State v. C. J. G.

                                      706

       Argued and submitted February 28, 2020, reversed and remanded
                             January 27, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                              C. J. G.,
                             aka C. G.,
                        Defendant-Appellant.
                    Jackson County Circuit Court
                        17CR55576; A168295
                                  

    Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS 475.894. Defendant assigns error to the trial court’s denial
of his motion to suppress evidence obtained as a result of an unlawful seizure,
arguing that neither officer safety concerns nor reasonable suspicion justified
his seizure. The state argues that the trial court did not err in denying defendant’s motion to suppress, because defendant’s seizure was justified by both officer safety concerns and reasonable suspicion of a crime. Held: Because the facts,
considered in their totality, do not justify reasonable suspicion that defendant
posed an immediate threat of serious physical injury to the officer—nor do the
facts support a reasonable suspicion that defendant was involved in illegal drug
activity—the trial court erred in denying defendant’s motion to suppress.
    Reversed and remanded.



    Lisa C. Greif, Judge.
   Kyle Krohn, 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.
   Beth Andrews, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    TOOKEY, J.
    Reversed and remanded.
Cite as 

 (2021)                                            707

           TOOKEY, J.
        Defendant appeals a judgment of conviction for
unlawful possession of methamphetamine, ORS 475.894
(2015), amended by Or Laws 2017, ch 706, § 15; Ballot
Measure 110 (2020).1 Before trial, defendant filed a motion
to suppress evidence obtained as a result of a purportedly
unlawful seizure. After the trial court denied that motion,
defendant entered a conditional guilty plea. On appeal, defendant assigns error to the trial court’s denial of his motion to
suppress, arguing that neither officer safety concerns nor
reasonable suspicion of a crime justified his seizure.
         For the reasons that follow, we conclude that neither
officer safety nor reasonable suspicion of a crime justified
defendant’s seizure and, therefore, that the trial court erred
when it denied defendant’s motion to suppress. Accordingly,
we reverse and remand.
                          I. BACKGROUND
         “We review the denial of defendant’s motion to suppress for legal error and, in doing so, ‘we are bound by the
trial court’s factual findings if there is any constitutionally
sufficient evidence in the record to support them.’ ” State
v. Meeker, 

, 

 (2018) (citing
State v. Maciel-Figueroa, 

, 

(2017)). We state the facts from the suppression hearing in
accordance with that standard.
         Medford Police Corporal Oller observed defendant’s
vehicle “kind of creeping in to a parking spot” in front of a
Purple Parrot store around 10 p.m. Oller “observed the vehicle for approximately a minute,” during which the “vehicle
never turned off,” and “[n]o one ever got out of the car.” Oller
had “past experiences in multiple Purple Parrots around
the city” and knew it was “not uncommon” for people to use
or buy drugs in such locations. Oller approached the passenger side of defendant’s vehicle, shined his flashlight inside,
and saw two men, who looked “startled.” Oller “immediately recognized [defendant]” in the driver’s seat. Oller had
    1
      The 2017 and 2020 amendments to ORS 475.894 apply to acts committed
after those committed by defendant and, therefore, do not affect our opinion in
this case.
708                                          State v. C. J. G.

previously “arrested [defendant] for methamphetamines,”
“knew that he carried replica weapons,” and had “heard on
the street” that defendant carried weapons.
         As Oller shined his flashlight, he saw defendant
clutch “a white colored item,” which defendant then “shoved”
into a jacket pocket. Oller believed that the white object was
“some sort of contraband” because “meth pipes are coated in
white residue, bags of methamphetamine are white, bags of
cocaine are white, [and] pills are white.” Oller did not think
that the object was a weapon, but “became concerned about
weapons” when defendant’s hand went into the pocket,
because defendant had “been reported to carry weapons.”
Defendant’s hand remained in his pocket for roughly three
seconds until Oller told him to “[t]ake your hand out of your
pocket.” Defendant complied, but no longer had the white
object in his hand. When defendant’s hand came out of his
pocket, Oller “honestly c[ould]n’t remember” where defendant put his hands but “might have” instructed defendant
to put his hands on the steering wheel.
         After Oller instructed defendant to take his hand
out of his pocket, he observed that the front seat passenger closely resembled a person whom Oller knew to have
an active arrest warrant. Oller called to the passenger by
that person’s name, to which the passenger responded, “No,
that’s not me,” and told Oller his name was Malback. Oller
ran Malback’s name and discovered that he “actually had a
warrant for his arrest.” When a backup officer arrived, Oller
arrested Malback, searched his person, and discovered a
container with heroin residue inside. At some point thereafter, Malback told Oller that defendant “had about a half
gram of methamphetamine.” Based on that information,
Oller seized defendant’s jacket, obtained a search warrant,
and discovered a pipe in the pocket, which tested positive for
methamphetamine. Defendant was subsequently convicted
for unlawful possession of methamphetamine, ORS 475.894
(2015).
         Before trial defendant moved to suppress evidence
obtained as a result of an unlawful seizure. In a letter opinion, the trial court denied defendant’s motion, determining,
among other things, that “Defendant was stopped when he
Cite as 

