State v. Rodriguez ( 2022 )

1
Argued and submitted October 27, 2021, reversed and remanded June 2, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
SERGIO ALEXIS RODRIGUEZ,
Defendant-Appellant.
Marion County Circuit Court
19CR18197, 14C40225;
A171770 (Control), A171771
511 P3d 424
In this consolidated criminal case, defendant assigns error to the denial of his
motion to suppress evidence. Specifically, defendant argues that officers lacked
reasonable suspicion that defendant had committed an unlawful gun transac-
tion or related crime when they stopped him based on a report regarding a gun
transaction in a parking lot. The state contends that the officers had reasonable
suspicion that defendant had committed conspiracy to improperly transfer a fire-
arm, ORS 166.418; conspiracy to unlawfully purchase a firearm, ORS 166.425(1);
conspiracy to unlawfully possess a firearm within a vehicle, ORS 166.250(1)(b);
and those same crimes under an aiding and abetting theory. Held: The officers
lacked information that would indicate that defendant in particular had commit-
ted an unlawful firearm transaction or related crime. Defendant was entitled to
the suppression of any state evidence derived from his unlawful stop, in particu-
lar, evidence that the state identified defendant as the man in blue who had been
present during the gun transaction.
Reversed and remanded.
J. Channing Bennett, Judge.
Joshua B. Crowther, 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 Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
Reversed and remanded.
2 State v. Rodriguez
SHORR, J.
In this consolidated criminal case, defendant appeals
from two judgments: a judgment convicting him of felon in
possession of a firearm, ORS 166.270(1), and a judgment
revoking his “second look” conditional release in an unre-
lated case.1 Defendant assigns error to the denial of his
motion to suppress evidence discovered after he was stopped,
arguing that officers stopped him without reasonable suspi-
cion that he had committed a specific crime or type of crime.
We conclude that the trial court indeed erred in concluding
that the officers had reasonable suspicion to stop defendant,
and likewise erred in denying defendant’s motion to sup-
press. Accordingly, we reverse and remand.
In reviewing a trial court’s ruling on a motion to
suppress evidence for legal error, we are bound by the court’s
findings of fact if they are supported by constitutionally suf-
ficient evidence in the record. State v. Baker, 350 Or 641,
650, 260 P3d 476 (2011). Where the trial court did not make
express factual findings and there is evidence from which
such facts could be decided in more than one way, we pre-
sume that the court decided those disputed facts in a man-
ner consistent with its ultimate conclusion. State v. Powell,
288 Or App 660, 662, 406 P3d 1111 (2017), rev den, 362 Or
508 (2018). We summarize the facts consistently with that
standard.
On March 15, 2019, a witness named Robinson
called 9-1-1 to report that he had just observed a firearm
transaction between three men in the parking lot of his
apartment complex, “right out front” of his apartment.
Robinson reported that he observed a white Scion or similar
model car enter the parking lot of the apartment complex.
Robinson observed a man who “looked kind of like a gang-
ster” and who was “decked in one color” get out of the Scion
and stand around waiting for about five minutes. That man,
later identified as defendant’s brother David,2 appeared to
1
Specifically, defendant was found in violation of two conditions of his condi-
tional discharge: first, the condition that he not possess firearms, and second, the
condition that he obey all laws as directed.
2
Because defendant and his brother have the same last name, we refer to the
brother by his first name.
Cite as 320 Or App 1 (2022) 3
be of “Mexican or Islander descent,” in his 20’s, “[m]aybe five
feet six inches to five feet eleven inches” tall, of thin build,
with “[d]ark black” hair. Robinson further articulated that
David was wearing “a black and red hat on backwards” with
a red shirt and “[e]xtremely baggy” black pants. Robinson
provided the Scion’s Oregon license plate number.
Next, Robinson observed a white Volvo with Texas
license plates pull into the parking lot. Robinson recognized
the Volvo because he had seen it in the parking lot before.
Specifically, Robinson reported that the Volvo “seems to do
some deals here.” A man exited the Volvo and met David at
the back of the Volvo where they opened the trunk and began
inspecting a handgun.3 At that point, a man later identi-
fied as defendant, who Robinson described as “Mexican or
Islander” and dressed in “all blue,” exited the front passen-
ger seat of the Scion and met the other men at the back of
the Volvo. David pulled money out of his pocket and handed
it to the man from the Volvo. Robinson described the gun as
a bigger black handgun that had the shape of a pistol “like
a 1911.” Finally, David wrapped the gun in a white T-shirt,
and David and defendant returned to their vehicle and left
the apartment complex.4 Robinson described the men as
“all gangstered out,” “hoodlums,” and “[p]eople who shouldn’t
have a gun.”
