State v. Horner

                                 385

         Submitted June 4, reversed and remanded July 14, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  DAVID RAY HORNER,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   19CR18051; A172285
                             

   Angel Lopez, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Reversed and remanded.
386                                                           State v. Horner

           PER CURIAM
         Defendant appeals a conviction of felon in possession of a restricted weapon, ORS 166.270(2), following a
conditional guilty plea. On appeal, defendant assigns error
to the trial court’s denial of his motion to suppress a dagger and inculpating statements made after a warrantless
search during a traffic stop. The state concedes that there
was insufficient evidence adduced during the suppression
hearing to establish the reasonable suspicion required to
support a traffic stop under the Fourth Amendment.1 For the
reasons expressed below, we accept the state’s concession.
          At the suppression hearing, the state presented
only the testimony of Li, the officer who arrested defendant.
Defendant was a passenger in a car that was stopped by
a different officer, Currier, for traffic violations. Li—one of
seven officers responding to the traffic stop—did not know
why the original traffic stop occurred and testified that
she “responded to cover [Currier] … on that traffic stop.”
Currier did not testify at the suppression hearing. As a
result, the record is devoid of sufficient facts to support a
conclusion that Currier had objective, reasonable suspicion
to stop the car in which defendant was a passenger.2 See
Arizona v. Johnson, 

, 

, 

 (2009) (a traffic stop is a temporary seizure of the
driver and passengers); State v. Sexton, 

, 

 (2016) (under Fourth Amendment, in cases involving passengers in vehicles stopped for traffic infractions,
court must initially determine whether reasonable suspicion justified the traffic stop). It follows that defendant, as a
passenger of the stopped car, was seized under the Fourth
Amendment. It also follows that, since Li failed to articulate facts sufficient to establish reasonable suspicion for the
traffic stop, evidence obtained as a result of the stop must be
     1
       Defendant also makes arguments under Article I, section 9, of the Oregon
Constitution, but we need not address those arguments in light of the state’s
concession.
     2
       While Li did testify that she knew what the driver was cited for, that knowledge gained after the fact is not sufficient to support reasonable suspicion. See,
e.g., United States v. Ramirez, 

 (9th Cir 2007) (“Where one
officer knows facts constituting reasonable suspicion … [and] communicates an
appropriate order or request, another officer may conduct a warrantless stop,
search, or arrest without violating the Fourth Amendment.”).
Cite as 

 (2021)                            387

suppressed. Sexton, 

; see also United States
v. Lopez-Soto, 

 (9th Cir 2000) (holding that the reasonable suspicion standard applies to traffic
stops under the Fourth Amendment and determining that
evidence obtained in violation thereof must be suppressed).
        Reversed and remanded.