State v. Hollins

                                      682

        Argued and submitted October 15, 2019, affirmed June 30, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      CURTIS LEE HOLLINS,
                        Defendant-Appellant.
                    Jackson County Circuit Court
                        17CR75575; A167518
                                   

     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. Held: The Court of
Appeals assumed, without deciding, that defendant was seized by the time the
officer began questioning him and concluded that the officer had reasonable suspicion to detain defendant at that time.
    Affirmed.



    Timothy Barnack, Judge.
   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.
    Affirmed.
______________
   * Kamins, J., vice Hadlock, J. pro tempore.
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 (2021)                              683

        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, 

, 

 (2020) (citing State v. Maciel-Figueroa, 

, 

 (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, 

. 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
684                                          State v. Hollins

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
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 (2021)                            685

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.
686                                            State v. Hollins

          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, 

, 

 (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, 

, 

 (2019) (quoting
Maciel-Figueroa, 

); see also State v. Walker, 

, 

, rev den, 

 (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, 

, 

 (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, 

. 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, 

, 

 (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, 

. 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:
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   “(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) he saw a hand-to-hand transaction that appeared consistent with what he
   had learned from his training; (4) he saw defendant with
   a handful of cash immediately after the transaction; and
   (5) the transaction occurred in a high-crime area.”
Our task is to determine whether those facts, when viewed
in their totality, objectively support Boyd’s suspicion that
defendant had engaged in a drug transaction. We conclude
that, although none of the facts articulated by Boyd are sufficient on their own, when viewed in their totality, the facts
known to Boyd give rise to reasonable suspicion.
         Defendant contends that this case closely resembles the facts in State v. Jacobs, 

, 

 (2003). In Jacobs, officers observed three men on a sidewalk near a bank and automated teller machine at approximately 6:00 p.m. 

. The officers considered the
“entire ‘downtown area’ as a ‘high drug traffic area.’ ” 

The men were huddled close together and looking around
nervously when one of them, the defendant, passed money
to one of the others. 

 Suspecting that a drug transaction
was taking place, the officers approached the group and one
officer proceeded to search the defendant and located a plastic bag containing marijuana. 

 On appeal, the defendant
argued that the officer’s search was unlawful because the
officer lacked probable cause to arrest him. 

. We
agreed, noting that there was no evidence that the location
that the exchange occurred in was the site of “continuous,
hand-to-hand drug traffic” and that the defendant was
merely observed exchanging money near an ATM at around
6:00 p.m. 

. We concluded that those facts, even
when combined with the defendant’s furtive actions, did not
provide the officer with probable cause. 

.
         Notably, the issue in Jacobs was whether the officers
had probable cause, whereas here the question is whether
Boyd had reasonable suspicion. And, as the Supreme Court
has explained, the reasonable suspicion standard justifying
a police intrusion on the liberty interest of a person who is
stopped “was intended to be less than the standard of probable
688                                                    State v. Hollins

cause to arrest.” Holdorf, 

. “Reasonable suspicion does not require that the articulable facts observed by
the officer conclusively indicate illegal activity, but, rather,
only that those facts support the reasonable inference that a
person has committed a crime.” State v. Hammonds/Deshler,

, 

 (1998) (emphases in original); see also State v. Westcott, 

, 

 (2016), rev den, 

 (2017) (“Reasonable
suspicion is a relatively low barrier, less demanding than
probable cause; it does not require certainty about the significance of particular facts.” (Internal quotation marks and
brackets omitted.)). We note that, although we concluded in
Jacobs that the officer did not have probable cause to arrest
and search the defendant, we gave no indication that the
facts were insufficient to stop the defendant in order to
investigate further.1
         That said, this case also differs from Jacobs. Unlike
the officer in Jacobs, who described the entire downtown
area of Salem as a high crime area, Boyd described Purple
Parrots generally as “hot spots” for drug and weapon crimes
and further indicated that, at that particular Purple Parrot
location, he had been making arrests about every other
week.
         We agree with defendant that his mere presence outside of a Purple Parrot establishment is of little significance
when viewed on its own. See State v. Goguen, 

, 

 (2021) (stating that the defendant’s
presence in a Purple Parrot parking lot—where the officer
testified that “it was ‘not uncommon’ for people to engage
in drug activity”—was of little consequence when the officer did not specifically identify that particular location as a
high crime area). “We 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) (internal
quotation marks omitted). “Rather, the police must also identify particularized facts about the defendant that support

   1
     As in Jacobs, we express no opinion here whether the facts of that case
would have supported reasonable suspicion.
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 (2021)                             689

the inference that the defendant’s presence at the location
is indicative of criminal activity.” State v. Washington, 

, 

, (2017). In this case, Boyd’s
testimony provided that nexus. Boyd suspected that a drug
transaction had taken place not only because of defendant’s
close proximity to the Purple Parrot, but because he had
observed him engage in a distinctive hand-to-hand transaction with a woman who, afterwards, had walked towards
the Purple Parrot.
          Defendant acknowledges that we have concluded
that an officer’s observation of a hand-to-hand transaction
can establish reasonable suspicion. See State v. Briggs, 

