State v. Madden

                                       787

   Argued and submitted November 19, 2020; convictions on Counts 1, 2, and
   3 reversed and remanded, remanded for resentencing, otherwise affirmed
                             November 24, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   JASON BENJAMIN MADDEN,
                       Defendant-Appellant.
                     Lane County Circuit Court
                        201305158; A170903
                                   

    Defendant assigns error to the trial court’s denial of his motion to suppress
evidence that he contends was discovered after he was unlawfully seized in violation of Article I, section 9, of the Oregon Constitution. Officers handcuffed defendant when they encountered him outside of a house that was the subject of a
search warrant. The officers brought defendant inside while they secured the
house. After securing the house, the officers continued to detain him and interviewed him in a private room. Defendant argues that his continued detention
after the house was secured was an arrest made without probable cause. The
state argues that defendant was not arrested, but merely stopped, and that the
stop was supported by reasonable suspicion. Held: Defendant was arrested without probable cause when the officers continued to detain him in handcuffs and
interviewed him after officer safety concerns dissipated.
    Convictions on Counts 1, 2, and 3 reversed and remanded; remanded for
resentencing; otherwise affirmed.



   Lauren S. Holland, Judge.
   Zachary Lovett Mazer, 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.
   Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. On the brief were Ellen F.
Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Adam Holbrook, Assistant Attorney General.
   Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   SHORR, J.
   Convictions on Counts 1, 2, and 3 reversed and remanded;
remanded for resentencing; otherwise affirmed.
788                                           State v. Madden

        SHORR, J.
         Defendant appeals for the second time, assigning
error to the trial court’s denial of his motion to suppress evidence that he contends was discovered after he was unlawfully seized in violation of Article I, section 9, of the Oregon
Constitution. Police officers detained defendant when they
discovered him sitting in a car in the driveway of a house
that was the subject of a search warrant. The officers handcuffed defendant and his passenger, brought them inside,
and questioned defendant after the house was secured. Over
the course of two interviews, defendant made incriminating
statements and gave his consent to search the car, which
led to the officers’ discovery of the evidence at issue. In the
first appeal, the Supreme Court concluded that the initial
seizure and transportation of defendant into the house were
justified for officer safety reasons, but defendant’s continued detention after the house was secured was not similarly
justified. The court remanded the case to the trial court to
determine whether that later police conduct was instead
justified by reasonable suspicion that defendant had committed a crime. State v. Madden, 

, 

 (2018). On remand, the trial court concluded that the
officers had reasonable suspicion and that defendant’s continued seizure after officer safety concerns dissipated was
constitutional. Defendant appealed. For the reasons below,
we agree with defendant that he was unlawfully seized.
Consequently, we reverse and remand Counts 1, 2, and 3;
we also remand for resentencing.
         We review a trial court’s denial of a motion to suppress evidence for legal error. We are bound by the trial
court’s findings of fact if there is constitutionally sufficient
evidence to support them. To the extent that the trial court
did not make express findings of fact, we presume the court
found facts consistent with its ultimate conclusion. State v.
Maciel-Figueroa, 

, 

 (2017).
No new evidence was presented on remand; the trial court
expressly referenced, the Supreme Court’s recitation of the
facts, indicating that it found the facts as summarized in
that recitation. Accordingly, we restate the Supreme Court’s
description of the historical facts, and discuss additional relevant facts below.
Cite as 