Officers Slivkoff and Scott received the report from
dispatch and responded to the area. Slivkoff’s knowledge at
the time was that Robinson had reported “an exchange of an
item for a firearm” and had provided “a description of two
of the involved parties, the vehicles that were involved, and
a license plate.” Scott described the call as, “a witness had
seen somebody collect a firearm somehow” and “somebody
had a gun, they got it from somebody else, and they put it in
the car.”
Slivkoff ran the plate number and determined that
the vehicle was registered to a woman at a nearby apartment
complex. Slivkoff headed towards that address and soon
3
Robinson did not provide a description of the individual driving the Volvo
other than that he was male.
4
An individual who Robinson did not describe remained in the driver’s seat
of the Scion throughout the interaction.
4 State v. Rodriguez
caught up with the vehicle, where she determined that it was
a silver Kia Soul with the same number of occupants and
same license plate number as provided in Robinson’s report.
The vehicle entered the apartment complex parking lot and
parked. All three occupants got out, shut the doors, and
started to quickly leave in separate directions. At that time,
Slivkoff and Scott stopped the occupants. David matched the
description that Robinson had provided of the man in red,
but defendant was wearing a black football jersey and blue
jeans. A third officer, Renz, arrived shortly afterwards.
Scott “contacted” defendant, “asked him what they
were doing,” and “told him that we were there because we
* * * got a call about a possible firearm being transferred to
the car, and wanted to know if he had anything to do with
it.” Defendant responded that “he was coming home,” that
he was “going to pick up his brother from North Salem High
School,” and told Scott that his brother was “in the apart-
ment.” Scott asked defendant, “how is he in the house when
you just pulled up?” Defendant did not answer and Scott
“put him in handcuffs and put him in the back of the car.”
Upon determining that the vehicle’s registered
owner was not present, Slivkoff contacted the owner, who
was David and defendant’s mother, and later received con-
sent to search the vehicle. A search of the vehicle revealed
one 9mm handgun in the center console, one .45 caliber
handgun in a black backpack “on the rear floorboards,” and
an all-black plastic handgun in the same backpack. The
backpack was located where David had been sitting. After
receiving Miranda warnings, David told Slivkoff that both
guns were his, and admitted to having just purchased the
larger .45 caliber weapon.
Around that time, after the officers had stopped
the occupants of the vehicle, Slivkoff called Robinson “to
get some further information.” Robinson later testified to
additional details about the transaction, including that he
had observed the transaction from approximately 20 yards
away, that he had noticed that defendant had long hair and
was wearing a hat, and that when defendant joined the
other two men at the trunk of the Volvo, defendant held
and inspected the firearm himself for a period as he said
Cite as 320 Or App 1 (2022) 5
something to David. Robinson testified that defendant then
returned the gun to David, who handed money to the man
from the Volvo before wrapping the gun in the white T-shirt.
However, the record is unambiguous that that information
was relayed to the police after they stopped defendant and
the other occupants of the vehicle. Accordingly, as we dis-
cuss further below, it is not part of our analysis of whether
the police had reasonable suspicion that defendant had com-
mitted a crime at the time the officers executed the stop.
Defendant was charged with felon in possession of
a firearm on the theory that, during the transaction, he had
briefly possessed the .45 caliber handgun that was discov-
ered in the backpack at David’s feet. The state also alleged
in an unrelated case that defendant had violated the con-
ditions of his second look conditional release based on the
same incident. As the case proceeded towards trial, defen-
dant moved in limine to exclude Robinson’s out-of-court and
in-court identifications of defendant as the man in blue.
That motion was denied.5 Defendant waived his right to a
jury and a bench trial followed.
On the morning of trial, defendant filed a motion
to suppress “the evidence illegally obtained following the
unlawful seizure of defendant,” as well as a motion to con-
tinue trial to allow for time to hold a pretrial hearing on
the suppression motion. The trial court denied the motion to
continue as “untimely” and not “well-founded,” and, having
presided over the hearing on defendant’s motion in limine
the week before, stated that “I’ve heard the testimony of
what occurred, and it certainly meets the standards of rea-
sonable suspicion that a crime had occurred.” However, the
court permitted defendant “to raise [the suppression issue]
during the trial.”
