State v. Cage ( 2023 )

430
Argued and submitted on September 14, 2022, reversed and remanded
March 8, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
MATTHEW ANTONIO CAGE,
Defendant-Appellant.
Coos County Circuit Court
16CR31619; A175268
526 P3d 785
Defendant challenges his convictions for menacing, ORS 163.190; unlawful
use of a weapon, ORS 166.220; and felon in possession of a firearm, ORS 166.270.
He assigns error to the trial court’s denial of his motion to suppress evidence
derived from a stop that he asserts was unlawful. Defendant argues, among
other things, that the 9-1-1 call that formed the basis for the officer’s reasonable
suspicion was not sufficiently reliable. The state contends that the officer had
reasonable suspicion to stop defendant based on the 9-1-1 report and the officer’s
observations at the scene. The state also argues that, even absent reasonable
suspicion, the officer could have lawfully stopped defendant as a material witness
under State v. Fair, 353 Or 588, 302 P3d 417 (2013). Held: The trial court erred.
The 9-1-1 report was not sufficiently reliable because the report was made sec-
ondhand, and the officer did not sufficiently corroborate the report. In addition,
the material-witness exception did not provide a constitutional basis for the stop
because the officers did not have an objectively reasonable basis to believe defen-
dant was a material witness to a crime.
Reversed and remanded.
Martin E. Stone, Judge.
David O. Ferry, 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.
Jeff J. Payne, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Reversed and remanded.
Cite as 324 Or App 430 (2023) 431
EGAN, J.
In this criminal case, defendant appeals his convic-
tions of menacing, ORS 163.190 (Count 1); unlawful use of a
weapon with a firearm (UUW), ORS 166.220, ORS 161.610
(Count 2); and felon in possession of a firearm (FIP), ORS
166.270 (Count 3). Defendant assigns error to the trial
court’s denial of his motion to suppress evidence derived
from a stop that he asserts was unlawful.1 The trial court
denied defendant’s motion to suppress, concluding that rea-
sonable suspicion to stop defendant existed based on a 9-1-1
report, and that, even absent reasonable suspicion, officers
could have lawfully stopped defendant as a material wit-
ness under State v. Fair, 353 Or 588, 302 P3d 417 (2013).
We conclude that the trial court erred: Officers did not have
reasonable suspicion to stop defendant and, on the facts of
this case, could not lawfully stop defendant as a material
witness. Therefore, the trial court erred by denying defen-
dant’s motion to suppress. We reverse and remand.
We review a trial court’s denial of a motion to sup-
press for legal error, and we are “bound by the trial court’s
factual findings if there is any constitutionally sufficient
evidence in the record to support” them. State v. Maciel-
Figueroa, 361 Or 163, 165-66, 389 P3d 1121 (2017) (citing
State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993)). Consistent
with that standard, we state the following facts from the
record of the suppression hearing.
At around 1:00 a.m. on May 26, 2016, an employee
at the Motel 6 in Coos Bay called 9-1-1 and reported a dis-
pute near the vending machine area of the motel where “one
subject involved had a firearm.” A motel guest had observed
the dispute and reported it to the employee, who then called
9-1-1. Within five minutes of receiving that report, three
officers—Krebs, Volin, and Merritt—arrived at the motel.
1
In a supplemental pro se brief, defendant advances six additional assign-
ments of error. Our disposition obviates the need to address all of them except
his argument that the court erred in failing to acquit him of some unspecified
offense. We reject that argument because it was not preserved in the trial court
and does not involve “plain error.” See State v. Brown, 310 Or 347, 355, 800 P2d
259 (1990) (an error is apparent on the face of the record if the legal point is
obvious and not reasonably in dispute, and if the reviewing court need not look
beyond the record or choose from competing inferences to find the error).
432 State v. Cage
They walked into the parking lot and looked inside the vend-
ing machine room, where they found no people or signs of a
dispute. Merritt turned and noticed a vehicle parked in front
of the building where the vending machines were located.
