State v. Kuehne

                                       698

     Argued and submitted October 31, 2018, affirmed November 27, 2019


                         STATE OF OREGON,
                          Plaintiff-Respondent,
                                    v.
                        GREGORY KUEHNE,
                         Defendant-Appellant.
                       Coos County Circuit Court
                         16CR67858; A164033
                                    

     Defendant appeals a judgment of conviction for one count of possession of
methamphetamine, ORS 475.894. Defendant assigns error to the trial court’s
denial of his motion to suppress evidence, arguing that he was unlawfully seized
when, while he was walking in the travel lane of a rural two-lane county road, a
police officer (1) parked his patrol car partially in the roadway 150 feet in front
of defendant, such that the front of the officer’s patrol car was facing defendant,
(2) activated the patrol car’s rear overhead lights to alert traffic that the roadway
was partially obstructed, and (3) asked defendant whether defendant was high
and what was in defendant’s pocket. Held: The trial court did not err. Considering
the totality of the circumstances in this case, a reasonable person in defendant’s
position would not understand the officer to have intentionally and significantly
restricted, interfered with, or otherwise deprived defendant of his liberty or freedom of movement.
    Affirmed.



    Martin E. Stone, Judge.
   Erin J. Snyder Severe, 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.
   Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Jennifer S. Lloyd, Assistant Attorney General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
    TOOKEY, J.
    Affirmed.
Cite as 

 (2019)                           699

        TOOKEY, J.
        Defendant appeals a judgment of conviction for
possession of methamphetamine, ORS 475.894, arguing
that the trial court erred in denying his motion to suppress evidence. Specifically, defendant argues that the trial
court should have granted his motion to suppress evidence
because he was unlawfully seized under Article I, section 9,
of the Oregon Constitution. For the reasons that follow, we
affirm.
               I. STANDARD OF REVIEW
         “We review the denial of a motion to suppress for
errors of law.” State v. Brown, 

, 

 (2018). “We are bound by the trial court’s express and
implicit factual findings so long as they are supported by
the record.” 

 We state the facts in accordance with our
standard of review.
     II. HISTORICAL AND PROCEDURAL FACTS
         One dark evening, around 5:30 p.m., Coos County
Sheriff’s Deputy Smith was dispatched to a report of a “traffic hazard” created by someone pushing a shopping cart in
the “travel lane” of Libby Lane, a rural two-lane county
road. Libby Lane has no sidewalk and a “very small” shoulder with “not a lot of room on the side of the road.”
         When Smith arrived, he drove past and observed
defendant in the eastbound lane of Libby Lane with a shopping cart. Smith turned his car around and stopped in the
westbound lane, approximately 150 feet away from defendant, such that the front of Smith’s patrol car was pointed
toward defendant. At the section of Libby Lane where
Smith stopped his car, the shoulder was narrow. As a result,
Smith’s car was partially obstructing the westbound lane.
Smith turned on his rear overhead lights to warn traffic
approaching in the westbound lane that the roadway was
partially obstructed. Smith’s rear overhead lights flash red
and blue and would have been visible to someone behind
his car, such as drivers approaching in the westbound lane.
Although Smith’s rear overhead lights were not directed
toward the front of his car, someone in front of Smith’s car,
as defendant was, could see the flashing lights.
700                                                          State v. Kuehne

         After Smith stopped his patrol car, he made contact with defendant “to see what he was doing and if he was
okay,” and “why he was in the middle of the road.”1 Smith
and defendant approached each other, and defendant said
“hi” to Smith. Smith recognized defendant from prior contacts, which, according to defendant, were nonhostile and
“not bad run ins.” Smith recalled that defendant had previously told Smith that defendant uses methamphetamine.
Smith asked defendant, “Are you high?” During the hearing
on defendant’s motion to suppress, Smith explained that he
asked defendant whether defendant was high “because of
[Smith’s] knowledge of [defendant] and [defendant’s] previous admissions to [Smith] of using methamphetamine[,] and
the fact that it was dark and [defendant] was in the middle
of the road pushing a shopping cart.” Defendant told Smith
that he was not high and that the last time he had used
methamphetamine was three weeks earlier.
         As Smith was talking to defendant, Smith noticed
a “large bulge” in the front left pocket of defendant’s pants.
Smith did not know what the bulge was. So, Smith asked
defendant, “What’s in your pocket?” In response, defendant
reached into his pocket and pulled out a “handful of random
items,” including a “very small plastic box that you could see
through.” In the plastic box, Smith could see folds of a plastic
“[Z]iploc baggy.” Smith testified that, based on his training
and experience, he believed the Ziploc bag contained controlled substances.
         Defendant then took the “entire handful of items”
and “crammed them all right back into his pocket.” Smith
told defendant that he had seen the box and asked defendant to take the box back out of his pocket. Defendant slowly
took each individual item out of his pocket until he had
taken everything out of his pocket except for the box and he
denied having the box. Believing that the box contained a
controlled substance, Smith then reached into defendant’s
pocket and pulled the box out. Smith then opened the box. It