After the state presented its case at the bench trial
and rested, defendant renewed his motion to suppress the
evidence and argued that he had been stopped without rea-
sonable suspicion. The state responded by arguing that,
“in this instance, there’s more than reasonable suspicion,
but that there’s actually probable cause to search the
5
Defendant does not assign error to that ruling on appeal.
6 State v. Rodriguez
vehicle. Based on a description of two individuals purchas-
ing guns out of the back of a vehicle that * * * had been
associated with other criminal activity, given the descrip-
tion of exactly what David Rodriguez was wearing * * *,
carrying that firearm in a T-shirt, concealing it in * * *
such a way, showing that it’s not this open, legal sale, and
then taking that gun, getting it in the vehicle and leaving,
and then being located at the scene wearing the exact same
clothing[.]”
The trial court ruled that a stop occurred when the
officers “converged on the scene” as defendant and the other
occupants exited the vehicle. The court also found that there
was reasonable suspicion to stop defendant at that point:
“Robinson saw a transaction occur out of the trunk of a
car which he believes has been engaged in illegal activity
or drug sales activity in his complex, and that he or his
mother have called the police on several times. He gave a
description of the car, including the license plate, and com-
plained about the firearm and identified the firearm. And
how he identified it, he’s been consistent in that. That’s rea-
sonable suspicion.”
The court also concluded that the only evidence discovered
as a result of the stop was the guns, which had been dis-
covered subject to a consent search.6 The court denied the
motion to suppress, and defendant was later convicted of
felon in possession of a firearm.
Defendant appeals the denial of his motion to sup-
press, arguing that the officers “did not have sufficient infor-
mation to reasonably believe that defendant had committed
a crime or had made an unlawful firearm purchase.” As a
result, defendant argues that we should “suppress defen-
dant’s identity and connection to the crime,” because “[b]ut
for the stop, defendant would have kept walking from the
car and would have had no interaction with the police what-
soever.”7 We review the denial of defendant’s suppression
6
As we later discuss, however, the officers also discovered defendant’s iden-
tity and connection to those guns as a result of the stop.
7
The state argues that defendant never preserved an argument below that
he was entitled to the suppression of his identity as a piece of evidence derived
from the stop. Having reviewed the record, we conclude that defendant’s argu-
ment on appeal is properly preserved for our review.
Cite as 320 Or App 1 (2022) 7
motion for errors of law. State v. Eastman, 269 Or App 503,
506, 345 P3d 493 (2015).
On appeal, defendant raises two main arguments:
(1) that nothing about Robinson’s initial report to police indi-
cated that an illegal firearm transfer or other related crime
had occurred; and (2) that, even if it was reasonable for the
officers to believe that the sale was unlawful, that that would
only create liability for the man from the Volvo, the seller,
and not for defendant. In response, the state argues that the
officers did have specific and articulable facts to support a
reasonable belief that defendant was involved in a type of
unlawful firearm crime. Specifically, the state argues that
the officers had reasonable suspicion that defendant had
committed conspiracy to improperly transfer a firearm,
ORS 166.418; conspiracy to unlawfully purchase a firearm,
ORS 166.425(1); conspiracy to unlawfully possess a firearm
within a vehicle, ORS 166.250(1)(b); and those same crimes
under an aiding and abetting theory.
Neither party disputes the trial court’s finding that
defendant was stopped when he was approached by Scott
and other officers as he exited the parked vehicle, or that
Scott subjectively believed that he had reasonable suspicion
to stop defendant. Therefore, the issue before us is whether
that subjective belief was objectively reasonable. As we
explain, we conclude that the officers lacked individualized
reasonable suspicion to stop defendant, because even if it
was reasonable to believe under the circumstances that
Robinson had observed some sort of gun transaction crime,
the specific and articulable facts known to the officers at
the time of the stop did not support a reasonable belief that
defendant specifically had committed any of the crimes that
the state proposes.
We begin with the controlling law. Article I, section 9,
of the Oregon Constitution protects the rights of “people to
be secure in their persons * * * against unreasonable search,
or seizure.” An investigatory stop is a warrantless seizure
that is per se unreasonable unless supported by reasonable
suspicion of a crime. State v. Gilkey, 317 Or App 752, 757, 505
P3d 1029 (2022). Reasonable suspicion exists when an offi-
cer “reasonably suspect[s]—based on specific and articulable
8 State v. Rodriguez
facts—that the person committed a specific crime or type of
crime.” State v. Maciel-Figueroa, 361 Or 163, 182, 389 P3d
1121 (2017). In other words, the officer’s subjective belief
that a specific crime or type of crime has been committed
must be “objectively reasonable under the totality of the cir-
cumstances existing at the time of the stop.” Id. “Reasonable
suspicion does not require that the facts as observed by the
officer conclusively indicate illegal activity but, rather, only
that those facts support the reasonable inference of illegal
activity by that person.” State v. Dampier, 244 Or App 547,
551, 260 P3d 730 (2011) (internal quotation marks omitted).
