State v. Elbinger

322 Or.App. 498

521 P.3d 179

STATE of Oregon, Plaintiff-Respondent,

v.Luke Josiah Emery ELBINGER, Defendant-Appellant.

A175045

Court of Appeals of Oregon.

Argued and Submitted August 23, 2022.

October 26, 2022

Mark J. Kimbrell, 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.

Erica L. Herb, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

PAGÁN, J.

Defendant entered a conditional plea of no contest to the charge of unlawful possession of methamphetamine, ORS 475.894 (2019).¹ On appeal, defendant assigns error to the trial court's denial of his motion to suppress, arguing that the methamphetamine was discovered after an unlawful stop. For the reasons discussed below, we agree that defendant was unlawfully stopped under Article I, section 9, of the Oregon Constitution. Therefore, the trial court erred in denying his motion to suppress. We reverse and remand.

We review the denial of defendant's motion to suppress for legal error, and we are bound by the trial court's findings of historical fact if the evidence in the record supports them. State v. Prouty , 312 Or App 495, 496, 492 P.3d 734 (2021). We state the facts, which are undisputed, in accordance with that standard of review.

In December 2019, Albany Police Officer Ard arrested a shoplifter about two blocks from a Fred Meyer store. The arrestee said his name was "Luke" or "Lukese Tucker." Later, when the arrestee was being transported to jail, Ard learned from another police officer that the shoplifter's real name was Morgeson. Ard found a list of items in Morgeson's pocket. Morgeson admitted that he was stealing items for his girlfriend.

While Ard was driving Morgeson back to the Fred Meyer store, Morgeson pointed to a green Subaru in the Fred Meyer parking lot. Morgeson asked Ard to tell its occupants that he had been taken into custody. Ard observed one male and one female sitting in the car, which was backed into a parking space close to an exit from the parking lot.

Ard pulled forward into the parking space next to the Subaru, but he did not block it. Ard greeted the driver—defendant—and he told defendant that the conversation was being recorded. Ard asked, "Does one of you guys belong to Lucas, Lukese?" Defendant, who was sitting in the Subaru, appeared confused. Defendant said that he was Luke, and, while stepping out of the Subaru, asked, "Why? What's up?"

Ard responded, "Who's that guy then that I got in my car? He says his name's Luke."

Defendant could not see who was in the back of the patrol vehicle, so he asked, "What's he look like?" Ard responded, "He's white." Defendant showed Ard his identification. Ard laughed and said, "So you're also Luke. He said to stop by here and let you know he's in custody." Defendant responded, "Oh, ok."

Ard continued, "Were you here shopping with somebody? We're being recorded just so you know." Defendant responded that he was "just the driver." Ard stated, "Well, he was stealing a whole bunch of stuff. That's why he's in the back of our car." Ard repeated that the shoplifter asked him to "stop at that green Subaru," and Ard joked that "you're both Luke, theoretically." Ard asked if the passenger was the shoplifter's girlfriend and, when defendant nodded, Ard indicated that he needed "to talk to her real quick."

Ard walked to the passenger side of the Subaru and asked the passenger if he could talk to her. Her car door was slightly open. Ard asked her to step out, but she remained in the car. Ard communicated via his radio that was "out with the other half of this to the southeast of the gas pumps."

The passenger opened the car door more widely and asked, "What's up?" Ard said, "Do you belong to other Luke?" The passenger said no. Ard asked for identification, but she said that she did not have any. After taking out his notepad and a pen, Ard asked the passenger for her name and date of birth. Ard wrote down the information and conveyed it to dispatch. By that time, defendant was back inside the Subaru on the driver's side.

Ard asked, "What's it like having a birthday next door to Christmas?" The passenger responded, "It sucks." Ard explained that "the guy I have in custody in the back of my car for stealing says that you're his girlfriend and that he was stealing for you and he has a list of things." The passenger asked, "Why would he say that?" Ard responded, "[Because] he doesn't have money to buy you stuff for Christmas?" After a pause, the passenger asked why Ard was running her name. Before Ard could answer, the passenger began to say something but stopped herself.