He saw defendant in the driver’s seat and a female passen-
ger, H, in the front passenger seat of the car. Merritt saw
other vehicles parked in front of the building and through-
out the parking lot, but he did not see any other people in
the area. Merritt testified that, when H noticed him and
the other officers, she immediately began kissing defendant.
Merritt walked to the passenger side door and knocked on
the car window, but neither H nor defendant acknowledged
him.
Once Merritt was able to get H’s attention, he asked
H to step out of the car. As she stepped out of the car, Merritt
noticed that she had mascara “running down her face,” and
he “noted that she had been crying.” Merritt did not observe
any injuries on H, and when questioned about her crying,
she told Merritt that her grandfather had recently died.
Upon additional questioning, H told Merritt that she did not
know anything about a dispute or a gun.
When H initially got out of the car, Merritt had
observed defendant in the driver’s seat “with his hands
wrapped around a sweatshirt or something like that.” While
Merritt was questioning H, he noticed that Krebs had his
back turned to the car and that defendant “was focused
on Officer Krebs.” Due to concerns that defendant had a
weapon, Merritt told Krebs to “get [defendant] out of the
vehicle.” Before exiting the car, defendant placed the “sweat-
shirt” onto the passenger seat. At the time of defendant’s
stop, Volin was not with the other officers, because he had
gone to the second floor of the motel to look for the witness.
After defendant exited the vehicle, Krebs asked
him for identification, which defendant provided. Dispatch
informed Krebs that defendant had a warrant for his arrest,
and Krebs took him into custody. After defendant was placed
in custody, Volin returned from the second floor of the motel
and told Merritt that he saw a gun in the passenger seat of
defendant’s car. Merritt found a handgun on the passenger
seat and removed it from the car.
Cite as 324 Or App 430 (2023) 433
Following this encounter, defendant was charged
with menacing, UUW, FIP, obliteration or change of iden-
tification number on a firearm, and pointing a firearm at
another. Before trial, defendant moved to suppress all evi-
dence derived from the stop. Defendant argued that the
officers stopped him without reasonable suspicion that he
had committed a crime, violating his rights under Article I,
section 9, of the Oregon Constitution and the Fourth
Amendment to the United States Constitution.
At the suppression hearing, Merritt, the sole wit-
ness, testified about the circumstances that led him to
believe that he had reasonable suspicion to stop defendant.
The trial court found his testimony to be credible. Merritt
testified that his notes from the report that he received said
that “the RP front desk far building, the vending machines
are in dispute in the parking lot. Guest says one subject
involved had a firearm.” During his testimony, Merritt
did not specify what crime he believed defendant commit-
ted, but he testified that he had “reasonable suspicion that
[defendant and H] were involved in the dispute that [the
officers] were called to.” When the prosecutor asked Merritt
whether he believed defendant “had knowledge of what hap-
pened,” Merritt testified, “[w]ell, of course. I believed he was
involved.” Merritt also testified that officers had identified
the guest who reported the dispute to the Motel 6 employee
after defendant was stopped. Officers did not know the
guest’s identity at the time they stopped defendant, thus
that information is not applicable to our reasonable suspi-
cion analysis, but the guest was named throughout Merritt’s
testimony at the suppression hearing.
The trial court denied defendant’s motion to sup-
press. The trial court concluded that Krebs stopped defen-
dant when he asked defendant to step out of his car.2 The
trial court determined that the officers had reasonable sus-
picion to stop defendant, because (1) Merritt testified that
he suspected that defendant “had engaged in some form of
criminal activity,” and (2) that belief was reasonable, “given
all the circumstances,” which included the “report [from a
motel employee] of a dispute and brandishing a firearm that
2
On appeal, the parties do not dispute that conclusion.
434 State v. Cage
occurred close to the vending machine location at Motel 6.”