It is the state’s burden to establish that an officer had rea-
sonable suspicion to initiate a stop. State v. Westcott, 282
Or App 614, 618, 385 P3d 1268 (2016), rev den, 361 Or 486(2017).
We pause here to reiterate the totality of the cir-
cumstances known to the officers at the time they stopped
defendant: A concerned citizen had called to report some
sort of brief gun transaction or sale in the parking lot of the
caller’s apartment complex. The caller described the buyer
or transferee as a “Mexican or Islander” male in his 20’s,
five feet six inches to five feet eleven inches in height, thin
build, with dark black hair, wearing a black and red hat, a
red shirt, and baggy black pants, who was riding as a pas-
senger in a white Scion or similar car with a specific Oregon
license plate number. The caller described the transferor or
seller as a man driving a white Volvo who he had seen doing
“deals” at the complex before, although he did not elaborate
on what that meant. The caller relayed that the two men
had met at the back of the Volvo and that a “Mexican or
Islander” male dressed in all blue got out of the Scion and
joined them. The seller got out a gun and the buyer inspected
it before the buyer removed money from his pocket, handed
it to the seller, and wrapped the gun in a white T-shirt. Then
all three men returned to their respective vehicles and left.
Soon after, the officers spotted a vehicle similar to
Robinson’s description with a matching plate and three occu-
pants as described. The man in the back seat matched the
description of the man in red completely, while the descrip-
tion of defendant was somewhat off. The occupants parked
and attempted to leave quickly in different directions before
Cite as 320 Or App 1 (2022) 9
they were stopped. Finally, although Robinson described the
men as “all gangstered out,” “hoodlums,” and “[p]eople who
shouldn’t have a gun,” it is unclear whether those charac-
terizations were communicated to the responding officers.
Regardless, those characterizations are not specific and
articulable facts that could support reasonable suspicion on
this record.
On balance, the only information the officers had
about defendant was that he was “Mexican or Islander,” that
he was dressed in all blue, that he was traveling with the
buyer in red in the same vehicle, that he was physically pres-
ent near the buyer when the buyer handed over money and
the purchase was consummated, and that he moved away
from the car quickly in the moments before he was stopped.
Essentially, those facts establish only that defendant was a
person who was present when a firearm was transferred or
sold. Although Robinson later testified that he had observed
David and defendant passing the handgun back and forth
and “inspecting it” before David handed over money, con-
summating the transaction, the record is unambiguous that
the officers did not have that information at the time they
stopped defendant.
Considering the dearth of information that would
indicate that defendant in particular had committed a spe-
cific crime or type of crime, we reject the state’s contention
that specific and articulable facts supported the officers’
belief, at the time defendant was stopped, that defendant
had committed an unlawful firearm transaction or related
crime. We briefly consider each specific crime the state offers
as a possible basis for reasonable suspicion and reject each
in turn.
First, the totality of the circumstances present in
this case do not support a reasonable belief that defen-
dant had committed the crime of conspiracy to improperly
transfer a firearm. The crime of improperly transferring a
firearm is defined by ORS 166.412 and ORS 166.418. ORS
166.412 requires that a gun dealer, or “a person engaged in
the business, as defined in 18 U.S.C. 921, of selling, leasing
or otherwise transferring a firearm,” must comply with vari-
ous requirements before delivering a firearm to a purchaser.
10 State v. Rodriguez
ORS 166.412(1)(f), (2). Those requirements include, but are
not limited to, that the dealer shall complete a firearms
transaction record, obtain the purchaser’s signature on that
record, obtain the thumbprints of the purchaser on a sep-
arate thumbprint form, request a criminal history record
check on the purchaser, and receive and record a unique
approval number from the department that conducted the
record check. ORS 166.412(2). Under ORS 166.418, a gun
dealer—notably, not a purchaser, transferee, or other party
to the transaction—who “sells, leases or otherwise transfers
a firearm and intentionally violates ORS 166.412” is guilty
of the Class A misdemeanor of improperly transferring a
firearm. Additionally, ORS 166.412 does not mandate that
a dealer complete the necessary paperwork, background
check, and other requirements immediately before the deliv-
ery of the firearm. As relevant here, a person is guilty of
criminal conspiracy if, “with the intent that conduct consti-
tuting a crime punishable as a * * * Class A misdemeanor be
performed, the person agrees with one or more persons to
engage in or cause the performance of such conduct.” ORS
161.450(1).
