State v. Payne

                                       672

   Argued and submitted May 6, 2020, affirmed April 14, petition for review
                   denied August 26, 2021 (

)


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                      MICHAEL ALLEN PAYNE,
                         Defendant-Appellant.
                      Baker County Circuit Court
                         17CR84874; A167457
                                    

     Defendant appeals from a judgment of conviction for six offenses stemming
from his refusal to comply with an officer’s order to remain at the scene of a stop,
subsequent altercation with officers, and drugs that were recovered at the scene.
He argues that the trial court erred in denying his motion to suppress evidence
obtained during the encounter because he was unlawfully seized at the outset
when the officer ordered him to show his hands. As a result, he argues, the officer’s subsequent orders and arrest were unlawful, meaning that the trial court
also erred in denying his motion for judgment of acquittal on the charges of interfering with a peace officer and third-degree escape. The state responds that the
officer’s initial order was lawful because it was prompted by a reasonable officer-safety concern. Held: The officer’s initial order was lawful under the officer-safety
doctrine. Defendant was seized when police stopped the car in which he was a
passenger because the circumstances would have communicated to a reasonable person that the officer’s show of authority extended to him. At that point,
although defendant’s own conduct did not give rise to a concern for officer safety,
the officer’s safety concerns were reasonable under the totality of the circumstances. Because the order for defendant to show his hands was a reasonable
response to those concerns, defendant was lawfully seized.
    Affirmed.



   Gregory L. Baxter, Judge.
   David Sherbo-Huggins, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
Cite as 

 (2021)   673

  KAMINS, J.
  Affirmed.
674                                                          State v. Payne

           KAMINS, J.
          Defendant, a passenger in a vehicle that was
stopped after eluding the police, appeals from a judgment
of conviction after a jury trial for a number of crimes stemming from defendant’s refusal to comply with an officer’s
order to remain at the scene of the stop, subsequent altercation with officers, and drugs that were recovered at the
scene. Defendant contends that he was unlawfully seized
at the outset of the encounter, meaning that the evidence
obtained should have been suppressed and that he should
have been acquitted of charges stemming from disobeying
the order effectuating the unlawful seizure and the charges
stemming from the subsequent physical altercation with the
officers.1 We conclude that defendant was lawfully seized
when the vehicle in which he was a passenger was stopped
and therefore affirm.
         We review a trial court’s denial of a motion to suppress for legal error, and we are bound by the trial court’s
findings of historical fact as long as there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 

, 

 (1993).
Similarly, we also review the denial of a motion for a judgment of acquittal for legal error, and we consider the facts in
the light most favorable to the state and draw all reasonable
inferences in the state’s favor. State v. Lupoli, 

, 

 (2010). We begin with the operative facts,
described with these standards in mind.
        Baker City Police Officer Smith was on patrol at
around 11:20 p.m. on December 23, 2017, when he noticed a
car driving with an obscured license plate. Smith activated
his overhead lights and attempted to stop the car, but, after
slowing briefly, the car sped back up to between 30 and 35
miles per hour. Smith turned on his spotlight and sirens
and pursued the car. Through the spotlight illuminating the

     1
       Defendant also argues that the trial court committed plain error in
instructing the jury that it could return a nonunanimous verdict, despite the fact
that the jury’s verdicts were unanimous. This argument has been foreclosed by
State v. Chorney-Phillips, 

, 

 (2020) (holding that error
in instructing the jury that it could return nonunanimous guilty verdicts did not
require reversal of convictions rendered by unanimous guilty verdicts).
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 (2021)                                             675

compartment, Smith could see defendant—the passenger in
the car—making “very, very rapid movements,” including
a lot of movements around the floorboard, all around the
side, and “leaning over towards the driver, yelling, talking,
something like that, seemed very frantic.” Smith drove up
next to the vehicle as if performing a “pit maneuver” and
motioned for the car to pull over. The car slowed down so
Smith “backed off, thinking maybe they’d stop.” Instead of
stopping, however, the car again sped up. Smith attempted
the same tactic, again pulling up and flanking the car, and
again, the car slowed until Smith backed off, only to speed
up again.
        The pursuit lasted between one-third and threefourths of a mile, at which point the car made a left turn off
the main road into a large industrial site that Smith knew
to be frequented by cars and campers occupied by people
engaged in drug use. Smith followed as the car traveled
between one-eighth and one-quarter of a mile down a long
driveway, finally stopping in front of the shop and on the
other side of a large log pile that hid the main road from
view.
          Smith testified that he was “very concerned” with
the fact that the driver was “taking [him]” to this secluded
site and he was “more concerned” with the passenger than
the driver based on the passenger’s frantic movements. He
further testified that once a stop involves an attempt to
elude the officer, it is no longer “routine.” He had received
training on the correlation between attempts to elude and
officer shootings, and that the nature of an elude is inherently dangerous to an officer because the driver has already
decided to disobey a police officer rather than stop and take
a ticket. Consistent with this training, once the car stopped,
Smith immediately got out of his car and held the car at
gunpoint while he waited for the cover officer.2
        At the same time that Smith drew his gun, defendant
got out of the car. Smith ordered the driver and defendant

