the stop, though the precise number of officers is unclear
from the record.
One of the officers approached the van and spoke
to the driver. The driver admitted that she had no license
and that the van was uninsured. She provided a California
identification card. The van’s windows were tinted. The van
had one passenger in the front seat and two passengers in
the back seat, one of whom was lying down and covered by a
blanket. Initially, however, it was unclear to the officers how
many occupants the van had, and it was difficult to see into
the back of the van.
Officers then asked the passengers in the backseat
to get out of the van. Defendant and the other passenger in
the backseat got out of the van.
When defendant got out of the van, Schwab and
another officer, Pierce, observed what Schwab described as
a “little pocketknife” on defendant’s belt. Schwab took the
knife.
Schwab asked defendant if the officers could “search
[defendant] for drugs or weapons.” Defendant consented.
Pierce then started to “patdown” defendant. While
patting down defendant, he felt a “large,” “odd,” and “hard”
object on the front of defendant’s waistband. At that time,
Pierce had “no idea” what it was and did not ask defendant
what it was but could “just tell it was a large foreign object.”
Pierce then motioned to Schwab for assistance hand-
cuffing defendant. Schwab helped Pierce handcuff defen-
dant, after which Pierce conducted a “more expansive pat-
down” and discovered another object in defendant’s sleeve,
similar to the object in defendant’s waistband.
Police later learned that the two objects contained
methamphetamine, and defendant was charged with one
count of unlawful delivery of methamphetamine, ORS
Cite as 312 Or App 666 (2021) 669
475.890, and one count of unlawful possession of metham-
phetamine, ORS 475.894(2)(b).
Defendant moved to suppress the evidence—viz.,
the two objects that contained methamphetamine—as the
“proceeds of an unlawful warrantless arrest.”1 The state
argued, among other points, that officer safety justified the
officers’ actions during the stop.
During the hearing on the motion to suppress,
Schwab explained that, initially, if defendant “didn’t want
to consent to any patdown, he would have been able to walk
away,” because officers “didn’t have anything to hold him.”
About the conduct of the van’s occupants during
the traffic stop, Pierce testified that everyone in the van,
including defendant, was “pretty cooperative,” that police
did not face “any form of resistance at all or non-compliance”
from any of the van’s occupants, and that “no one was even
remotely argumentative at any point.” Schwab testified
that defendant was “very cooperative.” Another officer tes-
tified that he did not observe any “threatening behavior” or
“aggressive language” during the traffic stop.
Nevertheless, during the hearing, Schwab and
Pierce identified several features of the traffic stop that
raised safety concerns for them prior to handcuffing defen-
dant, including:
• Defendant’s prior arrests for “firearms” and defen-
dant’s “gang involvement,” because people who
“carry guns could hurt” police, and “[p]eople involved
in gangs don’t like the police usually”;
• That it was night, because “it’s easier for people to
conceal things” and “[i]t’s harder for us to see what
they have in their hands, you know, what’s in their
vehicle”;
• That the van had multiple occupants and tinted
windows, and the officers had difficulty seeing the
passengers, one of whom was covered by a blanket
at the time of the stop;
1
Defendant also sought suppression of any “derivative evidence obtained
therefrom.”
670 State v. Lora
• The possibility that defendant was a “large quan-
tity narcotics dealer”; and
• That defendant had a knife on his belt when he
exited the van.2
Additionally, Pierce testified that, although he had
“no idea” what the object that he discovered on defendant
was during the “patdown,” the area it was located—defen-
dant’s waistband—was an area commonly used to conceal
weapons because it is “the most accessible” and “most con-
cealable” on a person’s body.3
After the hearing, the trial court denied defendant’s
motion to suppress.
Defendant then entered a conditional no contest
plea to one count of unlawful delivery of methamphetamine.
The trial court entered a judgment of conviction on that
count and dismissed the charge of unlawful possession of
methamphetamine. Defendant appeals that judgment.
II. ANALYSIS
A. The Officer-Safety Doctrine
On appeal, as noted above, defendant argues that
he was unlawfully arrested when Pierce and Schwab hand-
cuffed him “without a sufficient officer-safety justification.”
The state contends that the trial court correctly denied
defendant’s motion to suppress because “the officers’ hand-
cuffing of defendant was justified by their objectively rea-
sonable concerns for their safety.”
“In order to be lawful under Article I, section 9, a
warrantless search or seizure must fall within one of the
2
Pierce testified that the knife caused him to have safety concerns. Schwab,
however, testified that the “little pocketknife” did not cause him any safety
concerns.
3
When Pierce was asked whether he “thought” the object he discovered on
defendant “was a weapon,” Pierce responded, “I had no idea what it was.”
When Pierce was asked if he had reason to believe the object was a weapon,
Pierce responded:
“Well, when your attention is diverted and you’re trying to articulate an
object * * * on someone’s person, not only does it become a search with the
articulation, but it also divides your attentions and leaves you susceptible to
assault.”