 (2021)                                  789

     “In January 2013, detectives with the Springfield Police
  Department obtained a warrant to search the residence of
  Sheehan, a ‘known user and dealer of methamphetamine,’
  for evidence of delivery of controlled substances. The
  search warrant authorized the police to search Sheehan’s
  person and residence. It did not refer to any other person or
  location.
      “Late in the morning of January 30, 2013, the detectives
  and other members of the Springfield Police Department—
  eight in total—parked their cars down the street from
  Sheehan’s house and proceeded to the house on foot,
  intending to execute the warrant. As they approached the
  house, they saw two men—defendant and Lando—sitting
  in a car parked in the driveway. Three of the officers—
  Detectives Potter, Hargis, and Espinosa—immediately
  recognized Lando, who was sitting in the front passenger’s
  seat with the door slightly ajar, as a person whom they had
  arrested on multiple occasions for drug crimes. None of the
  officers recognized the man sitting in the driver’s seat, i.e.,
  defendant.
      “Detectives Potter and Hargis quickly moved toward
  the car to ‘contact’ defendant and Lando. Before Potter
  reached the car, he saw defendant reach back and shove
  a bag down between the seats. Potter removed defendant
  from the car, directed him to keep his hands raised, and
  handcuffed him, while Hargis did the same with Lando.
  Both men were subjected to pat-down searches, during
  which Hargis pulled two baggies, one of which appeared
  to contain methamphetamine, from Lando’s pocket. All of
  this occurred very quickly, and defendant and Lando were
  taken into the house as the officers entered it to execute the
  search warrant a few minutes later.
      “After securing the house, most of the other officers
  became engaged in the search, while Potter assembled
  defendant, Lando, and the house’s two occupants in the
  living room. Potter then administered Miranda warnings
  to them and proceeded to take them, one at a time, into a
  separate room to question them. Defendant was the first
  person who was questioned in that manner: Potter had
  separated him from the others and commenced to question
  him within five to 10 minutes of entering the house. During
  that initial questioning, Potter asked defendant about the
  car and whether it contained anything that was illegal.
  Defendant responded that the car belonged to a friend, and
790                                                         State v. Madden

    eventually acknowledged that it contained methamphetamine and a gun. Potter asked if defendant would consent
    to a search of the car, but defendant seemed reluctant.
    Potter then told defendant to ‘think about it’ while he questioned Lando and the others. Later, when Potter questioned
    defendant a second time, defendant agreed to the search
    and signed a form that stated that he was consenting to the
    search freely and voluntarily and that he understood that
    he could refuse to give consent. In the search of the car that
    followed, the police found a large amount of methamphetamine, a handgun, and other incriminating items inside
    the bag that Potter had seen defendant push between the
    seats. Defendant was charged with unlawful possession
    and delivery of methamphetamine and, based on his status
    as a felon, unlawful possession of a firearm.”
Madden, 

 (footnotes omitted).1
         At the original motion to suppress hearing, Potter
described his knowledge of the house where he encountered
defendant. He testified that the department had received
reports of drug deals at the house through an anonymous
tip line. Potter also worked with an informant who confirmed that methamphetamine was sold at the house and
who described the house as a “flophouse” where people were
“constantly coming and going.” Potter testified that drug
transactions took place both inside and outside the house.
         In addition to his specific knowledge of the house,
Potter described his extensive training and experience with
drug crime investigations. According to Potter, drug deals
often happened in cars and Potter had personally seen over
one hundred drug transactions occur between people in
cars. Potter was also aware, based on his training and experience, that drugs are transported from Mexico to Oregon
through California and he observed that defendant’s car
had California license plates.
         The trial court denied the motion to suppress,
deciding that the seizure of defendant was lawful for officer
safety reasons. The trial court declined to address the state’s
other argument, that the stop was justified by reasonable
    1
      The state does not contend that defendant’s later consent to the search of
his car was attenuated from the officer’s prior stop or seizure such that the search
was independently justified by that consent.
Cite as 