The trial court found that the officers had received the call
early in the morning, arrived quickly to the area, and found
two people in a car parked near the vending machines.
Additionally, Merritt did not see any other people in the
area, had observed that H had been crying, believed that H
and defendant were “evasive in their answers,” and noticed
that defendant had something hidden in his hands.
The trial court concluded that the 9-1-1 report was
sufficiently reliable to support reasonable suspicion, because
it came “from a motel employee, who passe[d] on something
from an identified individual,” and the officers “can certainly
corroborate that [report] by contacting the employee of the
motel that day.” The trial court determined that Merritt cor-
roborated the report based on his testimony about what he
had observed at the scene. Furthermore, the trial court held
that the officers had authority to stop defendant as a mate-
rial witness under Fair, 353 Or 588. The court concluded
that it was “reasonable for the officers to believe that these
individuals had some information that would be critical
to their investigation” based on the officers’ belief that an
offense had been committed involving a firearm and defen-
dant’s location next to the vending machine area.
Accordingly, the trial court denied the suppression
motion. Ultimately, a jury convicted defendant of menacing,
UUW, and FIP.
Defendant appeals the denial of his motion to sup-
press, arguing that the officers lacked reasonable suspicion
to seize him. First, defendant argues that the 9-1-1 report
was insufficient—on its own—to support reasonable suspi-
cion that defendant committed a crime, because it lacks suf-
ficient “indicia of reliability.” Second, defendant argues that,
even if the 9-1-1 report was sufficiently reliable, the evidence
did not provide specific and articulable reasons to support a
reasonable suspicion that defendant committed any crime.
The state argues that, based on the totality of the circum-
stances, officers had reasonable suspicion that defendant
engaged in UUW and menacing, so defendant was lawfully
stopped. In the alternative, the state argues that the officers
had authority to stop defendant as a material witness.
Cite as 324 Or App 430 (2023) 435
The critical question in this case is whether offi-
cers had reasonable suspicion to stop defendant. An offi-
cer has authority to stop a person if the officer “reasonably
suspect[s]—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.” Maciel-
Figueroa, 361 Or at 182. For a stop to be constitutional 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 circum-
stances existing at the time of the stop.”
Id. That rule has both subjective and objective components,
such that the officer must subjectively believe that the
person committed a specific crime, and “the basis for that
belief—the specific facts, articulated by the officer, that led
him or her to believe that the defendant may have commit-
ted a crime,” must also be objectively reasonable based on
the totality of the circumstances. Id. at 182-83.
“It is the state’s burden to establish that an offi-
cer had reasonable suspicion to initiate a stop.” State v.
Rodriguez, 320 Or App 1, 8, 511 P3d 424 (2022) (citing State
v. Westcott, 282 Or App 614, 618, 385 P3d 1268, rev den,
361 Or 486 (2017)). “Evidence acquired after a stop can-
not be used to establish or negate reasonable suspicion for
the stop.” State v. Ellis, 252 Or App 382, 389, 287 P3d 1215
(2012) (emphasis in original).
A citizen’s report may establish reasonable suspicion
that criminal activity occurred, but the report must contain
some “indicia of reliability” if an officer’s reasonable suspi-
cion is based solely on the report. State v. Villegas-Varela,
132 Or App 112, 115, 887 P2d 809 (1994). Three factors help
determine the reliability of an informant’s report. Id. The
factors “are merely intended to serve as an aid in evaluating
the reliability of such a report” and are not determinative
as to the report’s reliability. State v. Mitchele, 240 Or App
436 State v. Cage
86, 92-93, 251 P3d 760 (2010) (citing State v. Killion, 229 Or
App, 347, 356, 211 P3d 367, rev den, 347 Or 349 (2009)).
