State v. Gattenby

229
Argued and submitted August 16, reversed and remanded December 11, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
EVERETT JEREMY GATTENBY,
Defendant-Appellant.
Marion County Circuit Court
17CR35313; A167048
455 P3d 582
Defendant appeals a judgment of conviction for driving under the influence of
intoxicants and refusal to take a test for intoxicants. Defendant appeals following
his conditional guilty plea. Defendant assigns error to the trial court’s denial of
his pretrial motion to suppress evidence resulting from a traffic stop. Defendant
asserts that, because the officer did not have reasonable suspicion that defen-
dant had committed a crime, the stop was unlawful under Article I, section 9,
of the Oregon Constitution. Held: The trial court erred in denying defendant’s
motion to suppress because the facts known to the officer at the time of the stop
were insufficient to support a reasonable suspicion that defendant had committed
a crime.
Reversed and remanded.
Susan M. Tripp, Judge.
Anna Belais, 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.
Paul L. Smith, Deputy Solicitor 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
James, Judge.
SHORR, J.
Reversed and remanded.
230 State v. Gattenby
SHORR, J.
Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants, ORS 813.010,
and refusal to take a test for intoxicants, ORS 813.095.
Defendant assigns error to the trial court’s denial of his
pretrial motion to suppress evidence resulting from a traf-
fic stop. We conclude that the court’s ruling was erroneous
because the stop from which the state obtained the evidence
was not based on a reasonable suspicion that defendant had
committed a crime. Accordingly, we reverse and remand.
We accept the trial court’s factual findings that
are supported by evidence in the record. State v. Vasquez-
Villagomez, 346 Or 12, 23, 203 P3d 193 (2009). Further,
“[i]n the absence of express factual findings, we presume
that the trial court decided the disputed facts in keeping
with its ultimate conclusion.” State v. Garcia, 276 Or App
838, 839, 370 P3d 512 (2016). The following facts are stated
consistently with that standard.
Late at night on January 28, 2017, Officer Jason
Conwell received a dispatch from the Salem Police Department
telling him that a named 9-1-1 caller reported that there
was a woman “screaming and saying she was choked out”
and that there was a man walking away from a crowd gath-
ering around the woman. The caller had not “seen anything
physical,” and he did not know the woman or the man.
But the caller reported that the man was driving south on
Commercial Street in a red Ford car, and he reported the
car’s license plate number. Conwell looked up the car’s infor-
mation to discover its registered owners, one of which was
defendant. Soon after, defendant drove by Conwell in a red
Ford car matching the caller’s description. After confirm-
ing that the license plate number matched as well, Conwell
pulled defendant over. Based on evidence discovered during
that stop, Conwell arrested defendant. Defendant was
charged with driving under the influence of intoxicants,
ORS 813.010, refusal to take a test for intoxicants, ORS
813.095, and harassment, ORS 166.065.
In a pretrial hearing, defendant moved to suppress
all evidence obtained during the stop, contending that
the stop was not supported by reasonable suspicion and,
Cite as 301 Or App 229 (2019) 231
therefore, was in violation of Article I, section 9, of the Oregon
Constitution and the Fourth Amendment to the United
States Constitution. Defendant argued that the caller’s
report did not provide information from which Conwell
could reasonably suspect that defendant had committed any
crime.
The trial court denied the motion, concluding that
Conwell had reasonable suspicion to believe that defendant
had committed a crime. Defendant then entered a condi-
tional guilty plea to driving under the influence of intox-
icants, ORS 813.010, and refusal to take a test for intoxi-
cants, ORS 813.095, reserving his right to appeal the trial
court’s denial of his motion to suppress.
On appeal, defendant assigns error to the trial
court’s denial of his motion to suppress. He contends that
the court erred in concluding that Conwell had reasonable
suspicion to stop him. Specifically, defendant argues that
the facts known to Conwell at the time of the stop were
insufficient to support a reasonable suspicion that defen-
dant had committed a crime or even that a crime had been
committed in the first place. In response, the state contends
that the facts reported by the caller were sufficient to sup-
port a reasonable suspicion that defendant had committed a
crime and, alternatively, that the stop was justified on other
grounds because Conwell reasonably believed that defen-
dant was a material witness to a crime.1 We review the trial
court’s decision to deny defendant’s suppression motion for
legal error. Vasquez-Villagomez, 346 Or at 23.
