State v. Bryars ( 2022 )

464
Argued and submitted November 8, 2021, reversed and remanded May 11, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
RODGER VALENTINO BRYARS,
Defendant-Appellant.
Umatilla County Circuit Court
18CR78002; A172869
510 P3d 261
Defendant appeals a judgment convicting him of second-degree criminal
trespass, ORS 164.245, and unlawful possession of methamphetamine, ORS
475.894. On appeal, defendant first assigns error to the trial court’s denial of
his motion to suppress evidence that a police officer obtained after arresting
defendant for criminal trespass, raising a variety of arguments. In his second
and third assignments of error, defendant contends that the trial court plainly
erred by accepting his waiver of his right to a jury trial and conducting a stip-
ulated facts trial, asserting that his waiver was not made intelligently, know-
ingly, and with a full understanding of his right to a jury trial, because the trial
court informed defendant during the waiver colloquy that the jury could find him
guilty by a nonunanimous verdict. Held: Given the disposition in State v. Austin,
316 Or App 56, 59, 501 P3d 1136 (2021) (holding that “it is not obvious or beyond
dispute that the federal constitutional right to be convicted only by unanimous
jury verdict is the type of ‘relevant circumstance’ that a defendant must know for
his waiver of the right to a jury trial to be knowing and intelligent”), defendant’s
second and third assignments of error are rejected without extended discussion.
The trial court erred in denying his motion to suppress, because the officer seized
defendant without subjective reasonable suspicion. That disposition obviates the
need to address defendant’s remaining arguments in support of his first assign-
ment of error.
Reversed and remanded.
Jon S. Lieuallen, Judge.
Joel C. Duran, 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.
Michael A. Casper, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Christopher A. Perdue.
Cite as 319 Or App 464 (2022) 465
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Reversed and remanded.
466 State v. Bryars
ORTEGA, P. J.
Defendant appeals a judgment convicting him of
second-degree criminal trespass, ORS 164.245, and unlawful
possession of methamphetamine, ORS 475.894. On appeal,
defendant first assigns error to the trial court’s denial of his
motion to suppress evidence that a police officer obtained
after arresting defendant for criminal trespass, raising a
variety of arguments. In his second and third assignments
of error, defendant contends that the trial court plainly
erred by accepting his waiver of his right to a jury trial and
conducting a stipulated facts trial, asserting that his waiver
was not made intelligently, knowingly, and with a full under-
standing of his right to a jury trial because the trial court
informed defendant during the waiver colloquy that the jury
could find him guilty by a nonunanimous verdict.
We reject defendant’s second and third assignments
of error without extended discussion given our disposition
in State v. Austin, 316 Or App 56, 59, 501 P3d 1136 (2021)
(holding that “it is not obvious or beyond dispute that the
federal constitutional right to be convicted only by unani-
mous jury verdict is the type of ‘relevant circumstance’ that
a defendant must know for his waiver of the right to a jury
trial to be knowing and intelligent”). However, we agree with
defendant that the trial court erred in denying his motion
to suppress because the officer seized defendant without
subjective reasonable suspicion; we therefore reverse and
remand on that basis. That disposition obviates the need to
address defendant’s remaining arguments in support of his
first assignment of error.
We review the denial of a motion to suppress for
legal error and are bound by the trial court’s factual find-
ings if there is any constitutionally sufficient evidence to
support them. State v. Escudero, 311 Or App 170, 171, 489
P3d 569 (2021).
While out on patrol, Sergeant Youncs observed defen-
dant at 4:44 a.m., while it was still dark, seated between
two air conditioning units outside a commercial building in
Pendleton. The air conditioning units were on a sidewalk
that abutted the employee parking lot and employee door
entrance to the rear of the building; a sign just north of the
Cite as 319 Or App 464 (2022) 467
air conditioners in the lot read “Employee Parking Only.”