 (2021)                                         791

suspicion. Id. at 710. On review, the Supreme Court agreed
that officer safety concerns justified some of the officers’
actions, but not all. Specifically, the court concluded that
directing defendant to exit the vehicle, patting him down,
handcuffing him and bringing him into the residence were
all reasonable safety precautions to minimize the risk in
entering and securing the house. Id. at 721. But, the court
explained, “there was no reasonable officer safety justification for continuing to detain him, in handcuffs, Mirandizing
him, repeatedly transporting him alone into another
room, and repeatedly questioning him” once the house was
secured. Id. at 722. Those later actions “ultimately produced
the evidence at issue.” Id. at 723. Therefore, because that
conduct was not justified by the officer safety doctrine, the
court remanded the case to the trial court to “reach the
reasonable suspicion argument it did not address.” Id. at
726.
          On remand, the state argued that Potter and the
officers’ detention of defendant after securing the house was
a lawful stop justified by reasonable suspicion. The state
argued that defendant’s presence at a high-traffic, known
drug house, his association with a known drug dealer, his
California license plates, and his attempt to hide his backpack were all facts that supported Potter’s reasonable suspicion that defendant was engaged in criminal activity.
Defendant contested the state’s reasonable suspicion theory.
In addition, defendant responded that the seizure was not a
stop, but an arrest. And, defendant argued, that arrest was
not supported by probable cause based on the circumstances
known to the officers.2 The trial court rejected defendant’s
arguments. It decided that defendant was stopped, not
arrested, and that the stop was justified by reasonable suspicion. After a stipulated-facts trial and conviction, defendant appeals for the second time, assigning error to the trial
court’s denial of his motion to suppress. The parties raise
substantially the same arguments on appeal. Because the
requisite level of constitutional justification depends on the
type of seizure, we begin by determining whether defendant
was arrested or merely stopped.
   2
     The state initially contended that defendant’s probable cause argument
was outside the scope of the remand, but later withdrew that argument.
792                                            State v. Madden

         Article I, section 9, guarantees the right against
unreasonable searches and seizures. Only some policecitizen encounters are protected under that provision. “At
one end of the continuum are mere encounters for which no
justification is required,” and at the other end lie arrests
“which involve protracted custodial restraint and require
probable cause.” State v. Fair, 

, 

(2013). In between are “temporary detentions for investigatory purposes,” or stops, which “require reasonable suspicion.” 

 Arrests and stops are seizures that implicate the
protections of Article I, section 9, whereas mere encounters
are not. 

. When a defendant moves to suppress
evidence discovered because of a seizure, the state bears the
burden of proving that the defendant was lawfully seized.
State v. Blackstone, 

, 

 (2017).
         The distinction between stops and arrests is sometimes a murky one, but generally speaking, arrests and stops
differ in the scope, duration, and degree of the restraint.
Fair, 

 (describing stops as “temporary detentions for investigatory purposes” and arrests as seizures
involving “protracted custodial restraint”); ORS 133.005(1)
(defining an arrest as “to place a person under actual or constructive restraint or to take a person into custody for the
purpose of charging that person with an offense”).
          During stops, officers may detain suspects for a reasonable time to investigate a crime. ORS 131.615. Officers
may also use the degree of force reasonably necessary to
make the stop and ensure the safety of the officer and others
present. State v. Sepulveda, 

, 640, 

 (2017). However, “the duration of the detention or intensity of the officer’s actions can convert a stop into an arrest
under Article I, section 9.” State v. Medinger, 

, 

 (2010). And “a restraint that goes beyond
the scope of a stop will result in an illegal arrest, if it is not
based on probable cause.” State v. Morgan, 

, 

, rev den, 

 (1991). Handcuffing
a suspect is generally, though not always, a restraint that
exceeds the scope of a stop. State v. Werowinski, 

, 

, rev den, 

 (2002). “An officer confronted with safety concerns may handcuff a person
without converting the stop into an arrest, but the stop is
Cite as 

 (2021)                             793

converted into an arrest if the officer continues to use force
to restrain the person after the officer’s safety concerns have
dissipated.” State v. Hebrard, 

, 

 (2011). To determine whether a “stop escalated to an
arrest, we make ‘a fact-specific inquiry into the totality of
the circumstances of the particular case.’ ” 