The first factor is “whether the informant is
exposed to possible criminal and civil prosecution if the
report is false,” which is satisfied when informants provide
their name to law enforcement or provide the information
in person. Villegas-Varela, 132 Or App at 115. The sec-
ond factor is “whether the report is based on the personal
observations of the informant.” Id. Officers may infer that
the report is based on personal observations if the informa-
tion in the report “contains sufficient detail” to show that
it was not “fabricated,” and “the report is of the sort which
in common experience may be recognized as having been
obtained in a reliable way.” Id. (internal citation and quo-
tation marks omitted). The last factor is “whether the offi-
cer’s own observations corroborated the informant’s infor-
mation.” Id. That factor is satisfied if the officer “observe[s]
the illegal activity” or “find[s] the person, the vehicle, and
the location substantially [as] described by the informant.”
Id.Here, as it relates to the first factor, “whether the
informant is exposed to possible criminal and civil prosecu-
tion if the report is false,” Villegas-Varela, 132 Or App at 115,
Merritt testified that he believed the caller was a Motel 6
employee, but the caller did not provide a name and was
not identified before the stop. Defendant argues that the
first factor is not satisfied, because Merritt did not know the
reporting party’s identity before the stop, and the record did
not identify the reporter’s specific job or relationship to the
motel. In response, the state argues that the reporting party
was exposed to liability, because the reporter was readily
identifiable as a Motel 6 employee and the police arrived
within five minutes of the call. The state also argues that
the informant was not required to provide a name in order
to meet the first factor. See State v. Shumway, 124 Or App
131, 135, 861 P2d 384 (1993) (determining that the first fac-
tor was met, even though the informant did not provide his
name to law enforcement, because “there [was] no indication
that he was unwilling to do that,” and the informant spoke
to the officer in person).
Cite as 324 Or App 430 (2023) 437
Our analysis of the first factor is informed by State
v. Hunt, 265 Or App 231, 335 P3d 288 (2014). There, the
defendant argued that an informant’s report was insuf-
ficiently reliable to support reasonable suspicion when a
motel’s front desk clerk reported to the police three separate
calls from other guests regarding activity in a specific room
at the motel. Id. at 232-33. The defendant argued that the
first factor was not met, because the motel employee acted
“merely as a conduit” for the guests’ complaints. Id. at 236.
We rejected that argument, concluding that the first factor
was satisfied, because the employee identified himself to
the dispatcher and identified himself to officers when they
arrived at the motel to investigate. Id.In this case, we conclude that the first factor is neu-
tral. Unlike in Hunt, where the informant identified himself
and talked to officers in person upon arrival, the informant
here did not provide his or her name to law enforcement
when making the report, did not greet the officers upon
arrival, and the officers did not identify the reporting party
before stopping defendant. See id.; see also State v. Simpson,
245 Or App 152, 157, 261 P3d 90 (2011) (holding that, when
an informant did not identify herself or make the report in
person, and the officer stopped the defendant before know-
ing whether the informant remained at the scene, the first
factor was not satisfied). Merritt testified that he believed
the report came from a motel employee, but he did not know
the person’s identity before stopping defendant. However, the
police arrived right away, and it was reasonable for Merritt
to assume that the employee was readily identifiable, thus
supporting reliability. Even assuming, as the state contends,
that the first factor is met, under the circumstances, it does
not weigh heavily in our analysis.
As to the second factor, “whether the report is based
on the personal observations of the informant,” Villegas-
Varela, 132 Or App at 115, defendant argues that it was not
satisfied, because the motel employee reported the informa-
tion secondhand from a motel guest. We understand the state
to rely on Hunt to argue that that factor was met, asserting
that a motel employee’s secondhand report—received from a
guest—can be sufficiently reliable even if the employee did
not observe the reported activity.