     1
       Smith’s subjective intent and state of mind “do not control the analysis,” but
“have some relevance … insofar as they reflect a state of mind that is consistent
with [his] objective actions, his behavior, and the overall context of the encounter.” State v. Backstrand, 

, 414 n 18, 

 (2013).
Cite as 

 (2019)                              701

contained a “crystal substance,” which later tested positive
for methamphetamine.
        Before trial, defendant moved to suppress the methamphetamine evidence and his statements to Smith, arguing, among other points, that the trial court should suppress
the evidence because Smith unlawfully stopped defendant.
The state, for its part, argued, among other points, that
Smith’s contact with defendant was not a stop, but merely
“casual contact.”
         The trial court concluded that Smith did not stop
defendant. It found that defendant “was not walking near
… what would be the fog line” but “was walking … farther out in the roadway.” The trial court next determined
that because Smith would be “somewhat suspicious” about
the judgment of someone who was “pushing a shopping cart
inside the travel lane,” and because Smith recognized defendant as a “methamphetamine user,” Smith could ask defendant, “Are you high?” The trial court also determined that
Smith’s interaction with defendant did not become a stop
when Smith asked defendant, “What’s in your pocket?,” after
noticing the bulge in defendant’s pocket. Finally, the trial
court determined that, based on Smith seeing the plastic
box with the “folding plastic bag” and defendant’s admission
to using methamphetamine three weeks earlier, Smith had
“probable cause to believe [that defendant] was in possession of methamphetamine,” and, accordingly, Smith “could
reach in and … grab [the box] out of [defendant’s] pocket.”
        Defendant waived his right to a jury trial. After the
suppression hearing, defendant was convicted by the trial
court.
                      III.   ANALYSIS
         “Article I, section 9, protects individuals against
unreasonable searches and seizures.” State v. Nelson, 

, 

 (2018). “The Supreme Court
has recognized three categories of police-civilian encounters: (1) a mere encounter; (2) a stop; and (3) an arrest.”
State v. Leiby, 

, 

 (2018)
(citing State v. Backstrand, 

, 

(2013)). “Mere encounters—sometimes referred to as mere
702                                              State v. Kuehne

conversation—are noncoercive encounters that do not implicate Article I, section 9.” 

 Law enforcement officers are
“free to approach persons on the street or in public places,
seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful.” Backstrand, 

(internal quotation marks omitted). “[T]he constitutional
concern is with police-imposed restraints on citizen liberty,
not with limiting contacts between police and citizens.” 

“[N]ot every action by an officer to stop and engage a citizen
is constitutionally cognizable as a seizure.” State v. Fair, 

, 

 (2013).
         “In contrast to mere encounters, both stops and
arrests are seizures for constitutional purposes.” Leiby, 

 (internal quotation marks and brackets omitted). In Backstrand, the Supreme Court explained,
       “What distinguishes a seizure (either a stop or an arrest)
   from a constitutionally insignificant police-citizen encounter is the imposition, either by physical force or through
   some show of authority, of some restraint on the individual’s liberty. The test is an objective one: Would a reasonable
   person believe that a law enforcement officer intentionally
   and significantly restricted, interfered with, or otherwise
   deprived the individual of his or her liberty or freedom of
   movement.”

 (internal quotation marks and citation
omitted).
         “Whether a particular encounter constitutes a stop
is fact-specific and requires an examination of the totality
of the circumstances involved, and we consider all of an officer’s actions as a whole greater than the sum of its parts.”
Nelson, 

 (internal quotation marks and
brackets omitted). “At the very least, to effect a stop, some
exercise of coercive authority by the officer is required.”

 (internal quotation marks omitted). “The officer must
explicitly or implicitly ‘convey to the person with whom he
is dealing, either by word, action, or both, that the person is
not free to terminate the encounter or otherwise go about
his or her ordinary affairs.’ ” 

 (quoting Backstrand, 

). “If, by ‘the content of the questions, the manner
Cite as 

 (2019)                                 703

of asking them, or other actions that police take (along with
the circumstances in which they take them)’ a reasonable
person would understand that an officer is exercising their
authority to detain, the encounter rises to the level of a
stop.” 