Cite as 312 Or App 666 (2021) 671
few established exceptions to the warrant requirement.”
State v. Goguen, 308 Or App 706, 709, 481 P3d 1011 (2021)
(internal quotation marks omitted). In State v. Bates, 304 Or
519, 524, 747 P2d 991 (1987), the Supreme Court held:
“Article I, section 9, of the Oregon Constitution does not
forbid an officer to take reasonable steps to protect himself
or others if, during the course of a lawful encounter with a
citizen, the officer develops a reasonable suspicion, based
upon specific and articulable facts, that the citizen might
pose an immediate threat of serious physical injury to the
officer or to others then present.”
Under the officer-safety doctrine, “the state bears a
two-part burden of proof and persuasion.” State v. Ramirez,
305 Or App 195, 205, 468 P3d 1006 (2020). First, the state
must prove the subjective component of officer safety. For
that, “the state bears the burden of establishing that:
(1) based on specific and articulable facts known to the offi-
cer, the officer (2) had subjective reasonable suspicion, that
(3) the defendant posed an immediate threat, and (4) the
threat was of serious physical injury.” Id. Second, once the
state has met its burden on the subjective component, “it
then bears the burden to prove that, under the totality of
the circumstances, (1) the officer’s subjective safety concerns
of an immediate threat of serious physical injury were objec-
tively reasonable, and that (2) the officer’s response to the
safety concerns was, itself, objectively reasonable.” Id.In this case, defendant does not contend that the
officers were not subjectively concerned that defendant
presented an immediate threat of serious physical injury.
Rather, defendant contends that that concern was not objec-
tively reasonable.
In determining whether officers’ concern for their
safety is objectively reasonable, we “examine the totality of
the circumstances as they reasonably appeared to the offi-
cers at the time.” State v. Jackson, 190 Or App 194, 199, 78
P3d 584 (2003), rev den, 337 Or 182 (2004). “To be objectively
reasonable, the officer’s safety concerns must be based on
facts specific to the particular person searched, not on intu-
ition or a generalized fear that the person may pose a threat
to the officer’s safety.” State v. Smith, 277 Or App 298, 303,
672 State v. Lora
373 P3d 1089, rev den, 360 Or 401 (2016) (internal quotation
marks omitted). “To consider the true totality of the circum-
stances * * * requires a court to consider the entire encoun-
ter as it objectively transpired.” Ramirez, 305 Or App at 207.
In making its officer-safety argument on appeal,
the state points to a number of facts regarding this encoun-
ter, including that it took place at night; that defendant’s
criminal history included “priors with firearms” and gang
involvement; that multiple people were in the stopped vehi-
cle; that officers had difficulty seeing into the vehicle; that
when defendant got out of the vehicle he had a knife on his
belt; and that Pierce had discovered a large, unknown object
in defendant’s “waistband area,” which is a “common area to
conceal weapons.”
On this record, given the way in which the officers’
encounter with defendant transpired prior to handcuffing
him, we cannot conclude that the state met its burden to
establish that the officers’ subjective safety concerns were
objectively reasonable.4 See, e.g., Goguen, 308 Or App at 710(noting “that [the] encounter happened at night adds little
to justify officer safety concerns”); State v. Bradford, 290 Or
App 889, 898, 417 P3d 530 (2018) (noting that “we have cau-
tioned that an officer’s perceptions of the stereotypical prac-
tices of gang members is the kind of generalized suspicion
that seldom will constitute a reasonable suspicion based on
particularized facts” (internal quotation marks and brack-
ets omitted)); State v. Morfin-Estrada, 251 Or App 158, 169,
283 P3d 378, rev den, 352 Or 565 (2012) (“We have held in
the context of cases involving searches for officer safety
purposes, general information that gang members carry
weapons is insufficient to give rise to a reasonable suspicion
that a particular gang member is carrying a weapon.”); State
v. Steffens, 250 Or App 742, 750, 282 P3d 888 (2012) (“An
officer’s knowledge of the defendant’s past conduct is rele-
vant to the officer-safety inquiry; however, where past con-
duct is not coupled with any indication that the defendant
is currently dangerous, it is unlikely to be determinative.”
(Emphasis in original.)).
4
Because we conclude that the officers’ subjective safety concerns were not
objectively reasonable, we do not consider whether the officers’ response to the
safety concerns was, itself, objectively reasonable.