Here, the facts known to the officers at the time
they stopped defendant did not give rise to a reasonable
belief that defendant agreed with one or more persons to
engage in or cause an illegal gun transfer with the intent
that an illegal gun transfer be performed. Defendant’s phys-
ical proximity to the transaction, association with the pur-
chaser, and quick movement away from the car before the
stop were the only facts known to the officers at the time
they stopped defendant that could plausibly support an
inference that defendant made any agreement to engage in
or cause an illegal gun transfer, and we reject the conten-
tion that those facts alone could support such an inference.8
8
To the extent that the state contends that Robinson’s description of defen-
dant’s “all blue” clothing provided a specific and articulable fact in support of the
officer’s reasonable suspicion that defendant had committed any crime, including
the crime of conspiracy to improperly transfer a firearm, we reject that argu-
ment. Although Robinson’s 9-1-1 call described David and defendant as “decked
in one color,” the state did not elicit any testimony that would explain the signif-
icance, if any, of such clothing. And, as we explained earlier, we do not consider
Robinson’s descriptions of the men as “gangster[s]” or “hoodlums” to be specific
and articulable facts for purposes of this analysis.
Cite as 320 Or App 1 (2022) 11
Cf. State v. Kingsmith, 256 Or App 762, 773, 302 P3d 471
(2013) (no individualized reasonable suspicion of drug crime
to stop backseat passenger in car that had stopped briefly
at remote interstate overpass where driver appeared to
exchange something with second vehicle, and where driver
had pending case for marijuana crimes and sores on his face
“consistent with methamphetamine use,” driver and front
passenger both appeared nervous, and car had “faint odor
of marijuana”; none of those facts indicated “that defendant
was involved in the exchange that occurred on the overpass
beyond her mere presence in the car”); State v. Regnier, 229
Or App 525, 536, 212 P3d 1269 (2009) (no individualized rea-
sonable suspicion to stop defendants present at party where
minors were consuming alcohol and who walked away when
officer approached; “presence, in and of itself, is not enough
under the law to give rise to a reasonable inference that
defendants had [furnished alcohol to minors]”).
The state’s arguments that the officers had reason-
able suspicion that defendant had committed the crimes of
conspiracy to unlawfully purchase a firearm, ORS 166.425(1),
and conspiracy to unlawfully possess a firearm within a
vehicle, ORS 166.250(1)(b), are similarly unsupported. “A
person commits the crime of unlawfully purchasing a fire-
arm if the person, knowing that the person is prohibited by
state law from owning or possessing the firearm or having
the firearm under the person’s custody or control, purchases
or attempts to purchase the firearm.” ORS 166.425(1). The
state appears to argue that the clandestine nature of the
transaction gives rise to not only an inference that David
purchased the firearm with knowledge that he was prohib-
ited from possessing it, but also an inference that defendant
conspired to effectuate that unlawful purchase. Assuming
the first part of that argument is supportable—an individ-
ual’s concealment of an item could support a reasonable
inference that the item is contraband—the second part of
the state’s argument does not follow, because, again, defen-
dant’s mere presence during the gun transfer does not give
rise to a reasonable inference that he conspired to engage
in or cause that transfer. ORS 166.250(1)(b) provides that,
except for exceptions not relevant here, “a person commits
the crime of unlawful possession of a firearm if the person
12 State v. Rodriguez
knowingly * * * [p]ossesses a handgun that is concealed and
readily accessible to the person within any vehicle[.]” The
state contends, as we understand it, that the officers had
reasonable suspicion to believe that defendant conspired
with David to unlawfully possess the purchased handgun
by having it concealed but readily accessible in the vehicle.
But again, defendant’s mere presence does not support that
theory.
