State v. Walker

HADLOCK, C. J.

Defendant appeals a judgment of conviction for possession of methamphetamine in violation of ORS 475.894. He raises a single assignment of error on appeal, arguing that the trial court erred when it denied his motion to suppress methamphetamine that a police officer found after he detained defendant to investigate suspected illegal drug activity. Defendant contends that the officer lacked reasonable suspicion of criminal activity and, therefore, acted unlawfully when he stopped defendant. We conclude that the officer had reasonable suspicion. Accordingly, we affirm.

We review the denial of a motion to suppress for legal error, and we are bound by the trial court’s implicit and explicit findings of historical fact as long as the record includes constitutionally sufficient evidence to support those findings. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). We state the facts below in keeping with that standard.

Shortly before 12 p.m., “dispatch” told Newberg Police Officer McCowan that a person had called to report a suspected drug deal in a parking lot near George Fox University. The informant gave dispatch his name and telephone number and explained why he believed that a drug deal was in process. The informant said that he had seen a white van driven by a woman pull into the parking lot and a man on a bicycle ride up and get into the van. Once inside the van, the man reportedly reached into his pants, pulled something out that he and the woman looked at while it was in the man’s lap, and then the man and woman “were smoking something” in the van. The informant described the van and said that the man who had been on the bicycle was wearing a red sweatshirt and a black hat. Dispatch gave that information to McCowan, who drove to the parking lot in response.

McCowan arrived at the parking lot within a minute or two after receiving the report from dispatch. When he arrived, defendant was still in the van, but he then got out and began walking toward his bicycle; at the same time, the woman in the van drove away. McCowan observed that defendant was wearing a red sweatshirt and a black hat, as the informant had reported. McCowan parked his patrol car near defendant and questioned him about what had happened inside the van. Defendant refused McCowan’s request to search his person. Ultimately, McCowan learned that defendant was on probation and spoke with a municipal court judge, who ordered McCowan to search defendant. Defendant still refused to consent to the search; he then was arrested by another officer who had arrived at the parking lot. At that point, defendant acknowledged that he had methamphetamine in his pocket.

Defendant was charged with possession of methamphetamine. At the suppression hearing, the state conceded that McCowan had detained defendant at some point prior to the arrest, but it argued that the stop was justified because McCowan reasonably suspected that defendant had been engaged in illegal drug activity.¹ In support of that theory, the state offered evidence of the information that McCowan had received from dispatch, as well as McCowan’s own observations of the situation in the parking lot. In addition, McCowan described his training, which included information about “[different habits of drug users and people that possess drugs, places they frequent, things like that.” McCowan also testified that, although he had been a police officer for less than two years, he had investigated drug crimes, he was familiar with “the ways and manners in which methamphetamine is used,” and he had encountered “the method of transferring methamphetamine or delivering methamphetamine from one person to another.” McCowan testified that the information he received from dispatch, relaying the informant’s observations, was consistent with his experience in “a way a drug deal happens.” He also testified that, when he encountered defendant in the parking lot, he suspected that defendant had been engaged in illegal drug activity.

The trial court denied defendant’s suppression motion, concluding that McCowan had reasonable suspicion that justified the stop. Defendant then waived his right to a jury trial, and the court found him guilty of methamphetamine possession after a stipulated-facts trial.

On appeal, defendant argues that the trial court erred by denying his suppression motion because the state did not establish that McCowan had reasonable suspicion that defendant was engaged in criminal activity. Defendant acknowledges that McCowan properly could rely on the informant’s report because the informant had identified himself, the informant’s report was based on his personal observations of what happened in the parking lot, and McCowan’s own observations corroborated the informant’s report. See State v. Villegas-Varela, 132 Or App 112, 115, 887 P2d 809 (1994) (describing factors that inform the assessment of an informant’s reliability). Nonetheless, defendant argues, McCowan “could not reasonably rely on the informant’s con-clusory statement that he was witnessing a drug deal in forming reasonable suspicion.” The informant’s conclusion is not helpful to the reasonable-suspicion calculus, defendant asserts, because the record does not include evidence that the appearance of a drug deal is a matter of common knowledge. Defendant argues that—absent the informant’s assertion that he was witnessing a drug deal—the remaining information available to McCowan did not give him reasonable suspicion sufficient to justify his stop of defendant. Defendant concludes that the trial court should have granted his suppression motion because McCowan obtained the methamphetamine at issue as a direct result of the unlawful stop.