Cite as 312 Or App 666 (2021) 673
In particular, we note that although the presence
of the pocketknife on defendant’s person is a proper consid-
eration, “like all facts, it must be viewed in the totality of
the circumstances of the entire encounter.” Ramirez, 305 Or
App at 208. That totality includes the fact that, at the time
officers decided to handcuff defendant, the knife had been
removed by officers, and that defendant—indeed, all of the
van’s occupants—were cooperative throughout the encoun-
ter. See id. (“That defendant had previously tried to walk
away from the initial stop is a proper consideration, but,
like all facts, it must be viewed in the totality of the cir-
cumstances of the entire encounter,” including that “at the
time the seizure based on officer safety concerns occurred,
defendant had stopped, was sitting on the curb, and was
described as being fully cooperative.” (Emphasis in origi-
nal.)); Bailey, 307 Or App at 792 (noting that, though not
dispositive, “a defendant’s compliant behavior may play
a significant role in our determination of whether officer-
safety concerns justify a search”); Smith, 277 Or App at 309(holding that officer safety doctrine was inapplicable where
“there was no evidence that the target shooters were vio-
lent and heavily armed, and there was no other context to
suggest that the presence of one weapon foretold another”).
Additionally, given the totality of the circumstances in this
case, the presence of a “large foreign object,” which officer
Pierce was unable to identify when patting down defendant,
did not make a concern that defendant posed an immediate
threat of serious physical injury to the officers objectively
reasonable.
B. Discovery of the First Package of Methamphetamine
Having rejected the state’s argument that officer
safety concerns justified handcuffing defendant, we turn to
the state’s alternative argument that, “[e]ven if defendant
is correct that he was unlawfully arrested when the offi-
cers handcuffed him,” that “illegality did not lead to the
discovery of the first package of methamphetamine found
in defendant’s waistband.” In the state’s view, “defendant’s
consent led to that discovery, and defendant has not argued
on appeal that he did not validly consent to [a] patdown
search.” Thus, the state contends that, because “defendant
consented to the search that revealed the first package of
674 State v. Lora
methamphetamine,” that package was not discovered as a
result of the unlawful handcuffing of defendant and does
not need to be suppressed.
Defendant responds, in part, that the officers’ “dis-
covery of the nature of the item” in his waistband “was a
direct fruit of the unlawful seizure.” In defendant’s view,
defendant’s “consent to the earlier patdown provides no basis
to affirm the trial court’s denial of the motion to suppress.”
In considering the state’s argument on appeal, we
note that the state does not argue that both objects contain-
ing methamphetamine were admissible by virtue of defen-
dant’s consent to search; rather, the state only posits that
the first object—which was discovered prior to handcuffing
defendant—was admissible by virtue of defendant’s consent
to search. For that reason, we do not understand the state to
argue that defendant’s consent to the search continued even
after he was unlawfully handcuffed. Rather, we understand
the state’s argument to be that Pierce’s awareness of the
object in defendant’s waistband prior to unlawfully hand-
cuffing defendant renders the contents of that object admis-
sible evidence.
But that argument is untenable. Even though defen-
dant consented to the initial “patdown search” and defen-
dant does not challenge the validity of that consent, Pierce
had “no idea” what the object in defendant’s waistband
was until after defendant was unlawfully handcuffed. It
was only after the “more expansive patdown” of defendant,
which occurred after defendant was unlawfully handcuffed,
that officers discovered that the object in defendant’s waist-
band and the object in defendant’s sleeve contained meth-
amphetamine. And as noted, the state does not argue that
defendant’s consent to search was effective even after the
handcuffing of defendant. Thus, we reject the state’s alter-
native argument regarding admissibility of the first object
containing of methamphetamine.5
5
We note that, on appeal, the state also does not argue that the officers
would have inevitably discovered that the object in defendant’s waistband con-
tained methamphetamine absent handcuffing defendant. State v. Steele, 290 Or
App 675, 681, 414 P3d 458 (2018) (“The inevitable discovery doctrine permits the
state to purge the taint of illegally obtained evidence by proving, by a preponder-
ance of the evidence, that such evidence inevitably would have been discovered,
Cite as 312 Or App 666 (2021) 675
III. CONCLUSION
In light of the forgoing, we conclude that the trial
court erred when it denied defendant’s motion to suppress.
We reverse and remand.
Reversed and remanded.
absent the illegality, by proper and predictable police investigatory procedures.”
(Internal quotation marks and brackets omitted.)). Nor does the state argue that
Pierce had probable cause to arrest defendant at the time he handcuffed defen-
dant. See State v. Phillips, 312 Or App 239, 247 n 4, 491 P3d 99 (2021) (“[W]e
observe that the restriction imposed by handcuffing defendant typically converts
a stop into an arrest, requiring the officer to possess probable cause, not reason-
able suspicion, of the commission of a crime.”); State v. Foster, 233 Or App 135,
140-41, 225 P3d 830 (2010), aff’d, 350 Or 161, 252 P3d 292 (2011) (noting that, in
the context of justification to arrest a person, probable cause “ ‘means that there
is a substantial objective basis for believing that more likely than not an offense
has been committed and a person to be arrested has committed it’ ” (quoting ORS
131.005(11))).