438 State v. Cage
In Hunt, a motel employee reported secondhand
information to police that the employee had received from
several guests at the motel. 265 Or App at 232-33. We con-
cluded that the second factor was not satisfied “in the strict-
est sense” but that, in light of the circumstances, it did “not
undermine the reliability of the report.” Id. at 237 (internal
citation and quotation marks omitted). We reasoned that the
amount of detail included in the report demonstrated that
the report was likely not fabricated. Id at 238. Additionally,
we noted that the relationship between a guest and front
desk clerk “suggests that the front desk clerk would believe
the guests’ complaint and that the information had been
reliably obtained.” Id.In Hunt, the officers had a description of the par-
ties, a description of the car involved, and multiple reports
about the parties’ conduct such that the report was suffi-
ciently reliable even though it was made secondhand. Id. In
this case, the officers only knew that a dispute involving a
firearm occurred near the vending machines of the motel.
Unlike in Hunt, in this case, the motel employee made a
report secondhand from information that the employee had
received from one guest, the employee did not personally
verify the report, and the report did not contain any signif-
icant detail. The details in this case are not “sufficient to
show that neither the front desk clerk nor the guests had
likely fabricated the report.” Id. Thus, the second factor was
not satisfied here.
Lastly, we turn to the third factor—“whether the
officer’s own observations corroborated the informant’s
information.” Villegas-Varela, 132 Or App at 115. According
to Merritt’s testimony, the information to be corroborated
from the 9-1-1 report was “the RP front desk far building,
the vending machines are in dispute in the parking lot.
Guest says one subject involved had a firearm.”
Defendant argues that the report did not provide
enough details for the responding officers to corroborate,
and that Merritt’s actual observations did not corroborate
the report, because Merritt did not witness or verify any dis-
pute near the vending machines or any dispute that involved
a firearm. Specifically, defendant argues that defendant
Cite as 324 Or App 430 (2023) 439
and H’s location in a vehicle nearby did not corroborate any
detail that the caller reported. Furthermore, defendant
argues that H’s crying did not corroborate a dispute involv-
ing a firearm, because H explained the reason that she was
crying, and she had no signs of injury. The state responds
that Merritt’s observations corroborated the report, because
officers arrived within five minutes of the 9-1-1 call, defen-
dant and H were the only people parked near the vending
machine area at 1:00 a.m., H was initially evasive when she
noticed the police, Merritt observed that H had been crying,
and defendant did not show his hands.
As we previously noted, an officer can corroborate
an anonymous tip by “observing the illegal activity or by
finding the person, the vehicle, and the location substan-
tially as described by the informant.” Villegas-Varela, 132
Or App at 115. In State v. Hames, we held that an officer did
not have reasonable suspicion to stop the defendant because
the officer did not sufficiently corroborate an informant’s
report. 223 Or App 624, 635, 196 P3d 88 (2008). In that case,
a named informant reported that four or five people were
tearing up a car in a park. The report identified that the
parties arrived at the park in a black Honda Civic and a
white Chevrolet Corsica or Lumina. Id. at 626. The officer
arrived at the scene within minutes of receiving the report,
he got out of his patrol car and walked towards the reported
location, and he saw two cars next to each other in the park-
ing lot with people inside: one white Chevrolet Lumina and
one gold-colored car. Id. The officer did not observe any of the
people “tearing up a car,” but he stopped the cars because
one of them matched the description from the informant’s
report, “and he suspected that they had been involved in
a crime.” Id. We held that the officer’s observations were
insufficient to corroborate the report and create reasonable
suspicion, “[b]ecause the scene that [the officer] observed on
his arrival to the park was not ‘substantially as described
by the informant.’ ” Id. at 634-35. The fact that the reported
car was at the reported location was not enough to corrob-
orate the report. Id. Without more evidence corroborating
the report—such as evidence of a vandalized or damaged
car—a reasonable officer under the same circumstances
would not have “concluded that defendant was engaging,
440 State v. Cage
or had engaged in, the reported criminal activity.” Id. at
635.
In this case, Merritt did not sufficiently corroborate
the 9-1-1 report, because he did not observe any dispute or
evidence of a dispute near the vending machines—he only
observed people sitting in a car near the vending machines.
