State v. Hollins

312 Or.App. 682

493 P.3d 535

STATE of Oregon, Plaintiff-Respondent,

v.Curtis Lee HOLLINS, Defendant-Appellant.

A167518

Court of Appeals of Oregon.

Argued and submitted October 15, 2019.

June 30, 2021

Mark 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.

Dashiell Farewell argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Hannah K. Hoffman, Assistant Attorney General.

Before DeHoog, Presiding Judge, and Mooney, Judge, and Kamins, Judge.^*

DeHOOG, P. J.

Following the denial of his motion to suppress evidence obtained during a consent search, defendant entered a conditional guilty plea to felon in possession of a restricted weapon, ORS 166.270, reserving his right to appeal the trial court's ruling. On appeal, defendant argues that the officer lacked reasonable suspicion to initiate the stop that led to his consent. The state responds that the officer's actions were supported by reasonable suspicion, and, in the alternative, that reasonable suspicion was not required, because the encounter between the officer and defendant was not a seizure as a matter of law. As explained below, we assume without deciding that defendant was seized by the time the officer began questioning him, and we conclude that the officer had reasonable suspicion to detain defendant at that time. We therefore affirm.

We review a trial court's denial of a motion to suppress for legal error. State v. Taylor , 308 Or. App. 61, 62, 479 P.3d 620 (2020) (citing State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017) ). "We are bound by the court's explicit and implicit factual findings if there is constitutionally sufficient evidence in the record to support them." Taylor , 308 Or. App. at 62, 479 P.3d 620. We state the undisputed facts from the suppression hearing in accordance with that standard.

At about 2:00 p.m. on a Monday, Officer Boyd was on patrol when he saw defendant conversing with a woman in a parking lot near an Albertson's grocery store and several other establishments. One of the other businesses that shared the parking lot was a "Purple Parrot," a bar and gambling establishment. The Purple Parrot stood out to Boyd because he had personally been involved in cases there, many of which included drug or weapons offenses. Boyd testified that, as a general matter, "Purple Parrots are hot spots for the police department," and, at this particular Purple Parrot, he had arrested people for various offenses—both inside and in the parking lot—about every other week.

Boyd noticed that the pair was located in between the Purple Parrot and some restaurants and saw them engage in "some sort of hand-to-hand transaction." More specifically, Boyd saw defendant and the woman converse, engage in a shake or a slap of hands, and then part ways. Boyd saw the woman walk towards the Purple Parrot while defendant walked towards a Subway sandwich shop.

According to Boyd, over the course of a year, he had observed "[m]aybe ten" hand-to-hand drug transactions. Boyd testified that, based on his training and experience with drug deals, including training with the Medford Area Drug Gang Enforcement (MADGE) team, "often when drug deals happen, like hand-to-hand transactions, there's a little bit of conversing, there's either like a shake of the hand or a slap, and then [they] ultimately go their separate ways." Boyd explained that defendant and the woman had engaged in exactly that type of behavior.

Upon observing that conduct, Boyd stepped out of his patrol car to contact defendant. Boyd called out to defendant, "Hey, dude. Let me chat with you for a second." Defendant started to walk towards Boyd, and Boyd noticed that defendant was holding some cash in his hand. Boyd testified that the cash "kind of enhanced [his] reasonable suspicion of what [he had] observed." Boyd asked defendant what he and the woman were doing, and defendant said that he "just gave her a couple dollars to go play the game." Boyd then asked defendant if they had exchanged any drugs or anything like that, and defendant said "No." Next, Boyd asked defendant if he could "take a peek" at defendant's identification and asked if he was on probation. Defendant provided his identification and informed Boyd that he was on probation and in good standing. Boyd ran defendant's name through dispatch and ran a warrants search, which confirmed that defendant was on felony probation for weapons and narcotics offenses. During that time, Corporal Shilder arrived at the scene as a cover officer.

Next, Boyd asked defendant for consent to search "his wallet and pockets just to verify that he didn't have any outstanding drugs [sic ] or something of that nature on him." Defendant gave Boyd his consent to a search, and Boyd discovered a "black leather sap," a spring-assisted folding knife, and a pocketknife in defendant's pockets. Defendant was subsequently arrested for a probation violation, and the state charged him with two counts of felon in possession of a restricted weapon, ORS 166.270.