Although Youncs did not observe it that night, on the inside
of the employee-entrance door about 25 to 30 feet from
where defendant was seated was a “NO TRESPASSING”
sign warning that “[i]ndividuals who are in or upon these
premises after normal business hours without authorization
may be arrested for criminal trespass[.]” Youncs testified
that he did not normally see people other than employees
in that area, particularly so early, so he decided to make
contact with defendant. He parked his patrol car, without
activating his lights, about 15 feet away from where defen-
dant was seated.
As Youncs rounded the side of the air conditioning
unit to approach defendant, he shined his flashlight where
defendant was sitting, partially concealed between the two
units. Youncs noticed that defendant appeared to be ner-
vous, that a computer was plugged into an outlet near him,
and that he was placing items into a backpack. Youncs intro-
duced himself and asked defendant his name, which defen-
dant provided. Youncs then asked defendant what he was
doing, and he responded that he was charging his computer
and waiting for the next bus to Portland. Youncs found that
explanation odd given how far away the bus stop was. Youncs
asked if the items defendant was placing into his backpack
were drug-related. Defendant replied that they were “just
items.” After Youncs observed a black sunglasses case next
to defendant, he told defendant that he knew it was com-
mon for people to place drug-related items in sunglass cases
and asked him if there were drugs inside. Defendant replied
that there were just items in that as well. Youncs then asked
if he could search the case, but defendant declined.
At that point, Youncs decided to contact dispatch
and inquire as to whether the police department had a tres-
pass agreement with the business, which enlists the police
to keep a property secure from trespassers. Once he con-
firmed that there was such a trespass agreement, he advised
defendant that he was trespassing and asked him to stand
up. Defendant did not comply with that request, so Youncs
reached down and grabbed defendant’s right arm, “and
[defendant] put his left hand down between his legs.” Youncs
believed that defendant was reaching down for something
468 State v. Bryars
with his left arm, so Youncs pushed defendant down onto his
stomach and placed him in handcuffs. Youncs testified that,
at that point, defendant was not free to leave. As he pre-
pared to help defendant stand up, Youncs observed a glass
pipe with white residue on the ground where defendant had
been seated. Based on his training and experience, Youncs
believed that the pipe was likely for methamphetamine
use. Before reading defendant his Miranda rights, Youncs
asked defendant if the pipe belonged to him, and defendant
affirmed that it did. Youncs subsequently searched defen-
dant and located methamphetamine.
Before trial, defendant filed a motion to suppress
arguing, among other things, that defendant’s seizure before
his arrest was unlawful because Youncs did not have rea-
sonable suspicion to believe that he had committed criminal
trespass or possession of a controlled substance at the time
of the seizure, nor did Youncs have probable cause at the
time of his arrest. At the suppression hearing, when asked
to identify the point at which he “formulate[d] reasonable
suspicion that [defendant] was trespassing,” Youncs testified
that after he verified there was a valid trespass agreement,
he then developed reasonable suspicion that defendant was
trespassing based on the facts that the property was “not
frequented by people during those hours” and because he
did not usually see people next to the air conditioning units
charging their computers. Youncs did not testify that he had
reasonable suspicion that defendant possessed drugs when
he asked the drug-related questions, including when he
sought defendant’s consent to search. The trial court denied
the motion to suppress, implicitly finding that Youncs had
both reasonable suspicion and probable cause that defen-
dant was trespassing.
On appeal, defendant raises several challenges to
the trial court’s denial of his motion to suppress. As per-
tinent here, he contends that the officer seized him when
“he stood over defendant with his flashlight on, blocked the
one direction that defendant could have walked away, and
repeatedly accused [him] of drug possession.” Further, defen-
dant contends, because the officer’s testimony established
that he did not formulate subjective reasonable suspicion
Cite as 319 Or App 464 (2022) 469
of criminal trespass until after the point when he called
dispatch to verify the trespass agreement, the seizure was
not supported by reasonable suspicion and was unlawful.