In response, the state asserts that “an assessment of all of the circumstances—the informant’s report, the officer’s own observations, and the officer’s training and experience”—establishes that McCowan had reasonable suspicion of criminal activity. We agree with the state.

We begin by reviewing basic principles regarding when police officers may conduct investigatory stops.

“Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen’s liberty with the degree of justification required for the intrusion. At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed ‘stops/ which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.”

State v. Fair, 353 Or 588, 593-94, 302 P3d 417 (2013) (citations and footnote omitted).

The result in this case turns on a proper understanding of the “reasonable suspicion” standard, that is, what it means for an officer to reasonably suspect that an individual has committed, or is about to commit, a crime. That standard is “less than the standard of probable cause to arrest.” State v. Holdorf, 355 Or 812, 823, 333 P3d 982 (2014). Thus, an officer may have “reasonable suspicion” sufficient to justify an investigatory stop of a person even if the officer does not have sufficient reason to believe that it is probable that the person has committed, or is about to commit, a crime. All that is necessary is that the officer reasonably suspect the person of past, current, or imminent criminal activity.

That an officer may briefly detain a person to investigate reasonably suspected criminal activity does not mean, of course, that an officer may interfere with the person’s liberty based only on intuition or a hunch. Id.; see State v. Guggenmos, 350 Or 243, 260, 253 P3d 1042 (2011) (differentiating an officer’s hunch from reasonable suspicion). To prevent officers from interfering with individuals’ liberty based on nothing more than the officers’ instincts or gut reactions to situations, courts require officers to be able to articulate the “observable facts” that form the basis for their suspicion of criminal activity. Holdorf, 355 Or at 823; State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977). The Supreme Court most recently has explained the resulting test for reasonable suspicion as follows:

“[I]f an officer is able to point to specific and articulable facts that a person has committed a crime or is about to commit a crime, the officer has a ‘reasonable suspicion’ and may stop the person to investigate.”

Holdorf, 355 Or at 823.

In Holdorf, the court emphasized that an officer may not detain a person based solely on the officer’s intuition or experience. Id. at 829. Nor may an officer rely solely on observing that a person has engaged in a “not too remarkable action.” Valdez, 277 Or at 628. However, the reasonable suspicion standard does incorporate “a proper regard for the experience that police officers bring with them when they encounter criminal suspects.” Holdorf, 355 Or at 827-28. Accordingly, whether an officer’s subjective suspicion of criminal activity is objectively reasonable “ ‘often will depend on the inferences drawn from the particular circumstances confronting the officer, viewed in the light of the officer’s experience.’” Id. at 828 (quoting Ehly, 317 Or at 80). Thus, reasonable suspicion exists when the officer can point to “distinctive behavior” associated with unlawful activity that permits the officer “to make a reasonable inference based on the officer’s pertinent training and experience” that criminal activity may be afoot. Id. at 829. Again, the distinction between an officer’s improper reliance solely on intuition and the officer’s permissible reliance on reasonable suspicion of criminal activity reduces largely to the officer’s ability to identify and describe the observable facts that lead the officer—in light of the officer’s training and experience—to suspect that a person has committed, is committing, or is about to commit a crime.

In cases like this one, where the facts known to the officer include information received from an informant who meets the standard for reliability under Villegas-Varela, another question sometimes arises: May the informant’s conclusion that unlawful activity is taking place contribute to the reasonable-suspicion analysis? In at least some circumstances, the answer is “yes.” For example, in State v. Mitchele, 240 Or App 86, 88, 251 P3d 760 (2010), a named informant reported that a person, whom the informant described, was “possibly casing, walking up and down [the] street, [and] looking at homes.” (Brackets in original.) Police officers stopped the defendant based largely on that report and eventually discovered that he possessed methamphetamine; he was convicted of that crime following the denial of his motion to suppress. Id. at 88-90. On appeal, the defendant argued that, even if the informant’s report was reliable, “the information that it conveyed was merely a conclusory observation that [he] was ‘casing’ houses, which does not support an objectively reasonable suspicion that [he] was committing or about to commit a crime.” Id. at 93. We disagreed, holding that the informant’s reliable report—including its conclusion—could “properly be included in the totality of the circumstances that we can consider to determine if the officers’ suspicion that defendant was committing or was about to commit a crime was objectively reasonable.” Id. at 94; see also State v. Perrin, 143 Or App 123, 128, 923 P2d 1249 (1996), rev den, 325 Or 368 (1997) (that reliable informant “reported an ‘intoxicated driver’ rather than describing the details that led him to that opinion does not, in and of itself, negate reasonable suspicion”).