 (quoting Backstrand, 

). However, “a
show of authority does not exist simply because police officers convey their official status through uniforms, badges,
or marked cars, or because an individual feels obliged to
cooperate with the officer simply because of the officer’s status.” State v. Radtke, 

, 

(2015) (internal quotation marks omitted). “The fact that the
citizen is discomforted by an officer’s approach and request
for assistance or information—either because the officer is
a known police officer, or because the encounter otherwise
involves inconvenience or annoyance—does not make the
contact a seizure.” Backstrand, 

 (internal quotation marks omitted).
         On appeal, defendant argues that “the totality of
the circumstances would have conveyed to a reasonable
person in defendant’s position that Smith had significantly
deprived him of his liberty or freedom of movement.” In support of that argument, defendant points to Smith’s use of his
patrol car’s rear overhead lights, and contends that,
   “[a]lthough Smith had turned on his rear lights for the purposes of alerting oncoming traffic to his presence, a reasonable person in defendant’s position would have understood
   that the lights were directed [at] him. That is because
   defendant had not indicated that he was in need of assistance and, by parking on the opposite shoulder from defendant, a reasonable person in defendant’s position would not
   believe that Smith had used his lights because of a concern
   that defendant presented a safety hazard to oncoming traffic by being in the roadway.”
(Emphasis in defendant’s brief.)
        Additionally, defendant points to Smith’s conversation with defendant. Specifically, defendant contends that “a
reasonable person in defendant’s position would believe that
he was the subject of a criminal investigation” because
   “Smith never explained that he was there to follow up on
   the report that defendant posed a traffic hazard or warn
704                                           State v. Kuehne

   defendant about that safety problem. Instead, Smith asked
   defendant if he was high and, after defendant denied being
   high and explained that he had not used for three weeks,
   Smith implicitly refused to accept defendant’s explanation
   by inquiring about the bulge in defendant’s pants pocket.”
In defendant’s view, “[a]n officer may convey to a reasonable
person that he or she is the subject of a criminal investigation by asking about criminal conduct and not accepting the
person’s responses to those questions.”
         The state, for its part, contends, among other points,
that defendant was not stopped. In the state’s view, an “officer’s use of emergency flashing lights for safety purposes
ordinarily is not a seizure because a reasonable person
would not understand it to be a significant restriction on
his or her liberty,” and Smith’s inquiries “did not indicate to
defendant that [Smith] would have insisted on an answer
or would not have allowed defendant to leave,” even though
they may have reflected “a subjective belief that defendant
had something illegal on his person.”
         The Supreme Court has observed that the “line
between a mere encounter and something that rises to the
level of a seizure does not lend itself to easy demarcation,”
Backstrand, 

 (internal quotation marks omitted), and this case, to be sure, is a close one. Nevertheless,
considering the totality of circumstances, we conclude that
Smith did not stop defendant prior to defendant pulling the
box containing methamphetamine from his pocket.
          Here, Smith was dispatched because it was reported
that defendant was creating a traffic hazard by pushing a
shopping cart in the travel lane of a rural county road on
a dark evening. Smith parked his car 150 feet away from
defendant, on the opposite side of the road, with the front
of his car facing defendant. Because there was only a “very
small” shoulder along the road, Smith’s patrol car was partially in the westbound traffic lane. Accordingly, Smith activated his rear overhead lights to warn traffic approaching in
that lane that Smith’s car was in the road. Although Smith’s
lights were not directed at defendant and were not used to
“pull over” defendant, defendant could see the lights. Under
the circumstances, Smith’s approach was the only practical
Cite as 

 (2019)                              705

way for Smith to have an exchange with defendant. See Fair,

 (observing that practical realities can inform
what constitutes a “socially intrusive exercise of police
authority”).
        Defendant and Smith then approached each other,
and defendant said “hi” to Smith. Smith recognized defendant from prior contacts, which were nonhostile and “not
bad run-ins.” Knowing that defendant had previously
admitted to using methamphetamine, Smith asked defendant whether he was “high.” When defendant denied being
high, Smith did not press him further. Instead, as they were
talking, Smith noticed a large bulge in defendant’s pocket
and did not know what it was, so Smith asked defendant
what it was.
          In those circumstances, a reasonable person in
defendant’s position would not understand Smith to have
“intentionally and significantly restricted, interfered with,
or otherwise deprived the individual of his or her liberty or
freedom of movement.” Backstrand, 