Article I, section 9, prohibits “unreasonable” searches
and seizures. Under Article I, section 9, a “stop” is a “kind of
1
The state also argues that the caller’s report contains indicia of reliabil-
ity under our three-part analysis for determining whether a citizen-informant’s
report, standing on its own, is sufficiently reliable to support reasonable suspi-
cion. See generally State v. Villegas-Varela, 132 Or App 112, 115, 887 P2d 809(1994) (stating the three-part analysis to determine the reliability of a citizen-
informant’s report). Defendant does not substantively dispute this point on
appeal, and the questions presented by defendant’s appeal can be resolved
assuming that the standard for reliability in Villegas-Varela has been met.
Therefore, we assume without deciding that Conwell could form his suspicions
based on the facts reported by a presumably reliable caller. The issue in this
case is whether those facts, assuming their reliability, can meet the reasonable
suspicion standard.
232 State v. Gattenby
seizure of a person that is a temporary detention for inves-
tigatory purposes.” State v. Maciel-Figueroa, 361 Or 163,
169-70, 389 P3d 1121 (2017). An officer may lawfully stop a
person if the stop is supported by “reasonable suspicion.” Id.
at 170. As the Supreme Court has explained:
“For police officers to make a stop, they must reasonably
suspect—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. For a
court to determine that an investigative stop was lawful
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 circumstances existing at the time of the
stop.”
Id. at 182. Reasonable suspicion “is a relatively low barrier.”
State v. Jones, 245 Or App 186, 192, 263 P3d 344 (2011),
rev den, 354 Or 838 (2014). It is a “less demanding standard
than probable cause.” State v. Brown, 298 Or App 771, 775,
446 P3d 568 (2019).
For the reasons that follow, we conclude that the
trial court erred in denying defendant’s motion to suppress,
because the facts to which Conwell pointed supported a rea-
sonable suspicion that a crime had been committed but did
not support a reasonable suspicion that defendant had com-
mitted the suspected crime.
We first address whether Conwell had reasonable
suspicion to believe that a crime had occurred. Defendant
argues that, because the caller had not actually “seen any-
thing physical” and because officers had not yet arrived on
scene to corroborate the woman’s allegation, it was unrea-
sonable for Conwell to suspect that a crime had occurred at
all. But the facts to which an officer points do not need to
conclusively prove illegal activity. State v. Bond, 189 Or App
198, 203, 74 P3d 1132 (2003), rev den, 336 Or 376 (2004).
An officer’s suspicion that a crime has been committed can
be reasonable even though the officer’s suspicion could be
Cite as 301 Or App 229 (2019) 233
wrong or there are possible noncriminal explanations for
the facts observed. Id.Here, Conwell’s suspicion that a crime had been
committed was reasonable. The caller reported a woman
screaming and alleging that she had just been “choked out.”
Even though the veracity of the woman’s allegations had not
been confirmed, Conwell could reasonably suspect a crime
had been committed despite the possibility of an alterna-
tive, noncriminal explanation for the facts known to him at
the time of the stop.
In support of his argument, defendant relies heav-
ily on Maciel-Figueroa, 361 Or 163. In that case, the offi-
cers suspected that “general ‘criminal activity’ ” could have
occurred. Id. at 181. Their suspicion was based on a report
that someone had been “yelling and threatening to break
things” inside a house. Id. at 166-67. At the pretrial hearing,
the officers did not point to any specific and articulable facts
to support the inference that the defendant had actually bro-
ken anything or that he may have harmed another person’s
property or harmed or threatened to harm another person.
Id. at 185. In other words, the facts known to the officers at
the time of the stop were insufficient to support a reasonable
suspicion that a crime had been committed at all, as evi-
denced by the officers’ inability to point to a specific crime
or type of crime that they suspected the defendant to have
committed. The court concluded that there were not “suffi-
cient specific and articulable facts * * * that would support
an inference that defendant had committed a crime.” Id. at
186.
Here, unlike in Maciel-Figueroa, Conwell could, and
did, point to a specific crime that he suspected defendant
had committed. Indeed, Conwell testified that he believed
that the crime of strangulation had occurred based on the
caller’s report of a woman yelling and saying that she had
just been “choked out.”
Nevertheless, we conclude that the motion to sup-
press should have been granted here, because Conwell did
not have reasonable suspicion that defendant had commit-
ted the suspected crime. That is so because Conwell did not
234 State v. Gattenby
point to any specific and articulable facts that supported
a reasonable inference that defendant was the person who
had purportedly “choked out” the woman. An officer cannot
infer that a person has committed a crime from behavior
that is “not too remarkable.” Cf. State v. Valdez, 277 Or 621,
628, 561 P2d 1006 (1977) (concluding that an officer’s obser-
vation of “persons who ‘didn’t look right’ putting a paper bag
into the trunk of an automobile” was insufficient to support
reasonable suspicion that a crime had occurred).