    2
      Although Smith testified that he recognized the driver “right away” as
someone whom Smith had recently learned had said that he “was going to make
the police shoot him before going back to jail,” it is not clear from the record
whether he recognized the driver before or after he drew his gun.
676                                            State v. Payne

to stay where they were and show him their hands. The
driver remained in the car and placed his hand on the window, but defendant refused and attempted to leave. Smith
told defendant that he was under arrest and that he was
being detained because he was “part of this felony incident.”
Defendant was angry and yelling at the officer while reaching back into the car to remove two bags. He took the bags
and began walking away from the vehicle, in the direction
of Smith’s patrol car.
         During this encounter, Baker County Sheriff’s
Deputy Maldonado arrived on the scene. When Maldonado
attempted to handcuff defendant, defendant dropped the
bags he was carrying and “square[d] off” with Maldonado.
They struggled, and an altercation ensued. Police subsequently deployed a drug detection dog on the bags that
defendant had dropped, and, after the dog alerted, obtained
a search warrant and found 50 grams of methamphetamine
in one of defendant’s bags. Defendant was charged with
interfering with a peace officer, ORS 162.247; third-degree
escape, ORS 162.145; resisting arrest, ORS 162.315; fourthdegree assault, ORS 163.160; unlawful delivery of methamphetamine, ORS 475.890; and unlawful possession of methamphetamine, ORS 475.894.
         Defendant moved to suppress all of the evidence
derived from Smith stopping him, including his conduct at
the scene and the drug evidence. Defendant argued that
Smith did not have reasonable suspicion that he had committed or was about to commit a crime, that Smith had therefore seized him unlawfully, and that all evidence derived
from that unlawful seizure must be suppressed. The trial
court denied defendant’s motion, concluding that the seizure
was justified by the officer-safety doctrine and that “the second [defendant] begins to disobey that order, he’s interfering
with a peace officer and at that point he’s subject to not only
stop, but arrest.”
        At the close of the state’s case, defendant moved for
a judgment of acquittal on all six charged counts. To support that motion, he argued that the charges for interfering with a peace officer and escape require that the officer’s
orders and arrest, respectively, be lawful, and neither were.
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 (2021)                             677

The state relied on the officer-safety doctrine to establish
the lawfulness of the officer’s orders. The trial court denied
defendant’s motion, concluding that “a rational trier of fact
could find the essential elements of the crime beyond a reasonable doubt on all six matters.”
         On appeal, defendant assigns error to the denial
of his motion to suppress and for judgment of acquittal.
Defendant argues primarily that he was unlawfully seized
when Smith first pointed his gun at the vehicle and ordered
both defendant and the driver to remain with the vehicle
and show their hands. As a result, defendant argues that he
was entitled to a judgment of acquittal because the initial
order Smith gave seizing him was not lawful so defendant
did not commit interfering with a peace officer for disobeying it, or third-degree escape by attempting to leave the
scene.
         In response, the state argues that Smith’s initial
order seizing defendant was justified under the officer-safety doctrine and was therefore lawful. Assuming that
the initial order was lawful, the state asserts that defendant’s subsequent arrest was also lawful, that the evidence
of defendant’s conduct and the drugs found in his bag was
properly admitted, and defendant was not entitled to a judgment of acquittal on the charge of either interfering with a
peace officer or third-degree escape.
           To resolve this issue, we must answer a threshold
question: Was defendant lawfully seized? If the answer is
yes, then the officer was authorized to order him not to leave
and arrest him for refusing to comply. Defendant’s decision
to disobey that lawful order and leave the scene despite the
officer’s attempt to arrest him would constitute the crime
of interfering with a peace officer and third-degree escape,
justifying the denial of his motion for judgment of acquittal. If, however, the answer is no, then the denial of defendant’s motion for judgment of acquittal may require reversal. See State v. Kreis, 