 (2021)                                           709

was told to place and keep his hands on the steering wheel.
That stop was reasonable based primarily on officer safety
concerns.”
         On appeal, neither party disputes the trial court’s
determination that a seizure occurred when Oller told
defendant to place his hands on the steering wheel. Rather,
defendant argues that neither officer safety concerns nor
reasonable suspicion of a crime justified that seizure. The
state argues that the trial court properly denied defendant’s
motion to suppress, because defendant’s seizure was justified by both officer safety concerns and reasonable suspicion
of a crime.2
                            II. ANALYSIS
A.    Officer Safety
         We begin our analysis by examining whether officer
safety justified defendant’s seizure. “In order to be lawful
under Article I, section 9, a warrantless search or seizure
must fall within one of the few established exceptions to
the warrant requirement.” Meeker, 

. One
of those exceptions is the officer safety exception set forth in
State v. Bates, 

, 

 (1987):
     “Article I, section 9, of the Oregon Constitution does not
     forbid an officer to take reasonable steps to protect himself
     or others if, during the course of a lawful encounter with a
     citizen, the officer develops a reasonable suspicion, based
     upon specific and articulable facts, that the citizen might
     pose an immediate threat of serious physical injury to the
     officer or to others then present.”

For the officer safety exception to apply, the state must
prove “not only that the officer subjectively believed that the
defendant posed a threat, but also that the officer’s belief
was objectively reasonable.” Meeker, 

 (citing
State v. Rodriguez-Perez, 

, 

 (2014)).

    2
      On appeal, the state does not argue that the later seizure and search of
defendant’s jacket—which was based on Malbeck’s statements to Oller—was
attenuated from the earlier seizure of defendant, i.e., when defendant was
instructed to place and keep his hands on the wheel.
710                                                       State v. C. J. G.

          In this case, neither party disputes that Oller was
subjectively concerned for his safety. Rather, they dispute
whether Oller’s belief was objectively reasonable. “To be
objectively reasonable, the officer’s safety concerns must
be based on facts specific to the particular person ….”
Rodriguez-Perez, 

 (internal quotation
marks omitted). Our task on review is to determine whether
“ ‘any of the circumstances confronted by the officer either
individually or collectively justify a reasonable suspicion
that the defendant posed an immediate threat to’ ” Oller or
others present.3 State v. Thomas, 

, 

 (2016) (quoting Bates, 

).
           With regard to officer safety, the state contends that,
       “Considering the totality of the circumstances of the
   stop—[1] it was night; [2] defendant was parked in a popular location for drug activity; [3] the passenger in the vehicle was a person with an active warrant; [4] Oller knew
   defendant from a prior arrest; [5] Oller had heard that
   defendant carried weapons; and [6] defendant made a furtive gesture by reaching into his jacket pocket and then
   leaving his hand tucked inside—Oller’s concern for officer
   safety was reasonable.”
We examine those facts individually and then collectively,
and we conclude that they do not justify a reasonable suspicion that defendant posed an immediate threat of serious
physical injury to Oller.
         To begin with, the fact that Oller’s encounter happened at night adds little to justify officer safety concerns.
State v. Blackstone, 