, 

, rev den, 

 (2009)
(concluding that at 2:00 a.m., in an area where drug dealing
was common, officers had reasonable suspicion after observing defendant hand something to bicyclists from his car and
then drive away when officers approached, while the bicyclists departed in different directions); State v. Loud, 

, 

, rev den, 

 (1997) (reasonable suspicion to investigate a drug crime when defendant had a brief visit with a suspicious, unidentified person
in an area known for drug sales, defendant did not stop his
car for four blocks, and defendant made furtive gestures suggesting that he was passing something to the passenger in
his car before finally stopping); State v. Norman, 

, 

, rev den, 

 (1984) (reasonable suspicion to stop defendant where officer had observed
defendant engage in what his training and experience told
him was “classic hand-to-hand sale of narcotics” between
defendant and another person, in front of a known hangout for drug dealers and users (internal quotation marks
omitted)). But, according to defendant, because the hand-to-hand transaction here occurred “in a parking lot associated
with multiple businesses, in broad daylight, at 2:00 in the
afternoon,” between people unknown to Boyd, Boyd’s suspicion was not objectively reasonable. We disagree.
         Boyd testified that, based on his training and experience, the transaction that he observed was indicative of
a drug transaction. An officer’s training and experience
may be taken into consideration when determining reasonable suspicion. Walker, 

. However, an
690                                            State v. Hollins

officer’s training and experience is not presumed; it must
be established through “evidence of specific articulable facts
that permit an officer to make a reasonable inference based
on the officer’s pertinent training and experience.” Holdorf,

. “Put another way, an officer must offer
something—either by drawing on the officer’s training and
experience or other specific and articulable facts about the
encounter—to show why a defendant’s ‘otherwise innocuous’
conduct was, in fact, more suggestive of criminal activity
than it appears.” Washington, 

 (quoting
State v. Alvarado, 

, 

 (2013)).
Our opinion in Walker is instructive.
          In Walker, an informant called to report a suspected
drug deal in a University parking lot around 12:00 p.m. 

. The informant reported that a white van
driven by a woman had pulled into the parking lot, and the
defendant had ridden his bicycle up to the van and entered
it. 

 The informant saw the defendant reach into his pants
and remove something, which the woman examined; the
woman and the defendant then began “smoking something.”

 An officer arrived and saw the defendant exit the van and
the woman drive the van away. 

 The defendant was ultimately arrested and admitted to having methamphetamine
in his pocket. 

. At the suppression hearing, the officer testified about his training and experience and how the
information that he had received from the informant was
consistent with the “way a drug deal happens.” 

 We concluded that the officer’s stop was supported by reasonable
suspicion, noting that the officer’s training and experience,
combined with the informant’s observations, allowed him to
“describe the ‘observable’ and ‘articulable’ facts that led him
to suspect that defendant and the van’s driver had engaged
in illegal drug activity.” 

 at 405 (quoting State v. Valdez,

, 

 (1977)). That is, “the detention was based on a series of events that, considered in combination, an officer with training and experience regarding
drug transactions could identify as distinctively associated
with criminal activity: the quick meet-up of two people in a
parking lot, their brief examination of something that one
of them pulled from his clothing, their subsequent ‘smoking
something’ and their quick departure.” Id. at 405.
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 (2021)                             691

         Like the officer in Walker, Boyd described his past
training and experience, which included on-the-job training
with the MADGE team and personal observations of hand- to-hand drug transactions. Boyd described what a typical
drug transaction involved and indicated that the encounter
that he observed between defendant and the woman was
typical for such transactions. True, the transaction occurred
in the middle of the day between two people unknown to
Boyd, and he did not see what the two exchanged. However,
Boyd also noted the distinctive character of the hand-to-hand exchange and its proximity to a specific Purple Parrot
that he associated with illegal drug activity. Further, as
Boyd approached defendant, he noticed a handful of cash
in his hand, which enhanced Boyd’s initial suspicion that a
drug transaction had taken place. We conclude that those
facts, when viewed in their totality, objectively support
Boyd’s subjective suspicion. See also Norman, 

 (concluding that officer had reasonable suspicion to
stop the defendant after officer saw, in light of his training
and experience, what looked like a “classic hand-to-hand
sale of narcotics” taking place at a known hangout for drug
dealing, despite the fact that the officer did not see what had
been exchanged nor did the officer know the people involved
in the transaction).
         Although defendant’s statement to Boyd—that he
had just given the woman, who he said was his girlfriend,
some money to play the games—offers an innocent explanation for the hand-to-hand transaction, that does not negate
Boyd’s reasonable suspicion. See State v. Villemeyer, 

, 

 (2009) (“The fact that there might
be innocent explanations for conduct does not mean that
the conduct cannot also give rise to reasonable suspicion of
criminality.” (Internal quotation marks omitted.)); see also
State v. Faubion, 

, 

 (2013)
(stating that “the existence of possible lawful explanations
for circumstances or behavior does not negate the development of reasonable suspicion of criminal activity”). Boyd
articulated specific facts about his training and experience
and the circumstances he observed and how, collectively,
they led him to believe that the hand-to-hand transaction
he had seen was a drug transaction. Those facts objectively
692                                           State v. Hollins

supported Boyd’s belief and, therefore, the trial court did not
err in denying defendant’s motion to suppress.
        Affirmed.