Alternatively, defendant argues that, even if Youncs had
reasonable suspicion to stop him to investigate whether he
was trespassing, his accusations of drug possession and his
request to search defendant’s belongings for drugs exceeded
the subject matter and durational limitations for that sei-
zure under Article I, section 9, without any independent
constitutional justification. See State v. Arreola-Botello, 365
Or 695, 712, 451 P3d 939 (2019) (“[W]e conclude that, for
purposes of Article I, section 9, all investigative activities,
including investigative inquiries, conducted during a traf-
fic stop are part of an ongoing seizure and are subject to
both subject-matter and durational limitations.”). Finally,
defendant asserts that, even if the questions Youncs asked
about drug possession and his request to search constituted
mere conversation, his subjective belief that defendant was
trespassing was not objectively reasonable and was insuf-
ficient to support probable cause for an arrest. Defendant
maintains that the error in denying his motion to suppress
was not harmless and that all of the evidence that derived
from that unlawful seizure, including the evidence of meth-
amphetamine possession and defendant’s statements, must
be suppressed.
The state responds that the court correctly denied
defendant’s motion to suppress because the arrest was law-
ful. In the state’s view, Youncs’s conduct before the arrest did
not amount to a seizure of defendant but, rather, constituted
mere conversation that does not implicate the protections of
Article I, section 9. The state further argues, that if defen-
dant was seized, the seizure was supported by reasonable
suspicion of criminal trespass given the time of the morn-
ing, defendant’s action in charging his laptop, his location
outside of an employee parking lot and entrance, and the
“no trespassing” notice 25 to 30 feet from where defendant
was sitting. Responding to defendant’s argument that the
officer’s own testimony showed that he did not form subjec-
tive reasonable suspicion of criminal trespass until after
that point, the state contends that it is “the facts establish-
ing that he subjectively believed he had ‘lawful authority’
470 State v. Bryars
to seize a suspect” that controls the legal determination of
reasonable suspicion, “even if [Youncs] had openly admitted
that he lacked reasonable suspicion.” Further, the state
asserts that Youncs had probable cause to arrest defen-
dant after confirming with dispatch the trespass agree-
ment authorizing Pendleton police to act as business agents
in enforcing the trespass law. Lastly, although it does not
defend the seizure on the basis that Youncs had reasonable
suspicion of drug possession, the state argues that defen-
dant did not preserve the argument that the seizure was
unlawful because Youncs improperly extended the scope of
the stop by asking the drug-related questions.
We begin by addressing whether defendant was
seized. Under Article I, section 9, of the Oregon Constitution,
only some police-citizen encounters implicate the Article I,
section 9, protections against unreasonable “seizures.” State
v. Backstrand, 354 Or 392, 398-99, 313 P3d 1084 (2013). “At
one end of the continuum are mere encounters for which no
justification is required,” and at the other end are arrests,
“which involve protracted custodial restraint and require
probable cause.” Id. at 399. In between are “temporary deten-
tions for investigatory purposes,” or “stops,” which require
“reasonable suspicion.” Unlike mere encounters, stops and
arrests implicate Article I, section 9, protections. Id.An encounter rises to a seizure when (1) a law
enforcement officer intentionally and significantly interferes
with an individual’s liberty or freedom of movement; or (2) a
reasonable person, under the totality of the circumstances,
would believe that his or her liberty or freedom of movement
has been significantly restricted. State v. Ashbaugh, 349 Or
297, 316, 244 P3d 360 (2010). “The question for the court
is whether the circumstances as a whole transformed the
encounter into a seizure, even if the circumstances, individ-
ually would not create a seizure.” State v. Newton, 286 Or
App 274, 280, 398 P3d 390 (2017) (internal quotation marks
omitted). Ultimately, “[w]hat distinguishes a seizure (either
a stop or an arrest) from a constitutionally insignificant
police-citizen encounter is the imposition, either by physical
force or through some show of authority, of some restraint
on the individual’s liberty.” State v. Paskar, 271 Or App
Cite as 319 Or App 464 (2022) 471
826, 833, 352 P3d 1279 (2015) (internal quotation marks
omitted).