 (quoting State
v. Ehly, 

, 

 (1993)).
         As an initial matter, although it is clear from the
record and the Supreme Court’s opinion that defendant
was handcuffed for some period of time after the house was
secured, the parties disagree about the precise length of
time. Potter testified that he could not remember exactly
when defendant’s handcuffs were removed. He recalled that
defendant “was sitting there [in the living room] handcuffed”
until the first interview, which was five to 10 minutes after
the officers entered the house, and that defendant was no
longer handcuffed by the second interview. The trial court
did not make an express finding on the issue. The state
urges us to conclude that the court impliedly found that the
handcuffs were removed at the outset of the first interview.
Defendant counters that that finding is not supported by
the record or a necessary predicate to the court’s ultimate
conclusion. Nonetheless, defendant contends that, under the
totality of the circumstances, defendant was arrested, even
if the handcuffs were removed at the outset of the first interview as the state insists. We agree. As we explain below, the
circumstances were sufficiently coercive that defendant’s
detention rose to the level of an arrest.
         Accepting, without deciding, that defendant’s handcuffs were removed at the beginning of the first interview,
defendant was restrained in handcuffs for at least several
minutes after officer safety concerns dissipated. That physical restraint weighs in favor of the conclusion that defendant was arrested when considered with other circumstances here, even if it was not unduly long. Sepulveda is
illustrative. In that case, officers encountered the defendant
near a reported disturbance. Believing that the defendant
was reaching for a weapon, the officers drew their firearms
and ordered the defendant to raise his hands in the air and
get on his knees. The officers then handcuffed the defendant and frisked him but did not find any weapons. After
794                                           State v. Madden

the frisk, the officers did not remove the defendant’s handcuffs. Instead, they advised the defendant of his Miranda
rights and then obtained his consent to search his pockets.
Sepulveda, 288 Or App at 633-34. We described the events in
that case as a “brief encounter.” Id. at 638. Nonetheless, we
concluded that the defendant was arrested when the officers
continued to use force to detain him after the frisk revealed
that the defendant did not have a weapon. Id. at 640-41.
         Here, like Sepulveda where the restraint was not
lengthy, other circumstances also weigh in favor of our conclusion. While handcuffed, officers Mirandized defendant
and the others and read the search warrant to them. Eight
officers were present in the house, searching for evidence
of drug crimes. Potter then separated defendant from the
others and took him to the interview room, where Potter
questioned him about his relationship to the homeowner, his
reason for being in the driveway, and whether he had drugs
and weapons in his car. A reasonable person would understand from that series of events that he was at a minimum
not free to go and was enmeshed in the execution of the warrant. Those circumstances, in combination with the actual
restraint of the handcuffs, affected the scope and intensity
of the investigation such that it became an arrest.
          The state offers State v. Bush, 

, 

 (2006), and State v. Cottrell, 

, 

, rev den, 

 (2007), in support of its contention that defendant was not arrested here. In Bush, officers
responded to a call complaining that the defendant would
not leave the caller’s front porch. The officers approached
the defendant and told him to stand in the driveway away
from the front door. One of the officers spoke with the defendant in the driveway but did not handcuff him or confine
him in their patrol car. Bush, 

. We held
that “the police officers’ conduct was fully consistent with a
routine and lawful stop.” 

. We likewise concluded
that the defendant was not arrested in Cottrell. 

. There, an officer approached the defendant, asked
him to step out of his car, and then questioned a convenience
store clerk while the defendant waited outside with a second
officer. 

. The officer did not use any restraints or
confine the defendant in the back of his patrol car. 

.
Cite as 

 (2021)                              795

The state’s attempt to analogize those cases to this one is
not persuasive, given the differences in the scope, duration,
and degree of the restraint here.
         One particular difference is that, unlike the present
case, neither of the defendants in Bush or Cottrell were ever
handcuffed, which the state does not meaningfully contend
with. Instead, the state suggests that defendant was handcuffed so briefly after the house was secured that it should
not factor in our analysis. But defendant was handcuffed
after safety concerns dissipated, and, although the decision was initially justified by officer safety concerns, that
heightened degree of restraint bears weight in our analysis.
Werowinski, 