. A person
seeing light from the back of a police car that is stopped partially in the road 150 feet away on a dark evening, when the
person is in front of the police car and on the opposite side of
the road, would not interpret that light as being “directed”
at them, as defendant contends, but instead would understand the safety necessity to illuminate the vehicle when it
is stopped partially in the road and it is dark outside. See
State v. Blair/Vanis, 

, 

 (2000),
rev den, 

 (2001) (observing overhead flashing
lights on “police and tow vehicles … often are activated”
to alert “other drivers to their presence and to the fact that
a hazard exists at the roadside,” and that “[t]here is nothing uncommon or psychologically intimidating about such a
setting generally”). Furthermore, a person would not understand a police officer’s use of emergency lights for safety
purposes—at least when the officer’s car is parked partially
in the road, on the opposite side of the road, approximately
150 feet away, it is dark outside, and the emergency lights
are not directed at the person but pointed in the other
direction—as an “exercise of coercive authority by the officer,” Nelson, 

 (internal quotation marks
omitted), particularly when the location of the encounter
706                                           State v. Kuehne

necessitates that the officer park the officer’s car partially
in the roadway, see State v. Gerrish, 

, 

 (1991) (officer did not seize defendant,
because a reasonable person would not understand the officer’s actions to be “a significant restriction upon or interference with an individual’s liberty or freedom of movement,”
where the officer had his patrol car’s overhead lights on and
“flagg[ed] defendant down directing him to stop,” so that
the officer could inquire as to whether defendant had “witnessed [a] shooting/robbery” or “possibly find the perpetrator” of that crime, and the officer’s actions “were the only
means available to get defendant’s attention long enough to
request information”).
         Moreover, although Smith’s questions to defendant
may not have been the type of questions that “one private
citizen ordinarily would … ask another,” given the circumstances presented here, the “content of [those] questions did
not cause defendant to be seized.” State v. Ashbaugh, 

, 

 (2010) (emphasis in Ashbaugh)
(the defendant was not stopped when an officer asked her “if
she had anything illegal in her purse,” the defendant replied
that she did not, and the officer then asked the defendant
if he could search her purse). That is because, ordinarily,
“[a]n individual is not stopped … when an officer makes
statements conveying possible suspicion” or when “an officer makes only ‘an inquiry about criminal activity.’ ” Nelson,

 (quoting State v. Allen, 

, 

 (2008) (emphasis in Allen)); see also State
v. Baker, 

, 

, rev den,

 (1998) (the defendant not seized when an officer
saw him coming out of a known “crack house” and asked
him, “So Craig, did you buy any good crack in there?,”
because the officer “asked defendant a question” and “did
not announce that he had seen defendant break the law”).
In that regard, we note that Smith did not directly accuse
defendant of committing a violation or a crime, or make a
statement that was tantamount to an announcement that
he had seen defendant break the law. Nelson, 

 (“[W]hen an officer makes a direct and unambiguous accusation that an individual has committed a violation
or crime, the officer has stopped that individual.” (Internal
Cite as 

 (2019)                              707

quotation marks omitted.)); see also Allen, 

(officer seized the defendant when he told her that he “knew
she was coming from a dope house” and “that if she was
honest and gave [him] the dope [he] would give her a citation,” because the officer’s statements were tantamount to
an announcement that “the officer had just seen defendant
break the law” (emphases and brackets in Allen)). Nor did
Smith communicate to defendant that he was the subject
of a traffic stop. Backstrand, 

 (observing “a
person detained for a traffic offense has a legal obligation to
stop at the officer›s direction and remain; the person may
not unilaterally end the encounter and leave whenever he or
she chooses”).
         Our conclusion that Smith did not “stop” defendant
is reinforced by the location of the encounter. Fair, 

 (“The degree to which law enforcement conduct intrudes
on a citizen’s protected interest in privacy and liberty is significantly affected by where the conduct occurs, such as in
the home, in an automobile, or on a public street.”). Smith
and defendant approached each other on a public road,
where officers are generally “free to approach persons” to
“seek their cooperation or assistance, request or impart
information, or question them.” Backstrand, 

(internal quotation marks omitted). Their encounter did not
take place in a home or other private place. See Fair, 

 (noting that “[a] government intrusion into the home
is at the extreme end of the spectrum” as “[n]othing is as
personal or private” and nothing “is more inviolate”).
         This case is thus distinguishable from State v.
K. A. M, 

, 

 (2017), where the Supreme
Court concluded that “youth was stopped during the search
of a drug house when a detective came upon youth and a
friend in one of the bedrooms, told youth’s friend to ‘stay off
the meth,’ asked them their names, and then asked whether
they had anything illegal on them.” 