For an encounter to constitute a seizure, “some-
thing more than just asking a question, requesting infor-
mation, or seeking an individual’s cooperation is required[.]”
Backstrand, 354 Or at 403. However, it “is possible to restrict
a person’s liberty and freedom of movement by purely verbal
means[.]” Ashbaugh, 349 Or at 317. A verbal encounter rises
to the level of a seizure “when the content of the questions,
the manner of asking them, or other actions that police
take (along with the circumstances in which they take
them) would convey to a reasonable person that the police
are exercising their authority to coercively detain the citi-
zen[.]” Backstrand, 354 Or at 412. Ultimately, “something
more” can be the content or manner of questioning or the
accompanying physical acts by the officer, if those added
factors would reasonably be construed as a show of author-
ity requiring compliance with the officer’s request. Id. at
403.
We conclude that, under the totality of the circum-
stances, defendant was seized at least by the time that
Youncs asked defendant for consent to search his sunglasses
case.
We find State v. Reyes-Herrera, 369 Or 54, 500 P3d 1
(2021), to be particularly instructive. In that case, the officer
drove his car by an alleyway one afternoon and observed the
defendant walking away from another man. Id. at 56. The
officer believed the two had engaged in a drug transaction,
so he drove his patrol car past the defendant in the alleyway
and, without activating his lights, parked the car. Id. The
officer, who was in uniform, got out of the car, “took a couple
steps toward [the defendant], waved and said ‘hi.’ ” Id. After
telling the defendant that he was not in trouble and was
free to leave, the officer told the defendant that he had just
observed him and the other guy “face to face” and that it had
looked like the “ ‘guy was counting money.’ ” Id. The officer
then asked the defendant, “ ‘Like did you buy drugs from
this guy[?],’ ” which the defendant denied. Id. The officer
then asked the defendant for consent to search, the defen-
dant agreed, and he located drugs on him. Id. at 57.
472 State v. Bryars
On review, the Supreme Court concluded that the
officer’s statements and questioning of defendant, viewed
in the totality of the circumstances, constituted a sufficient
show of authority to transform the encounter into a seizure.
Id. at 67-68. The court first concluded that the officer “con-
veyed that [he] suspected [the] defendant of criminal activity”
by confronting him with information that he had observed
the defendant in what he thought was a drug transaction
with the other man. Id. at 66. Therefore, the court held, the
officer’s questions to the defendant “indicat[ed] that [the]
defendant himself was the subject of a criminal investiga-
tion,” which is what distinguished the case from others in
which it had held that the officers’ statements and questions
to the defendants were not sufficiently coercive to constitute
a seizure. Id. Further, the court concluded that the officer’s
questions about the defendant’s purported involvement in a
drug deal that had just happened while the other man was
walking away, “carried an implication that defendant could
be in trouble and must remain where he was.” Id. The court
found that “[t]hat implication was compounded” when, after
the defendant twice denied being in possession of drugs,
the officer asked the defendant for consent to search him.
Id. at 66-67. The court rejected the state’s argument that an
officer does not seize a defendant by asking a question about
that person’s potential criminal involvement, so long as the
question does not rise to an “accusation” but only to “gain an
understanding of the present circumstances.” Id. at 59. The
court concluded:
“Acting on no more than a hunch, [the officer] approached
[the] defendant and subjected him to questioning that, we
conclude, would cause reasonable people to believe that they
must remain where they are and respond. Whether or not
the questions that [the officer] asked [the] defendant can be
characterized as accusing him of committing a crime, the
totality of the circumstances was such that reasonable peo-
ple in defendant’s position would have believed that their
liberty was restricted.”
Id. at 67-68.