The state argues that Merritt corroborated the informant’s
report by finding defendant and H in defendant’s car near
the reported location of the dispute shortly after receiving
the dispatch. But the report made no mention of a vehicle,
and a vehicle is inherently mobile, such that defendant and
H could have arrived before, during, or after the report. The
officers had no information before making the stop as to how
long the car had been parked at that location. As in Hames,
discussed above, defendant’s presence in his car near the
reported dispute is not sufficient to corroborate that he was
the person involved in the dispute or to corroborate that he
had participated in any illegal activity. Id. at 634-35.
The state also cites H’s behaviors at the scene as
corroborating the informant’s report of a dispute: first, that
she was evasive upon seeing Merritt and ignored Merritt’s
attempts to speak to her; second, that she had been crying.
Even if we assume that H and defendant behaved evasively,
“[w]e have frequently observed * * * that a person’s nervous
or potentially furtive acts add little to the reasonable suspi-
cion calculus.” State v. Brown, 318 Or App 713, 722, 508 P3d
45 (2022) (citing State v. Dawson, 282 Or App 335, 342, 386
P3d 165 (2016)); State v. Espinoza-Barragan, 253 Or App
743, 750-51, 293 P3d 1072 (2012) (“[A] person’s legal efforts
to avoid being stopped or questioned by the police * * * con-
tribute[s] little, if anything, toward a reasonable suspicion
of criminal activity.”). Thus, the fact that H may have been
trying to avoid contact with police officers does not corrobo-
rate that defendant was engaged in criminal activity. As for
H’s crying, we agree with defendant that that evidence is
simply insufficient to corroborate the 9-1-1 report and pro-
vide reasonable suspicion that defendant had committed a
crime.
Lastly, the state argues that defendant “hiding some-
thing in a sweatshirt” corroborates the report of a firearm.
Cite as 324 Or App 430 (2023) 441
But defendant’s concealment of something does not corrob-
orate a dispute involving a firearm when the officers never
asked to see what he was concealing. Although an officer is
not required to corroborate all of the facts provided in an
informant’s report in order to satisfy the third factor, Hunt,
265 Or App at 239, Merritt’s observations at the scene before
stopping defendant did not corroborate the informant’s
report of a dispute involving a firearm. Merritt did not find
“the person, the vehicle, and the location substantially as
described by the informant” when the informant had made
no mention of the parties involved in the dispute or of a vehi-
cle, the officers did not observe any parties in a dispute, and
the officers did not observe a firearm. Villegas-Varela, 132
Or App at 115 (emphasis added).
We conclude that, because the informant made
the report secondhand and Merritt did not corroborate the
report, the informant’s tip was not sufficiently reliable to
support reasonable suspicion. Therefore, the trial court
erred in denying defendant’s motion to suppress on that
basis.
As noted, after the suppression hearing, the trial
court held that, in the alternative to stopping defendant
based on reasonable suspicion, the officers could have
stopped defendant as a material witness under Fair. The
trial court held that it was “reasonable for the officers to
believe that these individuals had some information that
would be critical to the police investigation.”
Under Article I, section 9, officers can stop and tem-
porarily detain a person for on-the-scene questioning when
they “reasonably suspect the person can provide material
information about a crime’s commission.” Fair, 353 Or at
608. The stop does not violate Article I, section 9, so long as
three conditions are met:
“(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.”
442 State v. Cage
Id. at 609. “In adopting [these] factors, [the Supreme Court
did] not foreclose refinement of them in future cases involv-
ing other factual circumstances.” Id.In Fair, the defendant called 9-1-1, dispatch over-
heard the defendant saying, “stop it” and “get off me,” and
it also heard a man yelling in the background before the
call was disconnected. Id. at 590. When officers arrived at
the scene shortly after the call, they immediately observed
that the area above the defendant’s right eye was swol-
len, and that the “defendant’s husband appeared angry
and was uncooperative and evasive.” Id. at 591, 610. The
officers then ordered the defendant and her husband onto
the front porch, talked to the defendant about the circum-
stances of the 9-1-1 call, and eventually discovered that the
defendant was in possession of drugs. Id. at 591-92. The
Supreme Court held that the officers had authority to stop
and temporarily detain the defendant as a material witness.