Defendant moved to suppress the evidence that Boyd had obtained in the course of his consent search, contending that it was the product of an unlawful seizure. Defendant argued that Boyd lacked reasonable suspicion to detain him for investigative purposes and therefore had violated his rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Specifically, defendant contended that "[u]nder the totality of the circumstances Officer Boyd did not possess objective reasonable suspicion that the crime of [d]elivery had just occurred." The state argued that Boyd had reasonable suspicion for the stop because he "saw a hand-to-hand transaction, saw that it involved cash, [and it was] in the vicinity of an area that's a high crime area." According to defendant, however, Boyd had no reason to associate him with the Purple Parrot, and the potentially innocuous hand-to-hand transaction that Boyd had seen was not enough to support reasonable suspicion. The trial court agreed that Boyd's conduct constituted a stop, but it denied defendant's motion to suppress, making no express findings. Thereafter, defendant entered a conditional plea of guilty to Count 1, reserving his right to challenge the court's ruling on appeal; Count 2 was dismissed.

On appeal, defendant contends that the trial court erred in denying his motion to suppress. Defendant reprises the arguments that he made to the trial court and contends that Boyd lacked reasonable suspicion to seize him. In response, the state maintains that the trial court correctly denied defendant's motion because Boyd's actions were supported by reasonable suspicion. The state alternatively contends that reasonable suspicion was not required, because, as a matter of law, the encounter between Boyd and defendant was not a seizure. For purposes of this opinion, we need not determine whether the trial court correctly concluded that defendant was seized. Rather, we assume, without deciding, that Boyd seized defendant and analyze whether that detention was supported by reasonable suspicion.

Under Article I, section 9, of the Oregon Constitution, an officer may stop a person to investigate "if the officer has ‘reasonable suspicion’ that the person has committed or is about to commit a crime." State v. Miller , 363 Or. 374, 379, 422 P.3d 240 (2018). "An officer has reasonable suspicion when the officer ‘can point to specific and articulable facts that give rise to a reasonable inference that the defendant committed or was about to commit a specific crime or type of crime.’ " State v. Kreis , 365 Or. 659, 665, 451 P.3d 954 (2019) (quoting Maciel-Figueroa , 361 Or. at 165, 389 P.3d 1121 ); see also State v. Walker , 277 Or. App. 397, 402, 372 P.3d 540, rev. den. , 360 Or. 423, 383 P.3d 865 (2016) ("[R]easonable 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." (Quoting State v. Holdorf , 355 Or. 812, 829, 333 P.3d 982 (2014).)). "The officer must have a subjective belief that the person stopped has committed, or is about to commit, a crime, and that belief must be objectively reasonable under the totality of the circumstances." Kreis , 365 Or. at 665, 451 P.3d 954. In our review, we consider each of the specific facts articulated by the officer, individually and together, to determine as a matter of law whether the officer's subjective belief was objectively reasonable. State v. Bowen , 308 Or. App. 505, 509, 481 P.3d 370 (2021).

In this case, defendant does not dispute that Boyd subjectively believed that he had committed a crime. And, in accordance with our standard of review, we presume that the court implicitly found that the subjective component of the reasonable suspicion standard had been met here, i.e. , that Boyd subjectively believed that defendant had engaged in a drug transaction. Taylor, 308 Or. App. at 66, 479 P.3d 620. Focusing on the objective component of reasonable suspicion, defendant argues that it was not objectively reasonable for Boyd to suspect that defendant was involved in a drug transaction based on "a conversation and hand-to-hand exchange between two individuals that [Boyd] did not know, in a parking lot associated with multiple legitimate businesses, and in broad daylight." In support of its responsive argument that defendant's seizure was justified, the state points to the following facts:

"(1) Officer Boyd made drug arrests at the Purple Parrot every other week; (2) Officer Boyd had specialized training to identify hand-to-hand transactions and had worked with the Medford drug task force; (3

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