Here, Youncs observed defendant concealed between
two air conditioning units next to an employee parking lot and
Cite as 319 Or App 464 (2022) 473
entrance on the rear-side of a business in the early morning
hours when the business was closed. He parked his patrol
car about 15 feet away from defendant in that parking lot
without activating his lights. After Youncs approached
defendant, he shined his flashlight in the enclosed space
where defendant was seated and asked him what he was
doing there. Defendant explained that he was waiting for
the bus, which Youncs found odd. Youncs then asked defen-
dant if the items defendant was placing in his backpack
were drug-related, which he denied. Youncs then pointed out
the sunglasses case next to defendant and told him that he
knew it was common for people to place drug-related items
in sunglass cases and asked if there were drugs inside,
which defendant denied. Youncs then asked for his consent
to search it.
Like the questions in Reyes-Herrera, Youncs’s drug-
related questions to defendant and request for consent to
search the sunglasses case, viewed in the totality of the
circumstances, would have communicated to a reasonable
person that the person was the subject of a criminal inves-
tigation for drug possession and was not free to walk away
from the interaction. Although Youncs did not tell defen-
dant that he had just observed him participate in criminal
activity moments before like in Reyes-Herrera, Youncs con-
fronted defendant about whether he was presently placing
drug-related items in his backpack. Further, Youncs’s per-
sistent questioning about whether he currently possessed
drugs despite defendant’s explanations and denials, carried
the same implication as the questions in Reyes-Herrera, and
would have conveyed to a reasonable person that he disbe-
lieved defendant and, believing that defendant was, in fact,
in possession of drugs, was currently investigating him for
that purported criminal activity. See State v. Charles, 263
Or App 578, 588, 331 P3d 1012 (2014) (explaining that “the
officer did not accept [the defendant’s wife’s] explanation and
asked [the] defendant, who was seated inside the house, to
come outside and talk. At that point, a reasonable person in
[the] defendant’s shoes would have concluded that he or she
was the subject of a criminal investigation.”). That implica-
tion, like in Reyes-Herrera, was compounded when Youncs
asked defendant for his consent to search.
474 State v. Bryars
Further, Youncs’ drug-related questioning, viewed
in light of the totality of circumstances, including the time
of night, the location of the encounter, Youncs’s positioning
in relation to defendant, and his use of the flashlight, added
to the coercive nature of the encounter. Youncs approached
defendant at a time when and place where no one else was
around, which is a relevant consideration in determining
how a reasonable person would understand the level of
coerciveness of the encounter. See State v. Prouty, 312 Or
App 495, 502, 492 P3d 734 (2021) (noting that, “[a]lthough
our analytical focus is primarily on the troopers’ conduct,
the location and timing of the encounter provide context
in determining the coerciveness of the conduct at issue”).
Further, Youncs was positioned so that he was standing
over defendant and in close enough proximity that he was
able to grab defendant’s arm later in the encounter, and he
stood in front of what would have been defendant’s only exit
route between the two air conditioners while illuminating
his flashlight in the small space between the units.
We acknowledge that none of those circumstances
viewed in isolation would necessarily be sufficiently coer-
cive for purposes of Article I, section 9, which is “not [con-
cerned] with limiting contacts between police and citi-
zens.” Backstrand, 354 Or at 400 (internal quotation marks
omitted). Indeed, “law enforcement 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 cer-
tain level of suspicion in justification if a particular encoun-
ter proves fruitful.” Id. Nonetheless, our task is to view the
circumstances in their totality and not individually, and
those circumstances, although potentially innocuous on
different facts, take on particular significance here given
the content, nature, and manner of Youncs’s drug-related
questioning, which conveyed that defendant was the subject
of an ongoing criminal investigation and not free to leave.