Here, Conwell testified that he suspected defendant
had committed the alleged crime because the 9-1-1 caller
reported seeing defendant walking away from a “crowd” of
people gathered at the scene and getting into a car. Walking
away from a crowd gathered around a scene and getting into
a car is “not too remarkable.” Significantly, the 9-1-1 caller
never reported having seen defendant choking or even touch-
ing the woman who yelled that she had been “choked out.”
The caller, in fact, reported that he had not “seen anything
physical.” Conwell testified that he “reasonably believed that
our caller would not report a single male getting into the
driver’s seat of a certain vehicle with a plate number unless
he was somehow involved, i.e., as a witness [who] walked
out of wherever this choking may have occurred or some-
how associated with it.” But that supposition regarding the
caller’s intentions does not provide specific and articulable
facts giving rise to the reasonable inference that defendant
had committed a crime. It does not rely on any specific fact
observed by the caller about defendant’s conduct save the
fact that the caller observed defendant walking away—not
even running—from a crowded scene.
The caller further reported that defendant drove
away from the scene. The caller described defendant’s vehi-
cle and provided its license plate number. He also reported
the street name and the direction in which defendant was
driving. That information helped Conwell locate defendant
to stop him. But that information also did not give rise to a
reasonable inference that defendant had committed a crime.
As noted, Conwell inferred that the caller would not have
given the identifying information about defendant and his
vehicle unless the caller suspected defendant had commit-
ted the crime that the caller was reporting. Even if it were
Cite as 301 Or App 229 (2019) 235
reasonable for Conwell to infer that the caller suspected
defendant had committed the crime, it would still be unrea-
sonable for Conwell to assume that the caller’s suspicion was
reasonable without any specific and articulable facts from
the caller, which are absent from the record. Therefore, the
trial court’s conclusion that Conwell had reasonable suspi-
cion to stop defendant was erroneous.
Finally, and for the first time on appeal, the state
argues that, even without any reasonable suspicion that
defendant had committed a crime, we should affirm the
trial court’s ruling on the alternative basis that Conwell
could stop defendant because Conwell reasonably believed
that defendant was a potential material witness to a crime.
See Outdoor Media Dimensions Inc. v. State of Oregon, 331
Or 634, 659-60, 20 P3d 180 (2001) (explaining factors for an
alternative basis for affirmance). The state relies on State v.
Fair, 353 Or 588, 609, 302 P3d 417 (2013), which articulated
the constitutional requirements for the “stop and temporary
on-the-scene detention of a likely material witness.” We note
that, here, Conwell stopped defendant away from the scene
of the crime.
We decline to reach the state’s alternative argu-
ment for affirmance because we conclude that defendant
might have developed a different record in the trial court
had the state either raised Fair specifically or argued more
generally that the state could temporarily detain defendant
as a likely material witness to the choking incident. In Fair,
the Supreme Court concluded that a
“stop and temporary on-the-scene detention of a likely
material witness will be constitutional if: (1) the officer rea-
sonably believes that an offense involving danger of forc-
ible 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.”
Id. The court noted that it did not “foreclose refinement”
of those factors “in future cases involving other factual
circumstances.” Id. Here, the state’s argument calls for a
236 State v. Gattenby
possible extension of Fair beyond “on-the-scene” temporary
detentions to a stop that occurred away from the scene. The
state’s argument under Fair raises a number of issues that
may have caused defendant to create a different record in
the trial court. Had the issue been raised below, defendant
may have sought to establish whether Conway had effec-
tively already obtained defendant’s identity before the stop
by at least confirming the license plate of the car that left
the scene; whether other witnesses at the scene had been
interviewed to identify the alleged perpetrator or the facts
of the incident; and whether the officer could reasonably con-
tact and interview defendant through other means to obtain
an account of the suspected crime without stopping defen-
dant’s car away from the scene. We do not conclude whether
the answers to these questions would have been conclusive
either way, but, at a minimum, they would have informed
the analysis regarding whether to extend the rule in Fair.
We therefore decline to reach the issue because defendant
“might have created a different record below had [the state]
raised that issue.” Outdoor Media Dimensions Inc., 331 Or at
660 (emphasis in original).
In sum, even though Conwell reasonably suspected
that a crime had occurred, he did not have reasonable sus-
picion that defendant had committed the suspected crime.
Therefore, the trial court erred in denying defendant’s
motion to suppress.2
Reversed and remanded.
2
Because defendant’s appeal arises following his conditional guilty plea that
was entered after the trial court denied his motion to suppress, we do not need
to engage in a harmless-error analysis. State v. Leach, 294 Or App 639, 646, 432
P3d 310 (2018).