, 

 (2017)
(“[T]he late hour … is definitely a relevant circumstance,
but it is not unlawful to be out late at night, and the hour
alone is not enough to tip the scales.”).
         The fact that defendant was parked in the Purple
Parrot parking lot is also entitled to little or no weight. Oller
testified generically that he had “past experiences in multiple Purple Parrots around the city” and knew it was “not

    3
      The state does not argue—nor does the record show—that Oller reasonably believed that defendant posed an immediate threat of physical injury to any
others present.
Cite as 

 (2021)                             711

uncommon” for people to use or buy drugs in such locations.
But Oller did not articulate specific facts particular to this
location, as is required to support the officer safety exception. At any rate, though “confronting a suspect in a highcrime area can contribute to officer-safety concerns, such a
location has never been regarded as sufficient to support the
officer-safety exception unless there were also a significant
number of other indicia of danger.” State v. Jimenez, 

, 

, aff’d, 

, 

(2015). We do not see such indicia here.
         Similarly, the fact that the passenger, Malback, had
an active warrant did not justify seizing defendant for officer safety reasons. The record reflects that Oller identified
the passenger after instructing defendant to put his hands
on the wheel—i.e., after deciding to seize defendant. Even if
Malback’s active warrant could justify officer safety concerns
about defendant, it could not do so retroactively. See Bates,

 (Officer safety inquiry requires us to analyze
“the circumstances as they reasonably appeared at the time
that the decision was made.” (Emphasis added.)). Moreover,
nothing in the record identifies the basis for Malback’s warrant, much less that the warrant indicated that defendant
posed an immediate threat of physical injury to Oller.
         Oller also testified that he knew defendant from a
past drug arrest and “became concerned” about weapons
because he knew that defendant had “carried replica weapons” and had “heard on the street” that defendant carried
weapons to protect himself. Even coupled with Oller’s knowledge of defendant’s past drug activity, knowledge of defendant’s replica weapons or unattributed assertions “heard on
the street” do not indicate that defendant was dangerous at
the time he was seized. See State v. Steffens, 

, 

 (2012) (“An officer’s knowledge of the defendant’s past conduct is relevant to the officer-safety inquiry;
however, where past conduct is not coupled with any indication that the defendant is currently dangerous, it is unlikely
to be determinative.” (Emphasis in original.)).
        Finally, the fact that defendant reached into a jacket
pocket is not alone sufficient to support officer safety concerns. See Meeker, 

 (“We have emphasized
712                                            State v. C. J. G.

that more than a single suspicious or furtive movement is
necessary to give rise to an objectively reasonable concern
for officer safety.”).
         Considered collectively, we conclude that the foregoing circumstances—defendant’s single movement of reaching into his jacket pocket, in conjunction with all the other
facts identified by the state—do not support a reasonable
suspicion that defendant posed an immediate threat to Oller
at the time of the seizure. See, e.g., 

 (officer safety exception not justified where officer seized defendant by ordering
him to show his hands when defendant was in his car, at
night, in an area frequented by drug users, and made a single suspicious movement).
        We therefore conclude that the trial court erred
when it denied defendant’s motion based on officer safety
concerns.
B.    Reasonable Suspicion of Criminal Activity
         We turn next to examining whether defendant’s seizure was justified by reasonable suspicion of criminal activity. “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, 

, 

 (2019) (quoting Maciel-Figueroa, 

). “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, 

.
         In this case, we do not understand defendant to
dispute that Oller subjectively believed that defendant was
committing a crime. Thus, our task on review is to determine whether Oller’s belief was objectively reasonable under
the totality of the circumstances.
         The state contends that “the seizure was justified
because Oller had an objectively reasonable belief that
defendant was involved in illegal drug activity.” In support
of that contention, the state enumerates the following facts:
Cite as 