. The court
noted that the detective’s statement to youth’s friend—“You
need to stay off the meth”—“effectively accused her of being
on or using methamphetamine,” and observed that ordinarily “police officers do not walk into a person’s bedroom
uninvited or, if they do, not without some explanation as
to why they are there.” 

. It reasoned that the
708                                          State v. Kuehne

detective’s “unexplained entry into that private space”—i.e.,
the bedroom—“and his accusation that [youth’s friend] was
using or had recently used methamphetamine created a
coercive atmosphere that reasonably conveyed that she and
youth were suspected of illegal drug use and were not free
to leave until [the detective] had completed his inquiry.”

.
          The court further explained that “[t]wo other circumstances support that understanding.” 

 First, the
detective “asked whether youth and [youth’s friend] had
anything illegal on them, a question that, given [the detective’s] prior accusation of methamphetamine use, reasonably
added to the coercive pressure.” 

 Second, youth’s friend
“was aware (and so presumably was youth) that, although
[the detective] was the only officer who had come into the
bedroom, other officers were searching through the house.”
The court explained the “officers’ unexplained presence in
the house added to the coercive effect of [the detective’s]
presence in the bedroom.” 

          Here, the encounter between Smith and defendant
took place on a public road, not in a bedroom. Although
officers do not ordinarily enter bedrooms without explanation, it is not out of the ordinary for an officer to approach
someone on a public road to make inquiries. Additionally,
in this case, Smith was the only officer present, while in
K. A. M., the youth was presumably aware that other officers were in the house. 

 Further, in this case, Smith did
not ask defendant whether he had anything illegal on him
after defendant denied being high. And, finally, although
Smith’s inquiry of defendant—“Are you high?”—is somewhat similar to the accusation in K. A. M.—“You need to
stay off the meth,” id.—we do not believe that that inquiry,
in conjunction with the other circumstances present in this
case, transformed what was otherwise a mere encounter
into a stop.
        In sum, the totality of the circumstances in this
case—including (1) the public nature of the encounter
between defendant and Smith, (2) what a person would
understand to be Smith’s use of emergency lights for
safety purposes, (3) that Smith parked 150 feet away from
Cite as 

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defendant, (4) the fact that Smith’s emergency lights, though
visible to defendant, were not directed at defendant or used
to pull defendant over, (5) that Smith’s use of his emergency lights was the only practical way for Smith to have
an exchange with defendant, and (6) that Smith inquired
as to whether defendant was high and about the bulge in
defendant’s pocket, but did not directly accuse defendant of
committing a crime or a traffic violation—did not create a
whole greater than the sum of its parts such that a reasonable person in defendant’s position would believe that Smith
intentionally and significantly restricted, interfered with,
or otherwise deprived defendant of his liberty or freedom of
movement.2
                            IV. CONCLUSION
         In light of our analysis above, considering the totality of the circumstances presented in this case, we conclude
that defendant was not stopped by Smith. Consequently, we
affirm.
           Affirmed.

    2
      Defendant filed memoranda of additional authority in which he contends
that Leiby and State v. Hall, 

, 

 (2005), overruled in part by
State v. Unger, 

, 

 (2014), support his position. We disagree.
    In Leiby, we concluded that the defendant was “seized” when an officer
engaged in what we characterized as a “dogged pursuit of defendant,” and then,
when the defendant finally stopped, the officer asked the defendant, “[i]s there
any reason or do you want to tell me why you’re trying to avoid me?” 293 Or App
at 298. We noted that the “choice of the word ‘avoid’ would strongly imply to a reasonable person in defendant’s situation that defendant had a duty or obligation to
stop and interact with [the officer],” and that such “a phrase, when coupled with
the obvious and open following of defendant can undermine a reasonable person’s
belief that they have an option other than remaining and answering the officer’s
questions.” Id. In this case, Smith, unlike the officer in Leiby, did not engage in a
“dogged pursuit” of defendant. Nor did Smith ask a question similar to that asked
by the officer in Leiby. For that reason, Leiby does not help defendant.
     In Hall, the Supreme Court concluded that an officer’s encounter with the
defendant constituted a stop where, among other facts, the defendant was aware
that the officer was investigating whether the defendant was the subject of any
outstanding warrants. 

. The court reasoned that it was “difficult to
posit that a reasonable person would think that he or she was free to leave at a
time when that person is the investigatory subject of a pending warrant check.”

 In this case, Smith, unlike the officer in Hall, did not conduct a warrant check,
nor is there evidence in the record indicating that a reasonable person in defendant’s position would have thought Smith was doing so. For that reason, Hall
does not help defendant.