That is especially so given that the encounter occurred in
the early morning hours when no one else was around and
given Youncs’s positioning while conveying to defendant by
his questioning that he believed defendant to be engaged in
criminal activity. See Reyes-Herrera, 369 Or at 58 (“When
Cite as 319 Or App 464 (2022) 475
an officer takes physical action that could be construed as
threatening or coercive or takes a physical position that
would suggest to a person that he or she is surrounded, the
officer seizes the person.” (Internal quotation marks omit-
ted.)); State v. Washington, 284 Or App 454, 468, 392 P3d
348 (2017) (observing that, “[i]f an officer uses a flashlight
to block a person’s view, and thereby hinders his or her abil-
ity to leave an encounter, it could contribute to a conclusion
that the officer engaged in a show of authority because a
reasonable person might feel that he or she is not free to
terminate the encounter”); Newton, 286 Or App at 283 (not-
ing that “the time of night is one of the circumstances that
affects whether a person in [the] defendant’s position would
reasonably believe that the officer is intentionally restrain-
ing the citizen’s liberty or freedom of movement * * * in a
way that exceeds the bounds of ordinary social encoun-
ters between private citizens” (internal quotation marks
and brackets omitted)). Those facts viewed in their total-
ity were sufficiently coercive for purposes of Article I, sec-
tion 9, because a reasonable person would not feel free to
decline to answer Youncs’s questions and get up and walk
away from him. Therefore, we conclude that, once Youncs
asked defendant for consent to search, defendant was seized
with the meaning of Article I, section 9. See State v. Warner,
284 Or 147, 165, 585 P2d 681 (1978) (concluding that the
officers had seized the defendant where they informed him
that they were investigating an armed robbery, told him to
put his identification on the table, and told him that they
would be on their way once they had “clear[ed] this matter
up”).
Because we conclude that defendant was seized under
Article I, section 9, we must now determine whether Youncs
had reasonable suspicion to believe that defendant was com-
mitting a crime. An officer has reasonable suspicion when
the officer subjectively believes that the person has commit-
ted a crime and that belief is objectively reasonable in light
of the totality of the circumstances. State v. Ehly, 317 Or 66,
80, 854 P2d 421 (1993). The state bears the burden to estab-
lish that the officer subjectively believed that the defendant
has committed a crime and that the officer’s belief is objec-
tively reasonable. Prouty, 312 Or App at 507.
476 State v. Bryars
Here, Youncs testified, that once he verified that
there was a valid trespass agreement, which was after he
stopped defendant, he then developed reasonable suspicion
that defendant was trespassing. In light of his unambiguous
testimony, the evidence is legally insufficient to support an
inference that Youncs held a subjective belief that defendant
was trespassing until he verified the trespass agreement
with dispatch. See State v. Kentopp, 251 Or App 527, 532, 284
P3d 564 (2012) (the “reasonable suspicion standard has a
subjective component—that is, the officer must subjectively
suspect that a person has committed a crime”). We further
reject the state’s argument that the subjective component
of the reasonable suspicion standard is met based on the
facts alone and regardless of the officer’s testimony that he
did not in fact have reasonable suspicion at the time of the
seizure. See State v. Jimenez, 357 Or 417, 430-31, 353 P3d
1227 (2015) (concluding that the trooper did not have a sub-
jective officer-safety concern when he asked the defendant
if he had any weapons because, “[a]lthough the facts known
to the trooper at the time that he inquired about weapons
might have given rise to reasonable, circumstance-specific
safety concerns, the trooper did not so testify”). Nothing in
the record establishes that Youncs had subjective reason-
able suspicion that defendant had committed criminal tres-
pass at the time of the seizure and the seizure was therefore
unlawful.
That conclusion obviates the need for us to address
defendant’s alternative argument that Youncs’s drug-related
questioning violated the subject-matter limitations on law-
ful seizures.
Accordingly, the facts known to Youncs at the time
that he stopped defendant were not sufficient to support
subjective reasonable suspicion to believe that defendant
had committed a trespass, and the trial court erred in deny-
ing defendant’s motion to suppress. All of the evidence that
derived from that unlawful seizure, including the evidence
of methamphetamine possession and defendant’s state-
ments, must be suppressed.
Reversed and remanded.