Id. at 615. It reasoned that the officers had probable cause to
believe that the defendant’s husband had just assaulted the
defendant, and “in ordering [the] defendant to stay on the
porch, the officers acted reasonably in temporarily detain-
ing her for purposes of questioning her as a witness to and
victim of a recent or ongoing assault.” Id. The court deter-
mined that the officers could stop the defendant, because
they had “an objectively reasonable belief that [the] defen-
dant could provide information material to the assault.”
Id.Here, the stop was not lawful under the material-
witness exception, because the officers did not have an
“objectively reasonable basis to believe that defendant was a
material witness to a crime.” State v. Middleton, 302 Or App
339, 352, 459 P3d 918 (2020) (emphasis in original). In Fair,
the defendant called 9-1-1 herself, which gave the officers
reason to believe that the defendant had witnessed a crime.
Fair, 353 Or at 599, 611-12 (the defendant calling 9-1-1 was
a “tacit invitation for [the police] to come to her aid”). But,
here, a motel employee called 9-1-1 to relay a reported dis-
pute secondhand. Defendant was not involved in the report
in any way such that the officers had a reason to believe that
he had information about the reported dispute.
Cite as 324 Or App 430 (2023) 443
In addition, the officers’ observations in Fair, includ-
ing the defendant’s 9-1-1 call, her swollen eye, and her hus-
band’s apparent anger and evasiveness, created “an objec-
tively reasonable basis to believe that [the] defendant was
a victim of a domestic assault that had just occurred at the
home and likely possessed information material to that
crime.” Id. at 611. In this case, the state argues that Merritt
had an objectively reasonable basis to believe that defen-
dant had information about the reported dispute because of
defendant’s proximity to the vending machines, and because
Merritt observed that H had been crying and was evasive.
Defendant’s proximity to the crime was “not suf-
ficiently specific or individualized to trigger the material-
witness exception,” especially when the state presented no
evidence regarding how long the car may have been parked
in that location. Middleton, 302 Or App at 352 (holding that
the officer did not have an objectively reasonable basis to
believe that the defendant was a material witness to a DUII
based on the fact that the defendant was driving near the
area of a car accident; “[t]he fact that anyone driving in the
area might theoretically have been in the area earlier and
witnessed the suspected crime is not sufficiently specific or
individualized to trigger the material-witness exception”).
Unlike the officers’ observations of an ongoing assault in
Fair, the officers here did not arrive in the middle of an
exigency or observe any specific crime. H showed no signs
of injury, she provided an alternative explanation for her
apparent crying, and “uncooperative and evasive behaviors
alone do not indicate that a recent or ongoing assault had
taken place.” State v. Garcia, 276 Or App 838, 852-53, 370
P3d 512 (2016) (holding that the Fair doctrine did not apply
when the witness seemed “kind of frazzled,” had been crying,
denied that any argument with the defendant had occurred,
showed no signs of injury, and did not request assistance).
Therefore, we conclude that the material-witness exception
does not apply and is insufficient to support an alternative
basis for the stop.
In summary, we conclude that the 9-1-1 report was
not sufficiently reliable to support reasonable suspicion,
because the report was made secondhand, and the officers
444 State v. Cage
did not sufficiently corroborate the report. We also conclude
that the material-witness exception did not provide a consti-
tutional basis for the stop. Without reasonable suspicion or
the material-witness exception, the officers lacked a consti-
tutional basis to stop defendant. Therefore, the trial court
erred in denying defendant’s motion to suppress evidence
discovered as a result of the stop.
Reversed and remanded.