 (“handcuffing a suspect may
be a key factor in transforming the detention associated
with a stop into an arrest”). We do not suggest that failure
to remove a suspect’s handcuffs immediately after officer
safety concerns dissipate will always amount to an arrest.
Whether and under what conditions an officer removes a
suspect’s handcuffs is one factor to be considered in context
with all of the circumstances of a defendant’s seizure. We
only conclude that, under the totality of the circumstances
here, defendant’s detention exceeded the scope of a stop.
          Because defendant was arrested, the state bore the
burden of proving that probable cause existed to justify the
arrest. Under Article I, section 9, “probable cause exists only
if the arresting officer subjectively believes that it is more
likely than not that an offense has been committed and that
belief is objectively reasonable.” State v. Williams, 

, 

 (2001). In determining whether objective probable cause exists, we consider “the totality of the
circumstances presented to the officer and the reasonable
inferences that may be drawn from those circumstances.”
State v. Sinkey, 

, 

 (2020).
         Here, the state contends that the following circumstances, considered in combination, support a determination
that Potter had probable cause to believe defendant “had
engaged in illegal drug activity.” First, defendant was sitting in a car that was parked in a driveway of a house known
for frequent drug activity and was the subject of a targeted
investigation. Potter was aware that drug sales occurred
796                                          State v. Madden

inside and outside of the house. Second, Potter knew from
previous interactions that defendant’s passenger Lando was
a drug dealer and user and Potter found methamphetamine
in Lando’s pocket. Third, Potter saw defendant shoving
his backpack between the seats, as he approached, which
Potter viewed as an attempt to conceal the backpack from
the police. Finally, Potter had significant training and experience with drug transactions and had witnessed over 100
drug sales in cars.
         We disagree with the state’s view of the circumstances here. The facts known to Potter, viewed individually
or collectively, were not sufficient to establish a reasonable
basis to believe that, more likely than not, defendant committed a drug crime. To begin with, Potter’s only observation which related specifically to defendant’s behavior, was
of defendant’s act of shoving his backpack between the seats.
Even assuming defendant saw Potter approach the car, that
observation, without more, would not support an objectively
reasonable inference that defendant had engaged in drug
activity. Because “[a] person might wish to hide any number of personal effects from law enforcement officers” for
innocent reasons, “a person’s desire to keep personal items
private does not, by itself, indicate that those items are contraband.” State v. Kelly, 

, 

(2015).
         And apart from his observation of the backpack, the
facts supporting Potter’s belief that defendant committed a
crime were not specific to defendant and related instead
to defendant’s proximity to drug use by others. State v.
Sunderman, 

, 

 (2020) (officer’s belief that the defendant probably possessed methamphetamine was not objectively reasonable where “the only
specific and articulable fact particularized” to the defendant
was the defendant’s possession of two unused methamphetamine pipes). Thus, although one potential explanation
for defendant’s presence at the house and association with
Lando is that defendant had, or was about to buy or sell
drugs, the facts known to Potter did not support a conclusion that that criminal explanation was more likely than
other noncriminal explanations. State v. Barraza, 

, 

 (2006) (“Although the presence
Cite as 

 (2021)                                              797

of an innocent explanation does not necessarily dispel probable cause, the incriminating explanation must be the more
likely one when all of the facts are considered.”). Because
the totality of the circumstances here fail to demonstrate
a probability that defendant was engaged in illegal drug
activity, we conclude that probable cause did not exist to
arrest defendant.
         In sum, we conclude that defendant was unlawfully arrested when he was detained after officer safety
concerns dissipated. Further, probable cause did not exist
to justify the arrest. The evidence at issue was discovered
as a result of defendant’s unlawful arrest and must be suppressed. Lastly, we conclude that the trial court’s erroneous
admission of that evidence was not harmless as to Counts 1
through 3 of the indictment.3
       Convictions on Counts 1, 2, and 3 reversed and
remanded; remanded for resentencing; otherwise affirmed.




     3
       Defendant was convicted of unlawful delivery of methamphetamine (Count 1),
unlawful possession of methamphetamine (Count 2), possession of a firearm as
a felon (Count 3), and unlawful possession of methamphetamine (Count 4). The
evidence that gave rise to the convictions in Counts 1 through 3 was the subject
of the motion to suppress. The evidence relating to Count 4 related to a separate
incident that was not litigated in the motion to suppress.