True, in holding that the reasonable-suspicion analysis can take into account an informant’s conclusion that a person is engaged in unlawful activity, courts sometimes have observed that the informant’s belief was based on matters of common knowledge. For example, in State v. Lichty, 313 Or 579, 584, 835 P2d 904 (1992), a store clerk told a police officer that a “bag of coke” had fallen out of a wallet that she found in the store. In holding that the officer had reasonable suspicion to stop the defendant based on the clerk’s statement, the Supreme Court rejected the defendant’s argument that the officer could not reasonably rely on the clerk’s statement because the clerk was not an expert in drug identification. Id. at 585. The court noted that the record included evidence that “members of society have a general knowledge regarding the appearance of cocaine” and the clerk testified that her belief that the substance was cocaine was based on watching the news and television programs. Id. Somewhat similarly, in State v. Bybee, 131 Or App 492, 497, 884 P2d 906 (1994), we held that a convenience store clerk’s reliable report that the defendant was driving while intoxicated was enough—by itself—to justify a stop of the defendant even though the report of intoxication was conclusory “because members of the general public have a common knowledge about whether a person is under the influence of alcohol.”

In neither Lichty nor Bybee, however, did the courts conclude that—absent evidence that the subject of the informant’s report was a matter of common knowledge—the police officers involved could not have relied on those reports as a contributing factor in the reasonable-suspicion analysis. In some circumstances, an informant’s unexplained conclusion that criminal activity is afoot will not, standing alone, give rise to objectively reasonable suspicion that a person has committed a crime. See, e.g., State v. Greer, 93 Or App 409, 412, 763 P2d 158 (1988) (an informant’s “report that ‘two suspicious’ people [were] in a ‘suspicious vehicle’ * * * did not supply a factual basis for [a] stop”). In the end, though, what matters is whether the totality of the facts known to an officer, including information and conclusions received from an informant, evaluated in light of the officer’s training and experience, give the officer objectively reasonable suspicion that a person is, has been, or is about to be engaged in criminal activity. See State v. Wiseman, 245 Or App 136, 142, 261 P3d 76 (2011) (a named informant’s report of “suspicious” activity was properly “considered as a part of the totality of the circumstances in determining whether there was reasonable suspicion”).

In this case, the facts known to McCowan, evaluated in light of his training and experience, gave him reasonable suspicion that defendant was engaged in unlawful conduct. McCowan had received a report from an identified informant that a bicyclist and a person driving a van met in a parking lot, the bicyclist entered the van, he then pulled something from his pocket, and he and the van’s driver then smoked something. The informant not only described those facts, but he explained the conclusion that he had drawn from his observations—that the two people were involved in a drug deal. In other words, the informant suggested that the “something” that the people were smoking was an illicit drug and that the people had met in the parking lot for that purpose. See State v. Clink, 270 Or App 646, 651, 348 P3d 1187, rev den, 358 Or 69 (2015) (an informant’s report that two people in a car were “smoking something” suggested that the informant believed the people were engaged in illegal activity, given that he had reported that fact to the police).

In light of his training and experience regarding how drug deals happen, McCowan could reasonably rely on both the informant’s description of the events he had observed and the unsurprising conclusion that the informant reached from those observations in developing a suspicion that defendant was engaged in criminal activity. McCowan’s suspicion reasonably could be heightened when he personally observed that both parties promptly left the parking lot after interacting only briefly. That is, McCowan’s personal observations, his knowledge of the informant’s report to dispatch, and his personal training and experience combined to allow him to describe the “observable” and “articulable” facts that led him to suspect that defendant and the van’s driver had engaged in illegal drug activity. Thus, McCowan did not detain defendant based on a hunch or intuition; nor did he stop defendant based solely on actions that were “not too remarkable.” Valdez, 277 Or at 628. Rather, the detention was based on a series of events that, considered in combination, an officer with training and experience regarding drug transactions could identify as distinctively associated with criminal activity: the quick meet-up of two people in a parking lot, their brief examination of something that one of them pulled from his clothing, their subsequent “smoking something,” and their quick departure. The trial court did not err when it concluded that the stop was justified by reasonable suspicion of criminal activity and, therefore, denied defendant’s motion to suppress.

Affirmed.

1 The state adheres to that approach on appeal. It argues only that any stop was justified by reasonable suspicion; it does not dispute that a stop occurred.