, 

(2019) (holding that an order that restrains an individual’s
liberty in violation of Article I, section 9, is not a “lawful
order” for purposes of “the crime of interfering with a peace
officer”).
678                                                             State v. Payne

         Before we can answer even our threshold question,
however, we must first cross another threshold: When was
defendant seized in the first place? For purposes of Article I,
section 9, of the Oregon Constitution, 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,

, 

 (2019). The parties agree that
defendant was seized at the point that the officer ordered
him not to leave and to show his hands. However, at the
point the officer issued that order, we conclude that defendant was already seized. That is so because, under these circumstances, defendant was seized when the officer stopped
the car in which he was a passenger.3
          Passengers in cars that are stopped for traffic violations are not themselves automatically stopped for purposes
of Article I, section 9. State v. Stevens, 

, 

 (2018). Unlike the federal constitution, the Oregon
Constitution does not contain a “categorical” rule that such
passengers are seized. 

 Despite the absence of a categorical rule, however, the circumstances of the stop may effectuate a seizure of both driver and passenger. A passenger
is seized when police stop a car if there is “something more
than the bare fact that the driver was pulled over for a traffic violation.” State v. T. T., 

, 

(2021).
         The need for “something more” stems from the
courts’ rationale behind the absence of a categorical rule
in Oregon’s constitution. Our approach is premised on “the
proposition that the passengers in a car stopped for a traffic
or criminal offense would not understand that the officer’s
show of authority in stopping the driver extended to them.”
Stevens, 

. The theory goes that a passenger is
typically unaffected by an officer’s concern over the driver’s

    3
      The order to show defendant’s hands came seconds after the car was
stopped. Because the totality of the circumstances was the same at both points in
time, our analysis of the legality of the seizure would not be different if the order
had effectuated the seizure.
Cite as 

 (2021)                                 679

traffic infraction. If an officer stops a driver for failing to use
a turn signal, the passengers in that vehicle would not think
that the officer was concerned with them, let alone exercising a “show of authority” that “extended to them.” 

          To determine whether there is the “something
more” sufficient to convey that the police are exercising
their authority to detain the passenger, we look to the totality of the circumstances. Id.; Arreola-Botello, 

.
In light of those circumstances, including the manner of
the stop and the type of questions or physical acts by the
officer, we evaluate whether a reasonable person would
“understand that the officer’s show of authority in stopping
the driver extended to them or that the officer was independently restricting their movement apart from the stop
of the driver.” T. T., 

. If passengers, under
the totality of the circumstances, would understand that the
officer’s show of authority in stopping the driver extended to
them or that the officer was independently restricting their
movement apart from the stop of the driver, the passenger
is seized. Id.; see also State v. Almahmood, 

, 

 (2021) (“In the end, the ‘was it a seizure?’ question often is framed in terms of whether a reasonable person in the defendant’s position would have felt
free to leave or to otherwise terminate the encounter with
officers.”).

         Here, “something more” accompanied the officer’s
stop of the car in which he was a passenger such that defendant would understand that the officer’s show of authority
extended to him. Unlike a standard traffic stop, the driver of
this car, upon observing the red and blue lights in the rearview mirror, did not, in fact, stop. The car initially slowed
down as if to pull over, but then sped up instead. During the
course of the pursuit, the officer shined a spotlight inside
the passenger compartment, illuminating the compartment
and observing the passenger. The officer turned on his siren
and, as if he were performing a “pit maneuver” drove up
alongside the car to motion the car to pull over—twice. Such
conduct would likely “communicate to the occupants of the
car that the show of authority was directed at both of them.”
State v. Soto-Navarro, 

, 

680                                            State v. Payne

(2021) (observing as much about an officer’s “flanking” of a
car).

         When the car finally did stop, the nature of the
stop was also critically different from a routine traffic stop:
it did not pull over to the side of the road. Rather, the car
made a left turn off the road and drove approximately one-eighth to one-quarter of a mile down a long driveway into
a secluded area blocked from view of the road. Given the
concerns posed by the situation, the officer drew his gun on
the vehicle. These shows of authority, which included pulling alongside the vehicle to force it to pull over or immediately drawing a gun upon the car to prevent occupants from
leaving the vehicle, could not practically be limited to the
driver. Instead, they extended to all occupants of the car,
effectuating a seizure of the passengers and driver alike.
And, under the totality of these circumstances, a reasonable
person would not feel free to leave.