Finally, the state argues that the officers also had
reasonable suspicion to stop defendant for improperly trans-
ferring a firearm, ORS 166.418; unlawfully purchasing a
firearm, ORS 166.425(1); or unlawfully possessing a firearm
within a vehicle, ORS 166.250(1)(b); pursuant to an aiding
and abetting theory of liability. Under ORS 161.155(2)(b),
a person is criminally liable for the criminal conduct of
another if the person “[a]ids or abets or agrees or attempts
to aid or abet such other person in planning or committing
the crime” and does so “[w]ith the intent to promote or facil-
itate the commission of the crime.” However, it is well estab-
lished that mere presence during the commission of a crime
is insufficient to establish such liability. State v. Stewart,
259 Or App 588, 601, 314 P3d 966 (2013).
Thus, we conclude that the officers lacked reason-
able suspicion that defendant had committed a type of gun
transaction or related crime, and therefore lacked a consti-
tutional basis to stop him. As a result, the trial court erred
in denying defendant’s motion to suppress all the evidence
discovered as a result of that stop.
Finally, we address the parties’ arguments regard-
ing the appropriate remedy. Defendant contends that the
state’s discovery of his identity and connection to the guns
in the vehicle was a direct, derivative result of his unlaw-
ful stop.9 In response, the state argues that suppression is
unwarranted because defendant’s identity and connection
to the guns in the vehicle were also admitted as evidence
9
Defendant conceded during oral argument that the guns themselves were
discovered as a result of a consent search carried out with the consent of the
vehicle’s registered owner, defendant’s mother, and therefore are not subject to
suppression as a remedy for any earlier violation of defendant’s constitutional
rights. We accept that concession.
Cite as 320 Or App 1 (2022) 13
through Robinson’s testimony and in-court identification,
evidence that defendant does not challenge on appeal. We
understand the state to contend that any error in denying
the suppression motion was harmless because defendant’s
identity and connection to the crime were established by
other means.
We must affirm a defendant’s conviction even when
a trial court commits error if “there is little likelihood that
the error affected the verdict or substantially affected the
defendant’s rights.” State v. Garcia, 284 Or App 357, 363,
392 P3d 815, rev den, 361 Or 645 (2017).
“In assessing whether erroneously admitted or excluded
evidence affected the verdict, we consider the nature of the
evidence in the context of the trial as a whole. We therefore
review all portions of the record, not just the evidence most
favorable to the state. Among other factors, we consider
whether the evidence was cumulative of other evidence
admitted without objection, which includes assessing any
differences in the quality of the erroneously admitted or
excluded evidence as compared to the other evidence on the
same issue. We also consider how the case was tried and
the extent to which the disputed evidence was or was not
emphasized by the parties and central to their theories of
the case.”
State v. Simon, 294 Or App 840, 849, 433 P3d 385 (2018),
rev den, 365 Or 502 (2019) (internal citations omitted).
Having reviewed the record, we conclude that the court’s
admission of the evidence at issue was not harmless.
First, police testimony regarding defendant’s iden-
tity and connection to the guns was indeed evidence that
was derived from defendant’s unlawful stop, and the state
put forward no argument that the officers would have inev-
itably discovered that evidence from some other source.
Further, we reject the state’s contention that the admission
of that testimony was harmless because of similar evidence
of defendant’s identity and connection to the guns that was
admitted through Robinson’s testimony. Absent testimony
from the responding officers that they had identified and
detained defendant as he was leaving the suspect car, that
he had been wearing similar clothing as the man in “all
blue” described by Robinson, and that he had been seated
14 State v. Rodriguez
in the front passenger seat of the suspect vehicle—the same
location where Robinson had seen the man in blue—the only
evidence of defendant’s identity and connection to the guns
would have been admitted via Robinson’s in-court identifica-
tion at trial. But that identification accompanied testimony
that Robinson had never seen the man in blue before that
day, and that he had only seen him for a few minutes, from
20 yards away, nearly three months earlier. In other words,
Robinson’s identification of defendant as the man in blue was
subject to considerable challenge on cross-examination that
the police identification was not. Indeed, defendant’s main
defense at trial was that Robinson was inconsistent and
unreliable as a witness. The police testimony as to defen-
dant’s identity and connection to the guns had the effect of
corroborating Robinson’s account. With that in mind, we
cannot say that there is little likelihood that the erroneous
admission of the police testimony identifying defendant and
connecting him to the guns found in the vehicle affected the
verdict in this case.
The Oregon exclusionary rule functions to vindi-
cate a defendant’s personal rights by placing a defendant
who has been subject to a constitutional violation in the
same position as if no violation had occurred. State v. Davis,
313 Or 246, 253-54, 834 P2d 1008 (1992). Here, defendant
was entitled to the suppression of any state evidence derived
from his unlawful stop absent reasonable suspicion, in par-
ticular, evidence that identified defendant as the man in
blue who had been present during the gun transaction. As a
result, we reverse and remand both judgments on appeal.
Reversed and remanded.