 (2021)                                  713

   “[1] Oller knew that the parking lot where defendant was
   parked was a place where it was ‘not uncommon’ for people
   to engage in drug activity”; “[2] defendant also idled in the
   parking lot for over a minute without anyone exiting the
   vehicle”; “[3] Oller had previously arrested defendant for
   crimes related to methamphetamine use”; “[4] defendant
   was startled upon seeing Oller and immediately shoved
   a white object into his jacket”; “[5] Oller believed that the
   white object was contraband because many items of contraband are white”; and “[6] Oller recognized the passenger as
   a person with an active warrant.”
As explained below, we conclude that those facts, considered
in their totality, do not support a reasonable suspicion that
defendant was involved in illegal drug activity.
          Defendant’s presence in a Purple Parrot parking
lot—where it was “not uncommon” for people to engage in
drug activity—is of little consequence here. As noted above,
Oller generically testified that he knew about past drug
crimes at “multiple Purple Parrots around the city,” but he
did not specifically identify defendant’s location as a high
crime area. In any event, “[w]e have repeatedly said that a
person’s presence in a location associated with drug activity is insufficient to support an objectively reasonable belief
that that person is himself or herself engaged in drug activity.” State v. Davis, 

, 

 (2017)
(citation and internal quote marks omitted); see also State
v. Zumbrum, 

, 

 (2008)
(“Neither the late hour nor the high crime nature of the
area tells us whether this defendant is likely to be a criminal.” (Emphasis in original; brackets and internal quotation
marks omitted.)).
         Similarly, the fact that Oller observed defendant’s
car “idl[ing] in the parking lot for over a minute without
anyone getting out” is of almost no consequence. “We are not
prepared to say that all persons who sit in vehicles in parking lots at odd hours of the night or morning thereby render
themselves suspect and subject to being stopped.” State v.
Messer, 

, 

 (1984); see also
State v. Moya, 

, 

 (1989)
(Officers lacked reasonable suspicion for stop where defendant was sitting in a parked car in an area of “extensive
714                                            State v. C. J. G.

drug activity,” “made furtive movements consistent with
drug activity,” “looked surprised to see [the officers],” and
“appeared to move [an] object from her lap into a purse.”).
         Although Oller testified that he had previously
arrested defendant for methamphetamine use, “prior arrests
or convictions—even recent ones—without more, do not provide reasonable suspicion that a person is currently engaged
in illegal conduct.” Steffens, 

; see also State
v. Bertsch, 

, 

 (2012) (“Nor
is it reasonable to believe that a person possesses drugs
because he or she has been convicted of a drug crime in the
past.”).
          The fact that defendant was startled to see Oller
and shoved a white object into his jacket does not support an
objectively reasonable suspicion of criminal activity. Indeed,
“[t]here is nothing remarkable about … appearing startled
at a sudden confrontation with the police.” Moya, 

. And though Oller surmised that the white object was
“some sort of contraband” because “meth pipes are coated in
white residue, bags of methamphetamine are white, bags
of cocaine are white, [and] pills are white,” he did not testify “as to any characteristic of the object itself that made it
reasonable to believe that the object was a weapon or something illicit.” State v. Robles, 

, 

 (2009). And “in the absence of any evidence of criminal
activity, furtive gestures provide no basis for a stop.” State v.
Butkovitch, 

, 

 (1987).
         Finally, as noted above, the fact that Oller subsequently discovered Malback’s active warrant cannot retroactively justify defendant’s seizure. Furthermore, the state
does not explain—nor does the record indicate—how the
passenger’s warrant justifies a reasonable suspicion that
defendant was engaged in illegal drug activity.
         In sum, the foregoing facts—considered in their
totality—do not support an objectively reasonable suspicion that defendant was involved in illegal drug activity
at the time of the seizure. See, e.g., 

 (Officers
lacked reasonable suspicion for stop where two people sat
in a parked vehicle in the drive-up lane of a closed fast
food restaurant at 2:00 a.m. in area of recent burglaries,
Cite as 

 (2021)                            715

and passenger looked “very surprised” to see officers, made
“furtive movement,” and appeared to be “putting something
underneath the seat.”). We therefore conclude that, on this
record, it was error to deny defendant’s motion on those
grounds.
                   III.   CONCLUSION
        We conclude that, because neither officer safety nor
reasonable suspicion justified defendant’s seizure, the trial
court erred when it denied defendant’s motion to suppress
evidence obtained as a result of that seizure. Accordingly,
we reverse defendant’s conviction and remand.
        Reversed and remanded.