         Now that we know when defendant was seized—
when the car in which he was a passenger was stopped—
we must next consider whether such a seizure was lawful.
There is no debate that the officer could stop the car, so the
parties’ dispute centers on whether the officer could lawfully
stop the passenger. The parties agree on appeal—correctly,
in light of the concession on the matter during the suppression hearing—that the officer lacked reasonable suspicion at
the time of the seizure that the passenger had committed a
crime.

         The state contends instead that officer-safety concerns justified the seizure of defendant because the police
reasonably believed that the circumstances posed an immediate threat of serious injury and the action taken was
proportionate to that threat. Defendant responds that the
state’s officer-safety concerns related to the driver’s actions
alone and that there was nothing specific and particular
about the passenger that posed a risk to the officer, meaning that he was free to leave. However, that argument again
presumes that this was a routine traffic stop, where an officer pulls over a car and the driver agrees to be pulled over.
That presumption does not survive here because this was no
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 (2021)                             681

longer a traffic stop, or even a misdemeanor investigation:
this was a felony investigation.
         To determine whether officer-safety concerns justified a seizure, we look to the totality of the circumstances
and evaluate (1) whether “specific and articulable facts”
demonstrate the existence of a “reasonable suspicion on the
part of the officer that a person with whom they are dealing
poses an immediate threat to the officer’s or another person’s safety” and (2) “whether the precautions taken were
reasonable under the circumstances.” State v. Madden, 

, 

 (2018) (internal quotation marks
omitted). The parties’ dispute focuses on the contention that
any officer-safety concerns were limited to the driver so any
subsequent measures should have been so limited as well.
However, that framework again stems from the premise
that the passenger and driver are treated differently from
the outset of the encounter, rather than as part of the totality of the circumstances.
         The totality of the circumstances here indicate that
the officer had an objectively reasonable basis to be concerned for his safety. It was late at night, and the car eluded
multiple attempts by the officer to pull it over, requiring
increasing shows of authority to force the vehicle to stop.
Before stopping, the car drew the officer off the main road,
into a dimly lit, secluded area hidden from view of the road
and known to be a place where drug users congregate and
stay overnight. The officer was outnumbered by the occupants of the vehicle. According to the officer’s testimony,
those actions amount to an elude and are inherently dangerous to the officer. Consistent with his training, he took
action to secure the scene by holding the car at gunpoint
and ordered its occupants to stay with the vehicle and show
their hands while he waited for another officer to arrive.
These officer-safety measures were appropriate to stop the
car and the risk posed by the driver, and it is precisely those
measures that amounted to the show of authority that converted the incident from a routine traffic stop to “something
more.”
         In State v. Miller, the Supreme Court found an
officer-safety concern to be objectively reasonable based
682                                           State v. Payne

largely on the circumstances of a traffic stop. 

, 

, adh’d to as modified on recons, 

, 

 (2018). There, the officer developed reasonable suspicion that the defendant driver was intoxicated. 

 Given the inherent risks involved with administering field sobriety tests to an intoxicated individual, and
the fact that it was late at night, and despite the fact that
defendant had been cooperative and had done “absolutely
nothing” to present a threat to the officer, the court concluded that the officer’s safety concerns were objectively
reasonable. Id. at 378, 386-88. The “nature of the stop”
was “particularly significant” to the analysis, as was the
officer’s training and experience regarding the danger of
a DUII stop. Id. at 386-87. Similarly, the totality of the
circumstances confronting the officer in this case present
an objectively reasonable safety concern, regardless of the
fact that defendant may not have been responsible for those
circumstances.
         According to defendant, however, the officer lacked
a particularized suspicion that he—the passenger—posed
an officer-safety concern and that it was therefore unlawful
to order him to stay. He points to several cases in which we
have held that generalized concerns over a defendant’s conduct, including a defendant engaging in furtive movements
or being in close proximity to criminal activity, do not
amount to reasonable suspicion. See, e.g., State v. Kingsmith,

