State v. Rodriguez

320 Or.App. 1

511 P.3d 424

STATE of Oregon, Plaintiff-Respondent,

v.Sergio Alexis RODRIGUEZ, Defendant-Appellant.

A171770 (Control),, A171771

Court of Appeals of Oregon.

Argued and submitted October 27, 2021.

June 2, 2022

Joshua B. Crowther, Deputy Public Defender, Salem, 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.

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 unrelated 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 suspicion 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 suppress. 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 sufficient evidence in the record. State v. Baker , 350 Or. 641, 650, 260 P.3d 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 presume that the court decided those disputed facts in a manner consistent with its ultimate conclusion. State v. Powell , 288 Or. App. 660, 662, 406 P.3d 1111 (2017), rev. den. , 362 Or. 508, 424 P.3d 725 (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 gangster" 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 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 identified as defendant, who Robinson described as "Mexican or Islander" and dressed in "all blue," exited the front passenger 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 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 apartment." 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 consent 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 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 discuss further below, it is not part of our analysis of whether the police had reasonable suspicion that defendant had committed 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 discovered in the backpack at David's feet. The state also alleged in an unrelated case that defendant had violated the conditions of his second look conditional release based on the same incident. As the case proceeded towards trial, defendant 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 continue 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 reasonable 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 reasonable 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 vehicle. Based on a description of two individuals purchasing guns out of the back of a vehicle that *** had been associated with other criminal activity, given the description 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

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