Next, Ard asked, "So, what brought you guys here today?" After a pause, the passenger replied that they wanted to go shopping. Ard communicated with another person via his earpiece and stated, "Affirm. I'm out with it."² Ard asked both defendant and the passenger whether their contact information was current. They both said yes. Ard asked the passenger for a good contact phone number, which she could not provide. Defendant provided a number and he indicated that it was the passenger's number.

After a pause, Ard stated, "Copy." Ard asked, "So where was Luke, other Luke, supposed to meet you guys?" The passenger responded, "Uh, the car?" Then Ard stated, "Affirm. Occupied twice. One black male. One white female." After another pause, Ard stated, "Yep." At the motion to suppress hearing, Ard explained that he provided the description of the occupants of the Subaru in response to a question from Officer Beckwith, who he was communicating with via radio. Then Beckwith "asked if there was a tall black male with dreadlocks present inside the car. I told him there was."

After another pause, Ard asked, "Were either of you guys in the store today?" The passenger said no, but defendant said, "I went in very briefly and went to the bathroom and came back out." The passenger said that she went to the yogurt shop. Around the same time, Beckwith told Ard that a person matching defendant's description met up with the shoplifter inside the store and was also a suspect. After learning that information, Ard stated, "Copy," and he advised defendant and the passenger of their Miranda rights. Subsequently, the passenger admitted that there were items in the Subaru that had been stolen from the Fred Meyer store. During a search of defendant, police discovered methamphetamine.

In moving to suppress that evidence, defendant argued that he was seized when Ard told defendant that "the person in the back of his patrol vehicle had admitted to shoplifting and identified *** defendant as someone he knew." At the hearing, the trial court heard testimony from Ard and defendant, viewed some of Ard's body camera footage, and heard argument from counsel, before denying the motion. The trial court pointed out that Ard talked to both defendant and the passenger for only 10 minutes, and that Ard spent most of that time with the passenger. The trial court noted Ard's "jovial, self-deprecating" demeanor. The trial court stated that it would send a letter to counsel via email that contained a detailed explanation of its findings. In that letter, the court focused on "the brevity of Officer Ard's encounter with Defendant, Officer Ard's jovial manner, [and] his relative lack of interest in talking with *** Defendant." The trial court issued an order denying the motion. In entering a conditional plea of no contest to the charge of possession of methamphetamine, defendant reserved his right to seek review of the order denying his motion to suppress.

On appeal, focusing on the totality of the circumstances, defendant reiterates that he was unlawfully stopped before Ard formed a reasonable suspicion of his involvement in the shoplifting: "The totality of Ard's conduct—his questions and statements connecting defendant and his passenger to the shoplifter, his positioning outside defendant's passenger door, and his reporting defendant's description to another officer—would have communicated to a reasonable person in defendant's position that he was not free to terminate the encounter." The state contends that defendant was not seized before the officer provided him with Miranda warnings.

Article I, section 9, protects against unreasonable searches and seizures. Although law enforcement officers are not required to justify every encounter with citizens, they must justify a seizure. State v. Backstrand , 354 Or. 392, 399, 313 P.3d 1084 (2013). A seizure can be either a stop, which generally requires reasonable suspicion, or an arrest, which requires probable cause. Id . A seizure occurs when there is " ‘the imposition, either by physical force or through some "show of authority," of some restraint on the individual's liberty.’ " Id. (quoting State v. Ashbaugh , 349 Or. 297, 309, 244 P.3d 360 (2010) ). "For the purposes of Article I, section 9, a seizure occurs when (1) a police officer intentionally and significantly interferes with an individual's liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted." State v. Arreola-Botello , 365 Or. 695, 701, 451 P.3d 939 (2019).

The line separating encounters from seizures is neither bright nor clear and, because of that, our inquiry is "fact-specific and requires an examination of the totality of the circumstances involved." Backstrand , 354 Or. at 399, 313 P.3d 1084. The show of authority must be "something more than just asking a question, requesting information, or seeking an individual's cooperation." Id. at 403, 313 P.3d 1084. Indeed, " ‘law enforcement officers remain free to approach persons on the street or in public...