, 

 (2013); State v. Kentopp,

, 

 (2012). However, those
cases and the analysis employed relate to whether officers
had reasonable suspicion that the defendant had committed
a crime. The reasonableness of an officer’s circumstance-specific safety concern does not turn on whether the officer
had individualized suspicion of each person involved but is
rather based on the totality of the circumstances. Miller,
363 Or at 383 (“For a circumstance-specific perception of
danger justifying a weapons inquiry, the officer’s safety concerns need not arise from facts particular to the detained
individual; they can arise from the totality of the circumstances that the officer faces.” (Internal quotation marks
omitted.)). Cases evaluating whether an officer had reasonable suspicion that a defendant committed a crime are
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of little relevance when evaluating a circumstance-based
officer-safety concern.
         Moreover, accepting defendant’s approach—that, to
detain a passenger, an officer’s safety concerns must arise
specifically out of that passenger’s conduct—runs afoul
of the rationale rejecting blanket rules in these contexts.
See State v. Jimenez, 

, 

 (2015)
(“Although Article I, section 9, does not permit a blanket
assumption that all encounters between police officers and
detained individuals pose dangers that permit routine
weapons inquiries, it also does not per se preclude all such
inquiries.”). Indeed, it is this same rationale that protects
passengers of a traffic stop from an automatic seizure in the
first place: the inquiry is based on the totality of the specific
circumstances of the stop. See Stevens, 

. Being
a “passenger” is not a talisman protecting an ability to walk
away from an otherwise dangerous situation.
         We have recognized other circumstances where
police may have a reasonable circumstance-based fear for
their safety even if there is no articulable fact specific to the
defendant himself. For example, when officers enter a residence to execute a warrant and other occupants are present—
essentially “passengers” in the house—officer-safety concerns permit them to detain the occupants long enough to
ensure both the officers’ and the occupants’ safety. State v.
Swibies, 

, 

 (2002); State v.
Barnett, 

, 

 (1995); see also
State v. Fair, 

, 

 (2013) (allowing,
in certain circumstances, the stop and temporary detention
of a potential material witness to a crime).
         In Madden, the Supreme Court applied this rationale to the question of whether police could seize a person
who was sitting in a parked car outside a “drug house”
where police had arrived to execute a warrant. 363 Or at
716. Despite having no particularized information about the
defendant, the officers knew that the other person in the car
was a known drug user, and the car’s proximity to the house
gave police a reasonable belief that it had “some connection”
to the house. Id. Those facts, coupled with the officers’ need
to quickly secure the scene before entering the drug house
684                                           State v. Payne

where the number of occupants or weapons was unknown,
amounted to a legitimate officer-safety concern justifying
the temporary detention of the defendant until the risk was
mitigated. Id.
         Having concluded that the officer here had an
objectively reasonable safety concern under the totality of
the circumstances, we turn to whether the protective measures taken were reasonable. Id. at 719. Two “principles”
govern that inquiry: “that officer safety measures must be
proportionate and that police officers must have latitude in
deciding how to protect themselves.” Id. at 719-20. The risk
to the officer stemmed from the nature of the felony stop,
the time of night, the fact that the car had lured the officer into a secluded, hidden area, and that he was outnumbered. His response—to order the occupants of the car to
stay there and to point his gun at the vehicle to ensure they
do so—was reasonable to address those risks until the scene
was secured. This was not a case where an officer directed
a passenger out of the car for a search, frisk, or investigative questions. Cf. State v. Rudder, 

, 

 (2009) (recognizing that a “reasonable suspicion that
a suspect might have a weapon … can justify a patdown”
and “that something more—such as, for example, a reasonable belief that the suspect is reaching for that weapon—is
required to justify a more intrusive search”).
         In Madden, the security risk of defendant’s presence near the drug house arose from the officers’ “need to
move quickly for safety reasons, to maintain the element of
surprise, and … their concern that defendant might attack
them with a weapon from behind.” 363 Or at 722. That threat
justified the detention of the defendant “during the narrow
window of time when the police officers were approaching
and securing the house,” but did not allow for his detention
after the house was secured nor did it authorize any questioning. Id. at 723. Here, the officer-safety concerns justified the decision to detain defendant for the narrow period
of time that those concerns were present. We do not have
occasion to pass on whether the officer was faithful to that
limitation because defendant committed crimes at the point
of the seizure.
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         Because the initial seizure of defendant was lawful,
his motion to suppress was properly denied. Moreover, defendant’s refusal to comply with the initial order and subsequent arrest effectuating the seizure constituted the crimes
of interfering with a peace officer and escape. The trial court
correctly denied his motion for judgment of acquittal.
        Affirmed.